Senate debates

Thursday, 15 June 2006

Australian Capital Territory Civil Unions Legislation

9:47 am

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

I, and also on behalf of Senators Ludwig and Stott Despoja, move:

That the instrument made by the Governor-General on 13 June 2006 under subsection 35(2) of the Australian Capital Territory (Self-Government) Act 1988, disallowing the Civil Unions Act 2006 (ACT), be disallowed.

I am pleased to be moving this motion to disallow the federal government’s intervention in the ACT Civil Unions Act and to be doing so on behalf of all the opposition parties in the Senate. Unfortunately, there are not a large number of debates in the Senate in which parliamentarians have the opportunity to truly engage with an issue and argue from the bottom of their hearts about something that means something very significant to them. For me, this is one such debate, as it was last year when we debated in the parliament the ban on same-sex marriages.

One of the things that I think helps parliamentarians to be able to engage with these sorts of issues is when they know people who are directly impacted by the legislation. That was the case for me last year, and it is the case for me again today. I spoke last night to a friend of mine, Hannah. She sent me a copy of an email that she had sent to a number of parliamentarians, and I will share that email with the Senate. She wrote:

My partner and I had been planning to celebrate our union with a civil union in Canberra in September this year. Unfortunately, all the plans are now on hold again.

This is something we and our families have been looking forward to since we announced our intentions at Christmas last year. My partner’s children, who live with us and see their dad every weekend, have been especially excited and have been asking whether they are allowed to call my parents their “step-granddad” and “step-grandma” yet. For them, seeing their mum and I enter into a civil union in front of family and friends helps send the message that I am committed to being their stepmum, that we are family, and that we are together for the long haul. I want to do everything I can to provide a secure and nurturing home environment for my partner’s children.

Whatever happens regarding the ACT Civil Unions Act, we are going to have a ceremony and celebration anyway, however, it is very hurtful that the Federal Government is now going out of its way to dismantle the closest thing we have to relationship equality in Australia. I don’t want to have a big political debate, I just want to do the very best I can to be a good partner and a good stepparent, and for my stepdaughters to be able to say “that’s my stepmum” at school without sparking a Daily Telegraph front page.

Hannah told me last night about how her partner’s excited children had been planning what they were going to wear to the civil union ceremony. She told me about explaining to her partner’s 12-year-old daughter that John Howard was going to try to stop them from being able to have their ceremony in Canberra. The 12-year-old said, ‘It’s none of his business and it is not up to him who can fall in love.’ I reckon that 12-year-old has a better handle on what this debate is about than a lot of parliamentarians do. She understands that this debate is about love. It is about who can love each other and who can have their relationships recognised. The Greens are proud to say that all love is equal and that every Australian has the right to have their relationship recognised before the law.

Yesterday morning, Senator Bob Brown and I were very briefly introduced to two young men from Canberra who want to have their civil union relationship recognised. They could not understand how their love for each other could possibly threaten the love that other Australians have for their partners all around Australia. And that was a sentiment expressed by a letter writer in the Sydney Morning Herald on Saturday. He wrote:

On Monday morning my partner and I went to work, then met some friends to see a movie, ate Thai takeaway while watching Enough Rope, then went to bed. On Tuesday we went to work, met some other friends for dinner, drank a bit too much red wine, then went to bed. On Wednesday morning, work again and tonight we’ll probably just watch a bit of tele.

In those three days George Bush, John Howard, Philip Ruddock and the Vatican all announced that recognition of our relationship was a threat to heterosexual marriage and the family itself. And here we were thinking we were just living our lives.

Apologies to those whose marriages and families were destroyed as a result of our actions. We will try to be more careful in the future.

It is sad that we are having this debate here today and, as I say, it is the second time since I have been in parliament that we have seen the government go to extraordinary lengths to ensure that same-sex couples remain second-class citizens in their eyes. I hope that we do not have in the debate here in the Senate some of the same archaic attitudes that we heard during the debate on banning same-sex marriage last year.

Perhaps I should not have been quite so astounded to hear views in parliament that were so out of touch with sentiment in the Australian community when we had that debate last year, but I was genuinely astounded at how out of touch some of the attitudes expressed in the debate last year were. I felt as though I had stepped back into the Dark Ages when I heard some of the arguments being put forward by parliamentarians.

Now we face the extraordinary spectacle of the Attorney-General scurrying off to Yarralumla to use the Commonwealth’s power under the Australian Capital Territory (Self-Government) Act to quash the ACT Civil Unions Act 2006. We understand that he has done this before briefing his colleagues who had expressed concerns about this move. In effect, he delivered a fait accompli to his party room when he knew that a number of his colleagues and the voters of the ACT want this issue resolved differently.

What is all the fuss about? What has happened in the ACT that is so dangerous that the minister, at the behest of the Prime Minister no doubt, has bypassed parliament, bypassed his own party room and quashed the law passed by the duly elected ACT legislature? It is a law that was part of the ACT government’s platform not once but during two elections. What is all the panic about? I do not know, and there is only the slightest of clues in the explanatory statement that accompanies the minister’s disallowance. It says that his disallowance ‘supports the fundamental institution of marriage’ and that ‘the unique status of marriage is undermined by any measure that elevates other relationships to the same or similar level of public recognition and legal status’. That is difficult to understand and make sense of when you note these comments made by Minister Ruddock on ABC radio in January this year:

... most of the coalition would say that if a person wished to enter into a civil union, as distinct from a marriage ... we have no problem.

He went on to say, ‘It is a matter for the states and territories.’ It appears that that view has changed because, after the Attorney-General said in January that he had no problem with civil unions, he went to visit the Governor-General and have this changed. The Prime Minister said last week:

The fundamental difficulty I have with the ACT legislation is a clause which says that a civil union is different from a marriage but it has the same entitlements, now that is the equivalent of saying to somebody who’s passed the HSC and wants to get into a particular course, it’s saying to them well you haven’t got the requisite tertiary education score but we will let you go in the course anyway. I mean it’s a little bit hypocritical ...

Putting aside the fact that this is exactly what this government’s higher education policies do allow, the explanation is pathetic. It is hard to know what the Attorney-General and the Prime Minister are on about. How on earth does allowing same-sex couples to have civil unions undermine marriage? How does disallowing them from doing this support marriage? Is there anyone who genuinely believes that this is the case?

Same-sex couples have been having their relationships recognised by law in marriages or civil unions of some form in many countries for many years. In the United Kingdom, Canada, New Zealand, Belgium, the Netherlands, South Africa, Ireland and Scotland, same-sex couples can and do have civil unions. Many Australians, including friends of mine, have moved to those countries in order to have their relationships recognised and are no longer here, contributing to the Australian community, because they wanted to live in a society in which their relationship is recognised and where they could contribute to the country they live in.

Is the minister really asking the Senate and the people of the ACT to believe that the marriages of heterosexual couples in all these countries where civil unions and gay marriage are now allowed have been undermined? When Prime Minister Blair was here earlier this year, did the Prime Minister inquire how his marriage was? Presumably his marriage, like all other marriages in Britain, has been undermined by the legal union of thousands of British same-sex couples! That is the Prime Minister’s argument and presumably that is what he thinks. I ask this rhetorical question because it highlights the utterly ridiculous nature of the government’s argument. The reality is that the consequences of these countries allowing same-sex unions is that thousands of loving couples have been able to enjoy the legal and emotional benefits of having their relationships recognised by the law. In short, all that has happened is that thousands of loving couples and their families and friends have been made happier—and no-one has been harmed. No marriages have failed as a result and nothing has been undermined.

The Prime Minster was a bit more forthright on this issue during the debate on the Marriage Act in 2004, in which he revealed that for him same-sex marriages would ‘do nothing to support the survival of the species’. This outrageous remark by the Prime Minister is perhaps a clue to the real motivation behind his government’s actions. It is a motivation based in prejudicial, homophobic views typical of the 1950s rather than the Australia of the 21st century. That the Prime Minister and his colleagues are increasingly out of step with the community on this matter is borne out by recent polling.

Last week the Age provided research extrapolated from the Australian Survey of Social Attitudes, a poll of more than 2,000 people conducted last year, which suggested support for civil unions in Australia is about 50 per cent. Moreover, about two-thirds of Australians say that they accept the idea of gay and lesbian relationships. Sociologist Shaun Wilson commented:

It’s improved markedly, with young people, in particular, overwhelmingly, supportive of both gay marriage and civil unions.

Perhaps we should not be surprised that those community attitudes are not reflected in here. When we look in particular at the parliamentarians on the government bench, we see that they are not representative of the community as a whole. They are older, more conservative and more religious than we see in the Australian community. What is very sad, though, is that the government is not in tune with the community’s acceptance and celebration of love—because that is what this is all about. This is the message that I have received loud and clear from those who have been calling, faxing and emailing my office. And it is a message that I received when I attended the first illegal gay marriage in Sydney, held for two radio presenters from a commercial radio station.

I want to share with the Senate some of the views that have been expressed to me by people who have contacted my office. One email said:

I sit here and watch countries like the UK, Canada, New Zealand, Belgium, The Netherlands, South Africa, Ireland and Scotland, just to name a few, move forward in protecting same-gender couples and ensuring that they are afforded legal recognition within their relationships, but sadly in Australia we are regressing and I can’t help but feel hopeless and disheartened when I watch gays and lesbians from other countries embrace their rights. Gays and Lesbians should not be unprotected in their relationships just because they are gay and lesbian, but that is what is happening in Australia.

I dream of the day that Australian gays and lesbians can formalize their relationships and be afforded the same civil rights that are afforded heterosexuals in relationships and marriage. This cannot happen when the leadership of the country does appear so homophobic that he and his government move to quash same-sex civil unions in the ACT, and then in the same breath declare the move to not be homophobic. I think their actions are contradicting their statements.

Another local resident wrote to me and said:

I write to you as a productively, contributing resident of the ACT in response to the ACT Civil Unions Act and its recent overruling, or attempted overruling, by the Federal Government. As a tax paying and voting citizen of this country, I believe that the rights of a group of people in this country (including myself) are being abused by the involvement of the Federal Government in this case. I am a gay man and I have lived in a continuing same-sex relationship with my partner for over 25 years. This is a greater length of time than many heterosexual marriages and indeed a period of time of which we are both proud. I find it totally abhorrent that the government in this so-called democratic country can interfere in my personal life in this manner by not permitting my partner and I (if we choose) to have our relationship formally recognised in the ACT under the Civil Unions Act.

I have received a number of emails from public servants in the ACT who have written about how much hard work they have put into supporting this government and how much they feel abandoned by this government.

I have received emails from people who recall the comments of the Prime Minister that he would govern for all Australians, and they point to this legislation as an example of the Howard government not governing for all Australians. I received an email from a 58-year-old man in Canberra, who wrote:

My partner and I still have our military service medals. Sometimes I wonder if we should send them back, since our contribution to the military service of this country is apparently not considered sufficiently worthy to accord us the entitlements that most people take for granted.

I received another email, which said:

I cannot express enough how much John Howard and Phillip Ruddock fall below my expectations as leaders of this country. They are failing to represent the diversity of the Australian public and rather than leading the way forward appear to be overly eager to encourage a backwards movement in human rights and equality for all.

My relationship has the full support of my family and friends. They will all be attending the Civil Union between my partner and I and hopefully sharing the joys of our relationship as it unfolds over the years. I can only hope that the Australian federal Government will one day catch up to the contemporary Australia that we live in and realise that they are the ones who are being left in the closet.

It is these issues of human relationships, flesh and blood life, respect and acceptance that are important for the Greens.

Some other contributions on this debate that I have really enjoyed reading have been in the letters pages of the newspapers. One of them read that perhaps the ACT’s proposed civil unions would not have attracted the ire of the federal government if instead they had been called ‘individual relationship agreements’. Another one read:

Student unions, industrial unions, and now gay unions. I’d be worried if you play rugby.

But there are other issues at stake here, and there is also a democratic issue at stake here. The Attorney-General’s action in disallowing the ACT’s Civil Unions Act has been described by eminent constitutional law expert Professor George Williams of the University of New South Wales as heavy-handed and premature. He said:

It’s very unusual—it’s a major legal and political step to take to override what local people would say is their sovereign democratic legislature.

The Greens could not agree more. The people of the ACT have voted for a government that made civil unions part of their election platform for two elections. Support for the legislation in the ACT is not in question. The abuse of the democratic rights of the citizens of the ACT is obvious—but the minister is shameless in taking them away.

I urge senators to support this disallowance motion, because it supports the rights of the people of the ACT and of all Australians—all those Australians that the Prime Minister said he was going to govern for—to have their loving and caring relationships recognised. It is an important choice for senators to be making here in this parliament. Senators have the opportunity to say what their view is on the very important issue of love. Do they want to stand up and acknowledge the beauty of love and what it brings to our society and to our community? Or do they want to be a part of the politics of hate that says that only some people’s love should be recognised? Do they want to be part of the politics of hate that says that only some couples should be recognised in the community and that other couples should not have access to the same rights and entitlements, and that they should not be able to have their relationships recognised before their friends and their families?

This is an important issue that has an impact on all members of our community. The people who have been lobbying and campaigning on this issue are from a diverse range of backgrounds. They are people who care about families. They are people who want families to be kept together. They want children to have two parents that are legally recognised as their parents. They want those children to be protected and they want their families to be recognised. This proposal is saying that only some families and only some love should be recognised. The Greens reject that wholeheartedly. We want to see all parliamentarians joining with us to say: love is important and the recognition by the community of love and of the relationships that it holds together is also important. That is what the ACT are trying to do through their Civil Unions Act. We in this parliament should not be trying to stop them from recognising the validity of loving relationships. (Time expired)

10:08 am

Photo of Nick MinchinNick Minchin (SA, Liberal Party, Minister for Finance and Administration) Share this | | Hansard source

On behalf of the government, I advise that the government will be opposing the motion to disallow the instrument made by the Governor-General in relation to the ACTU Civil Unions Act 2006. I would like to outline the reasons why. Of course, the starting point is that, under the Australian Constitution, the Commonwealth parliament has an unambiguous responsibility for legislation in this country on matters pertaining to marriage. That is clear in section 51, placitum (xxi), of the Constitution—

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

On a point of order: Senator Minchin said it was the ‘ACTU’ Civil Unions Act. I think he meant the ‘ACT’. I just want to be clear that he knows which unions he is talking about here.

Photo of Grant ChapmanGrant Chapman (SA, Liberal Party) Share this | | Hansard source

I am sure that that was simply a slip of the tongue from the Leader of the Government in the Senate. There is no point of order.

Photo of Nick MinchinNick Minchin (SA, Liberal Party, Minister for Finance and Administration) Share this | | Hansard source

I thought I said ‘ACT’, but, if someone heard me say ‘ACTU’, let me make it clear that I am talking about the Australian Capital Territory, not the Australian Council of Trade Unions. As I was saying, the Constitution gives an unambiguous authority to the Commonwealth parliament in relation to matters pertaining to marriage and, of course, the Constitution, in section 122, also gives a very clear authority to the Commonwealth in relation to the territories. The territories are in a different legal position to the states.

Regarding the power granted to the Commonwealth in relation to marriage, the Commonwealth Marriage Act sets out the position in relation to marriage and, as is well known, that Marriage Act now makes it clear that marriage is the union of a man and a woman to the exclusion of all others. That definition, which I think quite properly reflects both the traditional and modern understanding and acceptance of marriage—one of our most important civil institutions—was passed by this parliament with bipartisan support in 2004. I acknowledge the role of Senator Guy Barnett and others, on both sides, in that important legislative clarification of what had always been understood and is clearly understood to be the nature of marriage.

Turning to the ACT’s Civil Unions Act, the difficulty from our point of view is that, whatever might be said, it is clear that the intent and purpose of that act is to equate a civil union with a marriage. In that sense we regarded it as repugnant. We have had a dialogue with the ACT over this matter which spelled out our objections to the proposed legislation in a series of correspondence and, at the end of the day, we were not satisfied with the response of the ACT. The ACT government made certain amendments to its legislation in response to the objections raised by the Attorney-General, Mr Ruddock, but, regrettably, the changes did not alter the substance of the ACT law, which effectively makes it clear that same-sex civil unions are to be equated with marriage.

Our government—and, indeed, I acknowledge the role of the opposition in this—is about preserving the proper and well-understood definition of marriage. That is why that amendment was bipartisan. Frankly, I am surprised that the opposition is supporting this motion of disallowance. Earlier this year, the Commonwealth was in a dialogue on points of detail to try to resolve the differences. We have gone out of our way to try to help the ACT to construct an act which would not contravene the clear position in relation to marriage—for which we have authority under the Constitution and which the Marriage Act now makes clear. The guts of the problem in the ACT law is in section 5(2), which, despite our ongoing dialogue with the ACT on this, says:

A civil union is different to a marriage but is to be treated for all purposes under territory law in the same way as a marriage.

The ACT have really adopted quite a hollow position. They are clearly setting out a legislative position determined to ensure that, for all intents and purposes, a civil union under their new law is to be treated as a marriage. In our clear view, what the ACT had done in other respects in the bill did not alter the substance of its legislation, which effectively amounts to a contravention of the definition of marriage in the Commonwealth Marriage Act, for which we have sole authority.

The ACT really acted quite unilaterally in ending the dialogue and proceeding to enact this legislation with that most particularly offensive clause in it. We are somewhat doubtful about the motivations of the ACT government in the way in which it has proceeded and the way in which, at the end of the day, it has forgone the opportunity to find a resolution to this matter which would ensure that, from the Commonwealth government’s point of view, we could not have an objection to this legislation. We note that this legislation was put through the ACT assembly coincidental with an absolutely horrendous budget from the local territory government, which leads one to feel some cynicism about the real motivation of the ACT government. It looks like it is setting up an alternative issue to distract attention away from the horror budget which it has just been responsible for.

In the event, the cabinet, having considered the ACT’s position on this and its refusal to meet our objections in full, decided that as a government we would move to advise the Governor-General to disallow the ACT Civil Unions Act 2006. That instrument was enacted on advice by the Governor-General on Tuesday, and it had the effect of invalidating the ACT act from midnight of that night. We regret that it has got to this, but we think that the ACT government is engaged in a political circus in relation to this issue. I think that is quite unfair, especially given that they could have found a solution which might have met some of the desirable objectives that Senator Nettle points out without resulting in the situation where we have no alternative but to oppose this disallowance motion.

Mr Stanhope, the Chief Minister, refers to having a mandate on this matter. If he has a mandate, he has had a year and a half to meet our concerns. He has failed to do that, and he has brought in this act right at the time of his very unpopular and irresponsible 2006 budget. Mr Stanhope protests that the disallowing instrument enacted by the Governor-General was a shock to him. We have consistently said to him that we would indeed reserve our right to act on this matter if the ACT act, once enacted, continued to contravene, in our view, the clearly stated position in relation to marriage as defined by the Commonwealth Marriage Act 1961.

We have real doubts about Mr Stanhope’s motivations in this matter, when clearly we were constructively engaged in a dialogue with the ACT government in order to seek to find a way in which their legislation, which sought to recognise same-sex unions, could do so in a way that did not offend our general understanding—and, indeed, the Commonwealth act’s—in relation to marriage. We believe he and his government have been given every opportunity to fix his act in a way that would not be offensive.

We find the remarks being made now by the ACT government quite offensive. We are being accused of being homophobic and all the rest of it—the normal retorts of those who do not like what the Commonwealth has done in protecting the institution of marriage. We reject that accusation out of hand, but we are very firm in our position that we will not stand by idly and allow the territory government, for which we have ultimate responsibility, to so flagrantly contravene the definition of marriage as set out in the Commonwealth Marriage Act 1961, for which we also have ultimate responsibility. The ACT cannot play games on this.

I refer you to the definition that is in the ACT act—that for all intents and purposes under territory law a civil union is to be treated in the same way as a marriage. It is quite clear that it is almost deliberately designed to provoke the response that we have made. But we have made it against the background of very deliberate and considered efforts to try to find a middle ground with the ACT. We are extremely disappointed that they have sought to confront us in this way. For those reasons, we believe that, in taking the position we have, we reflect the mainstream values of this country and a mainstream view of marriage. We are not opposed to same-sex unions as such, but to seek to equate a same-sex union with marriage is objectionable, and we will not accept that.

My good friend and colleague Senator Gary Humphries, a territory senator, has publicly expressed his concerns about our government’s position. His position is an honourable one. It is that the ACT is an autonomous parliament. I am probably one of the real champions of federalism in our government. I have a very high regard for our federation and for the role of the states in that federation. But the constitutional fact is that the territories are not states and that the territories are subject to the Commonwealth’s authority, as set out clearly in section 122 of the Constitution. Our government has exercised its authority in relation to the territories in other respects.

We seek to grant a degree of autonomy to the territories but, at the end of the day, to the extent that territories, which are ultimately answerable to this Commonwealth, contravene positions of the Commonwealth then we have the obvious authority—and indeed in this case, in our strong view, the responsibility—to act. We use that authority very sparingly, and only after deep consideration of the matter, because we respect the prerogative of the states and obviously the territories. But, where a territory has sought to act in such an obvious way to contravene the definition of marriage as passed by this parliament—the common and general understanding of marriage as a union between a man and a woman to the exclusion of all others—then we are left with no alternative but to advise the Governor-General to disallow that act.

Obviously, by virtue of the nature of that instrument, it is one that is open to the Senate to move to disallow. The government’s very clear position is that we will not be supporting that motion for disallowance, for the reasons I have set out. We think that, while we should on a case-by-case basis seek to ensure the elimination of discrimination against same-sex couples, when it comes to marriage, that is and has always been—and I hope will always be—an institution that is preserved for the union of a man and a woman to the exclusion of all others. That is the government’s clear position, and one which we believe is strongly supported by the Australian community. I conclude my remarks by noting and reinforcing the government’s very clear position: we will be opposing this motion.

10:22 am

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

The Howard government has this week taken a step that no government before it has taken. For the first time in the ACT’s history, a federal government has used section 35 of the Australian Capital Territory (Self-Government) Act to go directly to the Governor-General to disallow an act passed by the ACT Legislative Assembly. On Tuesday this week that order was made by the Governor-General, disallowing the ACT Civil Unions Act 2006. The order of the Governor-General is itself disallowable and Labor, along with the minor parties, is moving to stop the Howard government from interfering in the ACT legislation on this matter.

Labor are moving to disallow this instrument because we do not believe that Mr Howard should override the ACT laws on this matter. Let me explain why. Labor acknowledge that it is this parliament—only the Commonwealth parliament—that can make laws about marriage. In fact, in 2004 we did pass a law confirming that marriage was between a man and woman. Labor supported that view then and are committed to maintaining marriage as a separate and special institution between a man and a woman. The ACT Civil Unions Act does not deal with marriage. It does not compromise, contradict or impinge on that principle. It does not and could not create same-sex marriages. In fact, in section 5 of the act, it says expressly that a civil union ‘is different to a marriage’.

Given our view that this law does not deal with marriage, Labor support the states and territories recognising same-sex relationships in the way they see fit for the purposes of the application of laws in their state or territory. The creation of civil unions for same-sex couples, which this law did, is clearly a matter for the territory. The Howard government has ignored these facts. Instead of focusing on the second part of the same provision I referred to above, which says that a civil union ‘is to be treated for all purposes under territory law in the same way as a marriage’, the government misconstrues this as saying that this means that civil unions are equal to marriage. That is simply not true. To say that something is to be treated under a law in the same way—and this government understands this—is a shorthand way to ensure nondiscrimination. It does not imply sameness. That is all the ACT act is really about—nondiscrimination.

The fact is that, like almost all states and territories, de facto couples, same-sex or heterosexual, are already treated the same way under ACT law. Those reforms were passed some time ago. The key practical effect of a civil union system is that it would stand as evidence in itself of a relationship. It is a way to have a relationship recognised and to declare ongoing commitment. In contrast, de factos have to prove that they are in a domestic partnership whenever a legal issue arises. The value of civil unions or a registration system is not in mimicking marriage but in making it easier for couples to prove they are in a relationship. Otherwise, these couples have to prove their relationship every time they want a stamp duty exemption or every time they have an inheritance, property or medical consent issue to confront.

If the clear words that a civil union is ‘different to a marriage’ are not enough to convince the government then they should look more closely at the detail. Civil unions under the ACT act have some key differences to marriage. For example, it is easier to enter into a civil union than to get married. It simply involves giving five days notice and making a declaration before a celebrant and one other witness. Compare this to marriage, which requires one month’s notice, at least two witnesses, an expression of prescribed words by both parties and a celebrant in a wedding ceremony. Another crucial difference is that, unlike marriage, civil unions have no religious aspect and cannot be conducted by clergy.

Even clearer differences between marriage and civil unions emerge when you consider how they are terminated. Unlike marriage, which can only be dissolved through a court order, civil unions can be terminated by giving 12 months notice to the ACT Registrar-General. This applies even if the civil union is terminated by only one of the parties. Further still, a civil union is automatically terminated if one of the parties subsequently marries.

It is also important to understand that the ACT Civil Unions Act has no effect outside the ACT. Unlike marriage, which is a national institution recognised in all states and territories, civil unions will have an effect only under ACT law. There is no way this action of the ACT can force other jurisdictions to take note of their form of relationship recognition, just like Tasmanians cannot with theirs. We as the federal parliament will need to deal with which relationships we recognise for the purposes of Commonwealth law, but that is an issue for us. I will speak about that later.

Because this issue affects only the territory, it should be left to territorians to decide. If self-government in the ACT is to have any meaning at all, it must mean that the ACT legislature can determine policy of this sort. It has no bearing on what happens outside the ACT and it has no bearing on the ACT’s special role as the seat of the Commonwealth government. It will only affect the way certain relationships are treated within the Canberra community and under territory law. It has no further effect than that.

The Howard government is intervening here simply because it can. No-one is asking the Prime Minister to agree with civil unions or with the details of the ACT legislation. He is simply asked to leave the issue to Canberrans and their democratically elected parliament. After 10 long years in government, the Prime Minister is too out of touch and out of control to accept that the ACT parliament is allowed to disagree with him. The residents of the ACT and, for that matter, the Northern Territory should be very alarmed by the government’s actions. It has exposed both territories to the limits of self-government without the constitutional protections enjoyed by the states. This episode has shown that the Howard government will pay no respect to the principle of self-government when the territory parliaments do something that the Prime Minister just does not like.

Quite apart from the territory issue, it is clear that our laws should be able to appropriately recognise and acknowledge same-sex relationships. In fact, in almost all the states and territories they already do. All have made or are considering laws to ensure that same-sex relationships are treated the same as heterosexual ones for the purposes of property arrangements, wills, medical consent and many other financial, medical and personal matters. Tasmania has gone a step further, providing a system where same-sex couples can register their relationship. Most recently the ACT took a different approach by introducing civil unions—registered relationships created through a ceremony. This is the law we are debating today.

The jurisdiction that sticks out like a sore thumb is the Commonwealth. Federal law still actively discriminates against gay and lesbian couples in areas like superannuation, health and welfare benefits, insurance, veterans affairs, family law and taxation. Labor has long highlighted this injustice and will continue to argue for the removal of all of these forms of discrimination so that same-sex de facto couples and heterosexual de facto couples are treated the same when it comes to laws and benefits.

Recently, federal Labor have also been undertaking consultation on whether we need a national system for recognising same-sex couples, and what form it should take. Of course, the steps states and territories take down the path of registration or civil union will be a key factor in any approach we adopt in the future, but one thing we cannot tolerate is a federal government that have ignored these practical injustices in their own arena telling the ACT that its measures will be overridden. We do not support the Howard government’s action to override territory law on this matter and will vote to disallow the Governor-General’s instrument. With those words, I will conclude.

10:32 am

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

The Greens have brought forward this disallowance motion simply because it is discriminatory. It discriminates against 500,000 people of the ACT and it discriminates against same-sex couples across the country. It effectively legislates for discrimination because of the attitude of the Prime Minister and the Attorney-General. I would like to move that the debate be adjourned until 17 August because I believe this matter can be fixed properly by such an adjournment. Let me say why. I spoke with Chief Minister Stanhope last night. He informed me that the section 5 problem—

Photo of Michael ForshawMichael Forshaw (NSW, Australian Labor Party) Share this | | Hansard source

Order! Senator Brown, as you understand, I have just assumed the chair and I have just caught up with the progress of the debate in here. I understand that you have already spoken to the motion. It is not open for you to move the adjournment of the matter.

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

I seek leave of the Senate to move that the debate be adjourned.

Leave not granted.

I hope the government knows what it is doing by refusing such leave. I got called out of turn, let me explain here, Mr Acting Deputy President. You have just assumed the chair—

The Acting Deputy President:

Senator Brown, you were not called out of turn. You rose to your feet and sought the call. I may have a running sheet in front of me but you were the one who rose to your feet and sought the call. I did not see the next speaker in the chamber at the time you rose.

Photo of Bob BrownBob Brown (Tasmania, Australian Greens) Share this | | Hansard source

Okay. One of my colleagues will move that the debate be adjourned. Let me explain why they will do that, because of this farce of procedure by the government. I note Senator Scullion’s refusal of leave to do that, which would have been sensible at this stage. I will explain why we will be moving to adjourn this debate. I spoke with Chief Minister Stanhope last night because it appeared to me that the federal government override—and it is a government override; it is not a parliamentary override that we are talking about—was high-handed and had come without the possibility of looking at what alternatives the ACT legislature could take.

Mr Stanhope made it clear to me that the ACT government would remove section 5 on the next sitting day, which is in August. Otherwise, as he clearly explained—and it is commonsense—the ACT goes back to having nothing and having to start again. My colleague will move for the adjournment of this debate so that it can be resumed on 17 August, which will give the ACT legislature time to sensibly continue the debate with the federal government so that the problem Senator Minchin has with it can be fixed by negotiation so that the ACT law stands, with the Attorney-General having explained just what it is that needs to be altered. Is it not sensible that, in an important matter like this, a process of negotiation takes place over the next eight weeks so that there is a reasoned outcome? We do not have to use the sledgehammer on the ACT. It is a sign of statesmanship from the Prime Minister if we hold this over for eight weeks and have the ACT and the Commonwealth come to an accommodation. We are dealing with real people, real relationships and real legislation.

I say to the government: accept a procedural change here which allows commonsense to come back into this stand-off where the bigger party wants to sledgehammer the smaller party against the interests of the ACT voters who, after all, voted for the legislation which the Stanhope government has since passed. That is sensible. I ask the other members of the chamber to consider an adjournment of this debate until 17 August—the ACT Assembly sits on the 15th—which can see a proper negotiated outcome in that time. To not do so would be a failure of proper process and a failure of the federal government to reasonably come to an accommodation with the ACT. That is what we should be having here.

Having said that, let me ask this: what is it that is so offensive to the Prime Minister or to Attorney-General Philip Ruddock about civil unions of same-sex couples? What is it that offends these gentlemen so much that they have used the executive power they have, not the parliament, which is the proper place? The parliament is considering this because of Senator Nettle’s motion, but they have used their executive power to override the populace of the ACT on this matter. Let them spell it out. And let me say here, with the greatest forethought, I recognise and honour John and Janette Howard’s relationship. I recognise and honour Philip and Heather Ruddock’s relationship. What is it about these gentlemen that they cannot recognise and honour my relationship with my partner, Paul? What is it about these gentlemen that they cannot recognise thousands of Australia’s loving relationships in a society where love and caring for each other ought to be at a premium in this troubled world of ours?

It is a mixture, I think, of ancient dogma, which we should have long gone past, and a tendency to discrimination which should have been left in the middle of the last century at the latest. I say to the Prime Minister and the Attorney-General that they ought to catch up and recognise that in giving and honouring same-sex couples without discriminating against their relationship and their ability to publicly express that relationship they make our society more secure. They increase the aliquot of happiness in life where everybody has the right to pursue happiness and they raise the dignity of a society where indifference, discrimination and hate of other people on the basis of lifestyle should have no place. It is my belief and the policy of the Greens that there should be no discrimination on the basis of sexual preference under the law. If Canada, Catholic Belgium and Catholic Spain can recognise marriage for committed couples, whoever they might be, why cannot Australia?

This will pass and all these things will be changed. That is the tide of the evolution of human society. It may be that this government is stuck in the middle of the last century—in fact, it is—but to override the ACT legislature where the government was elected on the basis of this very legislation is deplorable. The people gave the government of the ACT a mandate for this legislation. This government has no mandate and did not go to an election on the basis of this legislation.

The ACT is a territory. Under the Constitution the Australian parliament—let me remind the Prime Minister of this—not the executive, is charged with the responsibility for the good maintenance of the territories. The Howard government abused its executive power to move against the ACT legislature. The Howard government should have brought legislation into this place. It did not. It used an executive instrument in the night to override the democratic right of the people of the Australian Capital Territory to pass their law on civil unions. It did not breach any Commonwealth law but it was a law that the people of the ACT had voted for. Whatever else, one would have thought that Prime Minister Howard would have stood by democratic principle and the right of Australians to vote and have that vote respected.

We are dealing here with a line of thinking which should long ago have passed. I had a delegation of Exclusive Brethren elders come to see me in my rooms on Monday a week ago, I think it was. In the course of a discussion there about a motion which I have for a Senate inquiry into the Exclusive Brethren, it was stated clearly that I would be subject to eternal damnation and the flames of hell for supporting same-sex marriages. I told them about my partnership and it was very clear that that is their prescription for my future.

I woke up this morning and heard Abu Bakar Bashir—this man with criminal connections who has just come out of jail for being involved in the mass death of people, including Australians, in Bali—saying that the Prime Minister of Australia faces the same outcome. What an appalling creature Abu Bakar Bashir is. Surely all of us discount this threat of hellfire, damnation and lakes of fire by some religious bigot wanting to declaim against a person on the basis that they are leader of the Australian nation. But one cannot help but think that in this disavowal of the right of loving people of the same sex to have that relationship registered there is an old chord going back to pillars of salt, hellfire and damnation. Surely we are past that in the 21st century, and surely we should move on to greater enlightenment than that in our legislative processes.

Senator Minchin, who a number of times confused the ACT with the ACTU—and, I think, just which unions he was talking about—said that Mr Ruddock was not satisfied with changes made by the ACT and the ‘particularly offensive clause’ in section 5(2). That clause establishes the core elements of a civil union, consistent with the Human Rights Act 2004—that any two people may enter into a civil union, regardless of their sex. It states:

A civil union ... is to be treated for all purposes under territory law in the same way as a marriage.

The government finds that particularly offensive. I find it particularly offensive that the government finds that particularly offensive.

Senator Minchin said that what the ACT did alter did not alter the substance of the bill. What does that mean? That the bill should be gutted? He also said that cabinet met and ‘the ACT refused to meet our objections in full’. As I understand it, what really happened here was that Attorney-General Corbell and the ACT government sought to know exactly what it was that the executive of the Howard government wanted changed—what the exact changes would be which would allow the ACT legislation to be acceptable. There is still no answer to that. Do you know why there is no answer to that, Mr Acting Deputy President? It is because the executive of this government does not want to reveal its bigotry—its 21st century wowserism—by being explicit in the expression of its discrimination against same-sex couples. That is the problem.

We have not heard from the Prime Minister what he would accept. He is clear in saying, ‘Same-sex couples shouldn’t be allowed to marry.’ The ACT legislation does not allow same-sex couples to marry. So what is wrong with the Civil Unions Act that the ACT legislation has passed, Prime Minister Howard or Attorney-General Ruddock? They will not say because it would reveal the bigotry of the argument that they have silently used, which is written there between the lines, which is that they abhor the idea of same-sex couples being given parity—loving couples, and the children within so many of these relationships, being given parity.

To repeat what I said last week, it is interesting that the Prime Minister went to the White House to consult George Bush and came home convinced that same-sex unions are dangerous and nuclear reactors are safe. It is muddled; it is incomprehensible—and the Prime Minister will not spell out why. Since then, of course, George Bush has been to the congress to try and do in the United States effectively what the Prime Minister is doing here—ban same-sex marriages—and has been rebuffed. One of the reasons for that is that the people of the United States and their representatives have moved on. A sea change has removed discrimination in their minds and in our minds—we were all brought up to it—like that sea change that happened 40 or 50 years ago in Alabama and Little Rock, Arkansas, against people who had a different skin colour and like the sea change that happened half a century before that against women. For goodness sake, how could you have women having the vote and have the economy survive? The bigots said that, often quoting St Paul, on their way to the legislature just 100 years ago. We are in that same situation now. The one thing we can know about this with confidence is that all this charade, this discrimination, this executive abuse of power to override the ACT will be changed. Even the Labor Party—(Time expired)

10:52 am

Photo of Andrew BartlettAndrew Bartlett (Queensland, Australian Democrats) Share this | | Hansard source

I suppose I have an interest in this debate. Like many people in this chamber, I am married. Amazingly enough, I do not feel like my marriage is being threatened or diminished in any way by the ACT enabling people who have same-sex partners to register their relationship under the Civil Unions Act. I ask any member of this chamber who also happens to be married: can they seriously say that their marriage will be devalued one single iota by enabling people whose partner happens to be of the same gender to have their relationship recognised under civil law? There is absolutely no way that anybody, I believe, can sensibly say that their own relationship is devalued because of what some other couple wants to do with regard to recognising their relationship. If they do believe that then I suggest there is something wrong with their own relationship.

What is this all about? I suggest that, first and foremost, from the Prime Minister’s point of view in particular, it is about political point scoring opportunities once again. I believe there is no doubt that the Prime Minister is not genuine on this issue. I do not make categorical statements like that unthinkingly. This Prime Minister has repeatedly said in recent times—and only in the last year or so, I might say; it is an interesting shift in his rhetoric—that he opposes discrimination against people who have same-sex relationships. He specifically said at the end of last year that he was in favour of removing any property discrimination and other discrimination against people who have same-sex relationships whilst nonetheless maintaining his opposition to gay marriage or gay adoption. But what has he done about it? He has done nothing. He has made the nice-sounding statement saying, ‘We are against discrimination on the grounds of property et cetera,’ but he has done nothing.

I wrote a letter to him after he made that statement, in January—as I was acting leader at the time, while my leader, Senator Allison, was on leave—congratulating him on his statements that he was in favour of removing property discrimination and other discrimination against people in same-sex relationships. He is so genuine about it that he has never even acknowledged the letter, let alone responded meaningfully. That is how shallow this Prime Minister’s commitment is to that issue.

I recall that, when I was leader of the Democrats, the party had to hold up the superannuation choice legislation for years before the government would agree to, very begrudgingly, allow some degree of equality on the basis of interdependency for people with regard to some of their superannuation entitlements. It was a significant reform. Seeing that Senator Coonan is in the chamber, I acknowledge her contribution in enabling that to happen. That was a significant achievement of the Democrats which, I might say in passing, is rarely acknowledged by many of those who continually call for the removal of discrimination against people in same-sex relationships. They seem quite happy to ignore the Democrats’ achievements, persistence and actual gains in this area. Of course, the Democrats have had legislation before this chamber since 1995 that would have the effect of removing property discrimination and other discrimination against people on the basis of their sexuality, their gender status or the gender of their exclusive partner.

We have had no indications of genuine support from the government—or, until recent times, from the Labor Party, I might say—with regard to that area. It is nice to have the Prime Minister making this statement, but forgive me if I believe that he does not believe it. If he believed it he would act on it. He has made the statement repeatedly now for many months. He has not acted on it. I acknowledge the efforts in recent times of Mr Entsch, the member for Leichhardt, in seeking to address this issue, but there has been no movement from the government.

We have seen continual inaction. There has been the occasional nice-sounding statement saying that the government believe that there should be a removal of discrimination and that we might need to have a look to see what is around. They know what discrimination there is. Democrats legislation on this issue has been before this place since 1995. A comprehensive Senate inquiry that tabled its report back in 1997 detailed all the discrimination that exists. We have had small gains in removing some of that discrimination in the area of superannuation and in some aspects of the Defence Force, but it is not complete even in those areas. We know where discrimination exists. There is now a human rights commission inquiry into it as well, which I also welcome, which will provide more detail about it and reaffirm the need to act. But the excuses about why we cannot move are continual.

We had excuse after excuse with regard to the superannuation legislation about why they could not move in that area. It was only because we refused to proceed on superannuation choice for years that they eventually agreed. The government were so determined not to move even in a small area of removing discrimination that they held up a major policy reform with regard to superannuation choice. Regardless of whether or not people agree with super choice, it was a major policy reform of the government that they were strongly pushing. They were willing to have that sit and not move for years purely because they would not make any concession on removing discrimination. It was only because of the Democrats’ insistence on also not moving that we finally did get some gains there.

The evidence is quite clear that the Prime Minister is not genuine. This debate we are having today is another example. Whilst we have had years and years of dragging the chain, of continual excuses for inaction, as soon as the ACT moved there was instantaneous action from this government to jump in and try to overturn the ACT Legislative Assembly’s legislation. There was no pausing to look at reasons why it might not be a good idea. There were no delays or consultation. It was straight in, running the gay marriage fear campaign, running the political wedge and pushing the political point scoring buttons. They immediately initiated this divisive, destructive and personally hurtful and harmful debate to many Australians. The Prime Minister is not genuine or sincere. He is quite willing to deliberately cause not only anguish and hurt but actual harm to many Australians purely for political point scoring opportunities. His complete lack of interest in even acknowledging correspondence from people who offer to work with him in removing discrimination in areas that he says that he supports shows how insincere he is.

Obviously points have been raised by Senator Brown and others about how it is inappropriate to overturn a decision of the territory legislative assembly and the territory legislative assembly should be able to make their own laws. I understand that argument, but it is not one that I am prepared to use because, if you going to take that approach, you have to be 100 per cent consistent on it. You cannot only use that argument when you like the laws that you are trying to defend; you have to use that argument when it applies to laws you do not like. Whilst I like this law in the ACT—I am quite open about that—the Democrats in the past have introduced legislation, which also had Senator Brown’s and the Labor Party’s name on it, seeking to overturn the mandatory sentencing laws in the Northern Territory. They were laws that I very strongly disliked—laws that I am glad are no longer there, as I understand it. Personally, if I believe it is an important enough case—and I do not suggest that the federal parliament should willy-nilly overturn any law that it is vaguely dissatisfied with—and the power is there, whether it is the law of a territory or a state, I have to say that, to be consistent, I would be willing to overturn it.

So I am not using that argument in this case; I am using the argument that the law in the ACT should be upheld because it is a good law. It is obviously also a law that the people of the ACT supported. I think the mandate theory of politics is grossly overused. But, inasmuch as it can be used, the ACT Labor Party did run with this as a policy. It was not only voted in but voted in in its own right. That was not something that I was overly happy about, in broader terms, but nonetheless there was a mandate, as far as it goes. But I am not willing to use that argument because I do not think you can apply it, unless you are going to apply it consistently and most tellingly to those areas or laws that you do not support.

Senator Nettle spoke about the power of love and the importance of equal recognition of love. It was quite touching really; it was almost poetic. Obviously love has a lot to do with marriage and the recognition of relationships. I should say that not all marriages are about love; some marriages are not really about love at all. I think there is often more to it than love but, ideally, particularly in our society and with the values we hold in Australia, we believe that any exclusive relationship is far preferable if it is based around love. We could all now have a debate about what love actually is, if you particularly want this debate to go for another 10 weeks and to have all our different definitions of love.

Clearly, love is an important aspect of relationships, and it is an important part of why actions such as this federal government is taking are so harmful. Categorically and indisputably this action does say that people whose love is towards someone of the same gender are of less value or less worth than people whose love is with somebody of the opposite gender. That is not only discriminatory but immensely harmful for some people. I ask people to consider that this message coming from the leaders of the country, as well as, of course, leaders of churches—and I will get on to some of them in a moment—that is believed to be so important that it is reflected in decisions of the national parliament and the law of the land says that their love does not merit the same recognition as somebody else’s.

I ask people to think about how that can affect individual people, particularly if they are people who, because of the social discrimination and social antagonism towards gay and lesbian people, are struggling—and some are, as we all know—with their sexuality. If people who are vulnerable because they are struggling with their sexuality are having a message reinforced in law that their intrinsic emotional beliefs and their intrinsic emotional bond with another person is less valuable, that is immensely harmful. I am not overstating the case when I say that that is one of the key reasons why there is a higher incidence of suicide, self-harm, depression and related issues among people who are gay, lesbian or bisexual. They are continually bombarded with messages saying that their emotions, their intrinsic way of relating to people, is less valuable or somehow disordered. It is immensely harmful. That is why I oppose so strongly actions like this. It is also why I am doubly offended and angry because I know, as I said at the start, that the Prime Minister is not genuine in his statements in this area.

This also gives extra coverage, extra legs, to people such as Piers Ackerman, who many of us would have seen on the Insiders program on the weekend. In relating to and commenting on this issue that we are debating now, he said that you cannot call a relationship between a man and a man, a woman and a woman, or a man and his dog, his cat or his goat a marriage. That is the sort of contemptible depth that some senior political commentators in this country have been willing to sink. A major media commentator is willing to use the opportunity of debates like this to run such disgusting and destructive messages to millions of people throughout the nation. Thankfully, there are not that many people who, like Piers Ackerman, are willing to be so offensive and so deliberately abusive towards their fellow Australians. But there are others.

Also mentioned on that program was the spokesperson for the Australian Family Association, who reportedly stated that removing barriers to recognition of gay and lesbian relationships will mean that people will be more likely to start having sex with animals. That is the sort of contemptible statement that gets made and is given reinforcement. I am not suggesting that government members support that statement, but I am saying that by cynically putting forward debates like these they are giving succour to those sorts of statements. Most of us can dismiss them as the rantings of people who are being deliberately antagonistic, but for people who are vulnerable and who are already feeling under attack they have extra bite.

I would also like to emphasise that, despite all the talk about love—and that is important—marriage is not just an expression of love. Marriage, particularly in the legislative context in which we are debating it here, is actually a legal contract. You can take all the love out of it entirely and just say it is a legal contract, and so is the civil recognition of same-sex relationships. It is purely a legal process. It is a legal process that, among other things and in some ways most significantly, much more effectively enables the legal recognition of property and other entitlements—the very thing that the Prime Minister has said he is in favour of removing discrimination against. The ACT has taken a move that makes it more likely that people in same-sex relationships will have the same access to property entitlements and all those other obligations that apply to people in de facto, opposite-sex relationships. This is an action that goes in the direction the Prime Minister has said he is in favour of, but he leaps in straightaway and seeks to overturn it.

I also want to say, because I believe it needs to be placed in the context of this debate, that there are statements not just by fringe nutters from the Australian Family Association—what a misnomer that is—but also by leaders of mainstream churches. I am not in the business of attacking the churches in general or the Pope in particular, because I believe that in general they perform a positive role in society. If people who are Catholics do not like what the Pope says then it is their choice whether they stay in the church. I am not into arguing about what the church does and does not do; people who are in the church can fight that battle. I am not in that church, so I do not debate that. However, one of the earliest statements by the new Pope was that ‘deep-seated homosexual tendencies’, to use his terminology, gravely obstruct a right way of relating with men and women. People who are Catholic can choose whether or not to believe that, but statements like these are not just made for Catholics to believe; they are made and specifically stated as being made for society as a whole to follow.

I say that because those things are used to reinforce debates like this, and if statements are made saying people in same-sex relationships cannot relate fully or properly to other men and women purely because of their sexual orientation, in the context of saying that marriage is a special thing that must apply only to men and women, then it sends very destructive, harmful and divisive messages to our society. So I and the Democrats very strongly support this motion and we very strongly support the ACT government’s legislation. I hope there is still some way through to get a resolution on this issue, not just because I support the legislation but—much more importantly, I believe—because we cannot continue to keep passing things in this place that reinforce messages that are so destructive to people. (Time expired)

11:12 am

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | | Hansard source

I am speaking in support of this disallowance motion, and I will be opposing any adjournment proposition that is advanced later in this discussion. It is important that we discuss this matter today because there is an opportunity here for us to at least draw the public’s attention to the enormous danger of governments seeking to improperly use wedge politics and sectarian hate politics when playing with human rights. This is a clear case where that has occurred. Since the federal government has not actually done the Australian Capital Territory government the courtesy of formally writing to it and explaining why the federal government has sought to unilaterally, by way of executive fiat, intervene and overturn the decisions of the Australian Capital Territory Legislative Assembly on the Civil Unions Act 2006, it is important that we heard from the leader of the government in the chamber today what the government’s reasons were.

To date, what have we got? We have got a few comments on the radio, designed to colour and to seek to attract a particular segment of the electorate. Of course, there is the explanatory statement that has been made by authority of the Attorney-General and the Minister for Local Government, Territories and Roads in regard to the instrument of disallowance, which is made up of six short paragraphs and which has now been published. This says that the government has acted because there was an ambiguity in the Australian Capital Territory legislation and that the Australian self-government act specifies that there are no conditions for which the Commonwealth government can intervene to override the Australian Capital Territory, and does not have to satisfy itself in any public way as to the reasons to do so but is able to act in such a way as to disallow any instrument of the Australian Capital Territory.

That is all spelt out in the explanatory memorandum. This instrument has the same effect as a repeal of the Civil Unions Act 2006, we are told. But there is no explanation as to why the government should have acted in such a way—none whatsoever. And what do we hear today? We hear from the Leader of the Government in the Senate that there are a number of reasons that the government has acted. All I can say in response to the claims he made today is that either the minister is very badly advised or there has been a deliberate strategy to seek to present information which is inconsistent with the facts—that is disingenuous or, at worst, deceptive. We were told that the Howard government has gone out of its way to help the Australian Capital Territory draw up a piece of legislation which the Commonwealth government would be happy with. We were told that the Constitution allows for the Parliament of Australia to pass laws that override those of the Australian Capital Territory. We were told that the Marriage Act is clearly a Commonwealth act.

Let me go through those claims. First of all, there is the claim about the Commonwealth government going out of its way to help the Australian Capital Territory. What do we have to that effect? A couple of letters were sent to the Chief Minister, who was also the ACT Attorney-General, and to Minister Corbell, the current responsible minister. I understand that a couple of letters were written, on 29 March and 4 May. There has been no explanation as to why the government has acted in this way since the decisions were taken this week. We have been given no formal advice. We can say that no-one is disputing that the Commonwealth has the power to make laws in regard to marriage; no-one is even claiming that that is an issue. And no-one is claiming that the Commonwealth does not have the power to override states and territories on these matters. In fact, as I read the Constitution, there are a great many issues on which Commonwealth law is supreme where it comes into conflict with a state law. No-one is arguing that is not the case. No-one anywhere has argued that proposition. In fact, it might be well argued that if, as it is claimed, the legislation of the Australian Capital Territory was inconsistent with the Marriage Act then a High Court decision would demonstrate that that was the case and it would automatically be ruled out. No-one is disputing that possibility either.

But when it comes to the claim that the government has acted in a manner that is trying to help the Australian Capital Territory, I dispute it strongly. I particularly dispute the claim made by the minister today that the government of the Australian Capital Territory has sought deliberately to run this legislation through under the cloak of a tough budget. That was the claim made here today. The truth of the matter is that the legislation was passed in the Australian Capital Territory on 11 May. It was the decision of the Commonwealth to intervene on budget day—on 6 June. So, in terms of the timing of the intervention, it was the actions of the Commonwealth, not the actions of the Australian Capital Territory, that are relevant. The minister, quite clearly, was being disingenuous when he put that case.

It is further put that no action has been taken by the Australian Capital Territory government to change its position in response to concerns expressed by the Commonwealth. It is said that some 18 months have passed since the election, and the Stanhope government has sought, as I said, to run the civil union legislation through the smokescreen of a tough budget. First of all, let us be clear: in terms of the electoral cycle, there was a clear statement presented in the election and a mandate was established. An extensive process of consultation was undertaken by the Australian Capital Territory. A proposition was clearly advanced and a number of public processes undertaken by the ACT Human Rights Office, the Good Process lobby group and the Australian Christian Lobby—processes which attracted 425 written submissions. I think it is a reasonable proposition that it takes a little while for legislation to go through a consultation process and be enacted by the legislative assembly of the Australian Capital Territory. That is within its powers to do, and it did so on 11 May. I seek leave to table two letters from Minister Corbell to Minister Ruddock, which cover these very issues, to demonstrate the points which I am making.

Leave granted.

The letters from Minister Corbell point out:

The Australian Capital Territory is a self-governing territory and the Australian Capital Territory Legislative Assembly is the democratically elected body with the power to make laws for the peace, order and good government of the territory. The Civil Unions Bill affects only Australian Capital Territory law and is entirely and appropriately a matter for the Australian Capital Territory Legislative Assembly to decide.

I understand from your comments in an interview on ABC radio earlier this year and from recent correspondence that you also agree that the power to make laws about civil unions belongs to states and territories while the Commonwealth has power to make laws about marriage. You further indicate in that interview that your government would be happy to leave the states and territories to decide whether or not the legislation for civil unions.

The Australian Capital Territory has introduced legislation that provides not only for a system for recording civil unions but also for the way in which they will be recognised and dealt with under Australian Capital Territory law. It does not affect the status of marriage and, in fact, subclause 9(2)(a)(ii) and subclause 12(1)(b) ensure that a civil union will always give way to marriage. As such, I believe that this is a matter for the Australian Capital Territory.

Notwithstanding all of that, Minister Corbell goes on to say, ‘We are prepared to amend the act further still to satisfy the concerns of the Howard government.’ He went on to say that various uses of the terms ‘marriage’, ‘spouse’ and ‘married’ appear in the legislation, which is aimed at ensuring that there is a non-discriminatory approach taken to basic human rights such as the right to own property. You would think a government such as this one, which is so committed to capitalist values, would ensure that those principles would be upheld in Australian law. On the contrary, we are seeing acts of discrimination being perpetrated in a bid for partisan political advantage in a very narrow range of electorates in this country.

We are not seeing any serious discussion of amendments, because the truth of the matter is that, in response to Commonwealth request, this legislation was amended 63 times by the government of the Australian Capital Territory. So, when the minister comes into this chamber and says that there has been no attempt to deal with the concerns being expressed, he is clearly wrong—just plain wrong.

Furthermore, legislation that has been carried by the legislative assembly in the territory is further open to amendment, and this has been indicated by the responsible ministers in the Stanhope government. If this government were genuine about seeking to reconcile these issues, it would have used the relevant clauses of the Australian Capital Territory (Self-Government) Act that define the Governor-General’s power to intervene at the request of the executive council to seek further amendments. There are other courses available to this government to seek those amendments. As I say, no formal request was made to do any of those things.

One is left with the conclusion that this government is disingenuous on this issue. This action has been taken for partisan political advantage, as it sees it, for ideological and base political motives. We are not facing a situation where there has been any human rights abuse. There is no claim being made that the government of the Australian Capital Territory has acted in a manner that would require interventions—and, believe me, I acknowledge the right of this parliament to intervene. I take a different view from many; I do not believe that, where state rights come into conflict with human rights, state rights should be upheld. I take the view that all citizens in this country should be treated equally and have equal rights no matter where they live in the Commonwealth.

There is no case whatsoever being made that the people of the Australian Capital Territory are not capable of electing a government that is capable of acting to ensure a non-discriminatory approach on these questions. No human rights abuse has been alleged. No corruption has been alleged. No abuse of constitutional process has been alleged. There has been no claim that would justify an intervention of this type.

I take the view that what we have here is purely and simply a political act, not a constitutional dispute about the Marriage Act, because that is not in question. The legislation that has been carried by the Australian Capital Territory makes it clear in at least three separate places that that is not in question. I am left with the conclusion that we are talking here about politics. It is politics, pure and simple. The real irony is that, if you look at the opinion polls on these questions, public opinion has moved substantially. This is not even about what the majority of Australians think, because the majority of Australians take the view that if people want to have a civil union of this type then so be it. Do not think that people get hot under the collar about it.

It is clear that in some strategically placed electorates there is a minority view that may well be decisive in a tight election. It strikes me that we are talking here not about constitutional questions but about base political stratagems by a government that is seeking to appeal to a very tiny minority opinion in a number of key electorates. It is not about giving people a fair go and it is not about ensuring the protection of human rights. On the contrary, it is about playing with human rights in a manner that is clearly aimed at discriminating against a minority of Australians.

If it is so wrong that people have equality of rights in terms of their property, would the government please explain to us why that is the case? Why is it the case in terms of superannuation, people’s ability to own or transfer the ownership of a house, social security benefits or any of the other basic rights we have as citizens that there should be one rule for some Australians and another rule for others? This is a clear case where the government has not sought to engage in a process to ensure that its concerns are addressed. There is a simple explanation for this: the government does not want to engage in such a process.

For this stratagem to work—and I think it is grossly misplaced in many respects—the government needs to have a confrontation. That has been demonstrated very clearly because Minister Corbell approached Minister Ruddock about these matters. In the letters I have tabled today this is quite clearly identified. He asked a direct question: ‘What action can we take to satisfy the Australian cabinet?’ The answer, of course, is: ‘Well, we have made no decisions about what action you could be taking. We don’t have an answer for you.’ Quite frankly, I do not think Minister Ruddock is such a bigoted person as to not have an answer to that question. I have no doubt that the man has quite a detailed understanding of what is required to satisfy the demands of the Commonwealth—he would if he were genuine. I think he probably would understand the needs. The reason he cannot answer the direct question from Minister Corbell is that it does not suit the political stratagems of the Prime Minister.

When Minister Minchin comes in here today and gives us his half-baked explanation for it, it is quite transparent that the government does not have a case. It does not have a legitimate, logical explanation for its high-handed intervention—

Photo of John WatsonJohn Watson (Tasmania, Liberal Party) Share this | | Hansard source

Order! Senator Carr, you made a reflection on a member of the other house, Mr Ruddock, when you called him a bigoted person. Could you withdraw that?

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | | Hansard source

On the contrary; I think I said that Mr Ruddock would know damn well what was required. What I am saying is that the Prime Minister has acted in such a way as to prevent Mr Ruddock from giving an answer to that straightforward question from Minister Corbell.

The Acting Deputy President:

So you deny the words where you referred to Mr Ruddock as a ‘bigoted person’?

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | | Hansard source

It is quite the contrary, as I think you will find if you check the Hansard.

The Acting Deputy President:

Okay, thank you.

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | | Hansard source

What I am arguing here is that there is a level of bigotry in this government—pure and simple. But Minister Ruddock is a much more sophisticated politician than that. He has answers to these questions, but he is prevented from giving them because it does not suit the stratagem of this government to proceed in that way.

What we have here is clearly a case where the Australian Capital Territory does have the power to make laws such as it has made. These laws do not breach the criteria that I mentioned: they are not there to protect corruption; they are not there to defend discrimination; and they are not there to prevent people from enjoying equal rights. We have a situation here where the citizens of the Australian Capital Territory ought to be able to exercise their rights to make a judgment as to the adequacies of the Stanhope government with regard to its implementation of the proposition which it took to the last election, which it has sought to refine through a consultation process with the citizens of the Australian Capital Territory, and which it has now enacted by way of legislation. And, as I say, that bill was amended 63 times in an attempt to respond to the Commonwealth.

The people of the Australian Capital Territory are the ones who ought to judge this question. They are the ones whose rights are being denied in this regard—as well, of course, as those who are directly affected by the instrument that the government has used via its executive fiat to repeal the Australian Capital Territory Civil Unions Act 2006. There is a clear and simple message here. There is an enormous danger in this parliament allowing this government to act in such a conceited way to undermine these basic human rights. What we have here is a clear device that this government is proceeding with in an attempt to pursue a policy that will apply to a very small number of people. It is aimed at a strategic political advantage and not at advancing the protection of its constitutional responsibilities—because they are not in question. (Time expired)

11:33 am

Photo of Gary HumphriesGary Humphries (ACT, Liberal Party) Share this | | Hansard source

One thing that I assume unites all of the members of this Senate and indeed this parliament is that we all believe in the democratic process. We are practitioners of it and we believe in it. It is our credo. Of course, democracy is not perfect. I think it was Winston Churchill who described democracy as being the ‘worst system of government except for all the others’. As practitioners of democracy, I think we know very well the kinds of constraints and shortcomings that democracy has.

There are certain rules that apply in Australian democracy. Those rules include that elections need to be held regularly, that ballots in elections need to be conducted in secret, that electoral systems need to produce parliaments that at least approximately reflect the voting intention of their communities and so on. There are many such conventions. There is another convention, and that is that, where parliaments have legislative power over matters affecting their community, and legislate in those areas, majorities must prevail. To that convention I think we could add another—not always honoured, I have to say, but one to which many Australians pay lip-service—and that is that, where governments outline their program before an election, they have a right, where the numbers are furnished by the electorate, to see that promise become law.

I fought hard to stop Jon Stanhope from obtaining a second term of government in the Australian Capital Territory. I believe his government has made serious mistakes—as last week’s scorched-earth budget pretty clearly demonstrates. Having said that, I also have to acknowledge that Jon Stanhope won a clear majority in the 2004 election and became only the second government in the 17 years of self-government in the Australian Capital Territory to have such a majority in the Legislative Assembly. I also note that the ACT has the fairest electorate system in the country—with Tasmania. I also acknowledge that Jon Stanhope went to the 2004 election with an explicit promise to legislate to recognise in law relationships between people of the same sex and to remove legal discrimination against gay and lesbian territorians.

And here the democratic process—which of course was conferred on the ACT 17 years ago by this parliament—provides a clear formula for what happens next: the ACT government is entitled to pass laws, in an area of its legislative competence, to effect an explicit promise made to the ACT community. I am familiar—we all are—with that formula. It was the same formula that allowed me to present and pass many bills as a minister in the ACT Legislative Assembly over many years. It was the same formula that allowed me and many of my colleagues to rise in this place and to speak and to vote for the Work Choices legislation and for many other reforms that the government had promised at the 2004 federal election—promises that we claimed, quite rightly, gave us a mandate from the Australian people. It is a fair process. It is well understood by the community and it reflects a long tradition in Australian public life. I believe it is a process which the government’s decision to revoke the ACT Civil Unions Act repudiates.

In short, we may not agree with the ACT’s legislative choices, but we have an obligation to respect them where they are democratically made. Of course, there are constraints on the ACT’s legislative power and those constraints are greater than those that apply to a state. It has been stated in this instance that the Civil Unions Act trespasses onto the Commonwealth’s prerogative over marriage. Section 51, placitum (xxi), of the Australian Constitution gives the federal parliament power to make laws over marriage. The powers in section 51 are not exclusive powers to the Commonwealth, as those in section 52 are. In other words, states may make laws in the area of power outlined in section 51 unless and until the Commonwealth passes laws inconsistent with those of a state or passes laws to comprehensively cover the subject matter of the particular head of power.

A couple of years ago, the federal parliament passed legislation explicitly stating that marriage is a union between a man and a woman exclusively. I support that statement in the law and on moral grounds. Marriage is an important institution in Australian society and it is worthy of being defended. Marriage is a union between a man and a woman, and there are good reasons, relating particularly to the welfare of children, why that should be so. I recently appeared on SBS’s Insight program to publicly defend the government’s views on this matter.

Despite my opposition to the position that the government has taken on this matter, I recognise that there are flaws in the ACT’s legislation. On balance, I believe the Civil Unions Act may well in places cross the line into the domain that the Commonwealth parliament has marked out for its exclusive treatment. Having said that, however, this too must be said: the Civil Unions Act is not fundamentally a law about marriage; it is primarily a law that removes discrimination against people in same-sex relationships. To revoke the entire act when, arguably, only a small part of it is unconstitutional is a bridge too far.

The power of the federal executive to disallow a territory law is undisputed, if unprecedented in practice. But, given that democratic government is well developed and well understood in the ACT community, that power should be exercised only in the most exceptional circumstances and only when dialogue and persuasion have failed. I am not convinced that there was no alternative to disallowance. The ACT government expressed its desire, perhaps a little ungraciously, to accept the right of the Commonwealth to dislodge provisions that went too far and intruded into its exclusive preserve of marriage. It corresponded with the federal Attorney-General on this subject. In turn, it made 62—I heard Senator Carr say 63—amendments to its legislation to attempt to bring it within its own area of power. It apparently failed, but in circumstances in which I believe it has made the best attempt to preserve its power to legislate for relationships other than marriage. The power to legislate over the head of the ACT and to disallow a law of the ACT must be a last resort.

I do not believe that the record of this government on matters to do with the treatment of gay and lesbian Australians in homosexual relationships is a bad record. Over the 10 years in which we have been in government, we can clearly point to a number of measures designed to remove discrimination against people in those positions. Only recently, Senator Vanstone took the step of legislating to remove the barrier to people in same-sex relationships from applying for visas under the skilled migration program, and the government has taken other measures to effect those reforms. The government has promised to undertake further reforms of that kind, and I welcome that announcement. However, we should not pretend that the work of removing discrimination of that kind is a matter only for the federal parliament; it is a matter also for state and territory parliaments. I believe that we must not prevent territory and state parliaments from exercising that power where they have a right to do so.

My position on this matter does not reflect any disrespect to the Governor-General or to his actions. His Excellency has acted in accordance with well established constitutional conventions and he has taken the advice of his ministers. My beef is that I do not believe that he should have been given that advice in the first place. It is a very difficult decision for a person who has been a representative of the Liberal Party in two parliaments over 17 years to say that he cannot, for the first time, agree with his colleagues on a matter of this nature, but I feel that today is a day when I must say just that. I indicate that there are many duties that a member of parliament has to perform and there are many loyalties that he or she owes, but mine must primarily be to the people who elect me: the people of the Australian Capital Territory. I recognise that they have, in effect, through the democratic process, made a decision, and I believe that we need to respect and honour that decision.

11:44 am

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | | Hansard source

I want to commence my contribution to this debate by quoting a politician who is known to everybody in this chamber. This politician stated:

I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so.

He went on to say:

I view the definition of marriage different from legal arrangements that enable people to have rights. And I strongly believe that marriage ought to be defined as between a union between a man and a woman. Now, having said that, states ought to be able to have the right to pass laws that enable people to be able to have rights like others.

The politician was George W. Bush, the President of the United States. I repeat that he stated:

I don’t think we should deny people rights to a civil union ...

So we are in the extraordinary situation where the Howard government’s position is in fact more extreme and more conservative than that of President Bush, who, as most people in this chamber would know, is regarded as one of the more conservative presidents in recent history in the United States.

It is unfortunate in this debate that the reality of the legal situation before this chamber—the legislation passed by the ACT—has not actually been the subject of the debate. This debate has been mired much more in the rhetoric and, from the government’s perspective, it has stayed there. The legal reality appears to be virtually irrelevant to the position that the government is espousing. The Howard government effectively seeks to disregard what it knows to be the legal and practical reality of the ACT legislation because, and only because, it discerns some political advantage in denying some legal recognition to same-sex relationships. It ignores these realities because it seeks to exploit the prejudices of some in our community. It appears not to be interested in the legal effect of the legislation and it appears not to be interested in working constructively with the ACT government to resolve this issue—my colleague Senator Carr has outlined that. It is not interested in engaging constructively because it wants the fight. It wants this legislation to be used as a political football.

So let us look at the actual legal effect of the ACT act. I agree with Senator Humphries: under our Constitution, marriage is exclusively for this Commonwealth parliament to define and to regulate. States and territories cannot legislate as to marriage. The Marriage Act 1961 has within it, as a result of the actions of this parliament, a definition that confirms that marriage can be entered into only by a man and a woman, and nothing any state or any territory can do can change that. All the states and territories can do, if they so choose, is to legislate for the recognition of and therefore consequent rights for same-sex relationships. They can never make these marriages.

The ACT government has chosen to do this. It is a proposition even President Bush is on the record as countenancing, and the logic really is difficult to fault. If you deny access to one institution—that is, marriage—is it appropriate that you also deny any alternative form of recognition to such relationships via state and territory laws? The only reason you would deny alternative recognition is because your position is in fact that you do not want any recognition for those relationships and therefore no consequent rights. Yet this is precisely what the Howard government seeks to do in relation to the ACT.

This is exemplified by the government’s refusal to engage with the ACT to find a constructive solution to this. They have not engaged because they do not want a resolution. They say it is too like a marriage. I will pose some questions to the government, but I doubt I will get an answer. Which rights do you say ought to be removed in order for this bill to become acceptable? Which rights would you delete in order for it to be acceptable for a same-sex relationship to have recognition? Which rights would you remove in order for this to be okay? Would it be medical consent? Would it be the fact that you have to pay stamp duty? Would it be the disposition of property? Would it be the rights if someone dies intestate? Which of these rights, which are conferred through the ACT legislation, so offend this government that they have to strike this law down?

If it is one particular right, such as the stamp duty issue, perhaps you should put it back to the ACT government that you would like that taken out. Which rights do you want removed? The fact is, you will not engage in that discussion because ultimately you do not want recognition of those relationships. I doubt that the government will answer me when I ask them which rights should be removed to make this legislation acceptable.

It is instructive to have a look at some of what our Prime Minister has said to get some indication of his motivation in this regard. Earlier this month—about a week ago—he gave an interview. He was asked specifically about the ACT legislation. He said:

The fundamental difficulty I have with the ACT legislation is a clause which says that a civil union is different from a marriage but it has the same entitlements.

He went on to say:

That is the equivalent of saying to somebody who’s passed the HSC and wants to get into a particular course, it’s saying to them well you haven’t got the requisite tertiary score but we will let you go in the course anyway.

It appears that what he is saying—quite clearly—is that gay and lesbian Australians do not make the grade. We are akin to students who are not smart enough; we do not have the marks; we are not qualified to have our relationships recognised. As we know, the content of a relationship has nothing to do with whether the people are smart enough. The fact is, what the Prime Minister is saying to these people is, ‘You don’t make the grade because you’re gay.’ I do not know how it is that people in this place and in other contexts can dissemble and suggest that the government’s position is not about prejudice and is not about discrimination.

But this is nothing new from our Prime Minister. The trademark of his leadership of this country has been the way he has tried to marshal prejudice in this country to perceived political ends. There is a long history of the Howard government doing this and of this Prime Minister doing this. Even as Leader of the Opposition, when he raised the issue of Asian immigration in 1988, that was what he was trying to do. When he defended Hanson’s right to speak rather than defending the experience and rights of Indigenous and Asian Australians, that was what he was trying to do. When he talked about security concerns around the Tampa, despite the fact that all of the Tampa people actually were eventually admitted to this country, that is what he was trying to do. When he talks about mushy multiculturalism, that is what he is trying to do. He is trying to do it again now with this legislation.

It has been suggested that civil unions will undermine marriage. I ask this question: how will the recognition of some same-sex relationships in the ACT undermine marriage? Do people really believe it will make marriage less secure? Do they believe it will make marriage less long-lasting? Do they believe it will make marriage less popular? I ask: why is it that this government is so antagonistic to the prospect of other people’s relationships getting some recognition?

I want to make some comments about the tone and content of this discussion in the public arena. We have a privileged position as members and senators in this place. We all know that politicians have power, some more than others. Political leaders particularly have power. When we say things, it has an effect. We should exercise this power with restraint and we should ensure that we do not use it to foster prejudice or to marginalise people. Yet the tone and content of this debate—an example being the Prime Minister’s comments—has often been to pathologise and implicitly or explicitly criticise gay and lesbian Australians and their relationships. I ask people to consider how that feels for gay and lesbian Australians, their children, their families and their friends. Is it any wonder that people feel angry? Is it any wonder that they feel hurt? Is it any wonder that there are people who lobby very hard for these changes and become quite passionate about them? They are consistently and regularly being pathologised by the comments of this government and, more particularly, by the comments of the Prime Minister.

There are those in this discussion who appear to think that there is something to fear from people in same-sex relationships and that there is something to fear from people who are gay having children. I want to make the point, because the issue of children has been raised on a number of occasions, and I want to make the point very clearly: civil unions legislation will not increase or decrease the number of people in Australia who are gay and have children. It is entirely irrelevant to it. People in same-sex relationships probably aspire to and struggle with similar things to people in heterosexual relationships. They struggle with things and they aspire to something similar—perhaps stability, security, nurture and love. I say to people who are so fearful of these sorts of relationships: they may be beyond your experience and your understanding, but they ought not to be something that you fear so much.

I would like to make some comments about the Labor Party’s position on this, which has been articulated by Senator Ludwig and Senator Carr. I want to put on the record that I am both proud and appreciative that the Labor caucus has taken the decision it has. I want to put on the record that I acknowledge that this is a difficult decision for some in our caucus. For some it is difficult because of perceived electoral disadvantage. For some it is because they have deeply held personal views on these issues, and I do respect that. However, I want to say that I believe this decision is consistent with the best of Labor traditions. We are a party founded on an ideal of fairness. We were founded on the principle of fairness for working people—a fight that, over 100 years later, we are still taking up to the government in the face of their extreme industrial relations laws. Over the years, the Labor Party has come to understand and enact in government the principle of fairness insofar as it applies to women and also to people of different races. We have come to recognise that fairness is not simply a commodity for some but is inherently a principle for all. We cannot endorse continued unfair treatment of certain citizens in this country simply because of their sexuality.

I hope there will come a time when this country can look back and wonder why some in this place and some in this government were so frightened of and antagonistic to certain types of relationships. I look to a day, to paraphrase a great man, when we not only judge people by the content of their character but also where we judge their relationships by markers such as respect, commitment, love and security and not by the gender of their partners. I look to a day when government policy and articulation is not so mired in prejudice. I look to a day when we have a government that is not so mired in prejudice that it can address these issues fairly. One thing I do know is that that will only come under a Labor government.

11:57 am

Photo of Steve FieldingSteve Fielding (Victoria, Family First Party) Share this | | Hansard source

Family First strongly opposes the ACT Civil Unions Act 2006. For this reason we strongly oppose the disallowance of the instrument disallowing the Civil Unions Act 2006. The issue before us is a simple one. The Civil Unions Act wants to make civil unions between same-sex couples the same as marriage. The definition of marriage in the Marriage Act states that marriage is ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’. But the ACT legislation states that a civil union is to be treated for all purposes ‘in the same way as a marriage’. Quite clearly the ACT legislation seeks to establish a new kind of marriage—a marriage between people of the same sex, just under another name. Family First says this is not on. This undermines the status of marriage, and that is something the Australian community does not support. Marriages bloom between a bride and a groom. Family First represents ordinary Australian families and mainstream values. For this reason, we believe it is vital to defend marriage.

But that is not enough. What Family First believes we should be doing as a community and in this parliament is putting the case for marriage—promoting marriage, strengthening marriage and improving marriage. That is what the Australian community wants. Let us look at the case for marriage. Marriage is one of our most important cultural institutions. It was created and maintained over thousands of years and has stood the test of time. Marriage is the foundation for family life and offers the best environment in which to bring up children. Family First believes that too often in these debates children get ignored. The interests of children must always come first, and it is in the child’s best interest to be raised where possible by a mother and a father who have made a lifelong commitment to each other through marriage.

As I said earlier, marriages bloom between a bride and a groom. Men and woman have different but complementary contributions to make as father and mother, and a child needs both—a male parent and a female parent. It is stating the obvious, but it is important to state that the major difference between marriages and same-sex relationships is that marriages can produce children. If we allow gay marriage, what comes next? Will we have laws banning the words ‘mum’ and ‘dad’ from school textbooks? Will the words ‘mother’ and ‘father’ be banished from our TV screens and movies? As far-fetched as it sounds, this is already, sadly, happening. Just recently we learned that Victorian schools are being advised to dump the words ‘mother’ and ‘father’ in a campaign to promote same-sex parents. The new teachers manual also says pupils as young as five should act out plays where they have two mothers.

There is no doubt that marriage is under attack, which is why it is not enough simply to defend marriage, but to promote, strengthen and improve it. Other arguments in favour of marriage include that studies show that people who are married are healthier and happier and they feel a greater sense of worth, security and stability. Studies also reveal that the overwhelming majority of Australians aspire to marriage and what it usually leads to, that is, family life.

Of course it is true that many marriages break up, despite the best efforts of husband and wife, and that is a tragedy because of the devastation it causes to all parties, particularly children. But that is no reason to weaken or undermine marriage, which is what the ACT legislation would do. Marriage is the ideal—it is the best form of relationship society can aspire to—and Family First is passionate about protecting marriage, strengthening marriage and promoting marriage. The more we can do to protect, strengthen and promote marriage, the better Australian society will be.

It is interesting that the ACT Civil Unions Act focuses on people of the same gender. Why just them? What about any two people who live in a codependent relationship and want it socially and legally recognised? For example, Family First knows of two sisters who live together and care for one another on a permanent basis. Why should they not also be included? The reason is because the ACT Civil Unions Act is not merely about recognising interdependency and commitment. It was specifically created for same-sex couples so as to legitimise and endorse their sexual relationships.

As I mentioned earlier, marriages can produce children; same-sex relationships cannot. Therefore, a sexual relationship between a man and a woman has much greater responsibilities, which is why we recognise those relationships differently. The federal government made its objections clear to the ACT government about how its Civil Unions Act was simply marriage by another name. The ACT government rejected the federal government’s arguments—and, frankly, I think they were being mischievous—which is why we are here now.

There is widespread community support for overturning this legislation. I was particularly interested to read that the Muslim leader Sheikh Fehmi Naji el-Imam has spoken strongly in support of the federal government’s position. The federal government has the legal power to overturn legislation passed by the territories. The ACT is not a state and we should not pretend it is. So it is quite in order for the Commonwealth to overturn legislation which undermines one of our most important institutions—marriage. Family First strongly opposes this motion.

12:05 pm

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I rise today—

Photo of Julian McGauranJulian McGauran (Victoria, National Party) Share this | | Hansard source

Just table it.

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

because I know that Senator Abetz is desperate to hear what I have to say, and his suggestion that I table my remarks—

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | | Hansard source

Point of order! You are misleading the Senate.

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

For Senator Abetz’s edification, I feel that I must speak at length. I question the motivation of the federal government’s opposition to this disallowance. I cannot help but feel that the motivation is precisely the same as that of Prime Minister Howard’s good friend George Bush: it was very clear that his recent attempt to support a constitutional amendment in the United States to legally define marriage as being between a man and a woman was more about helping George Bush keep the White House than it was about the actual context of the debate. What we are seeing in Australia at the moment is Prime Minister Howard sending a strong signal, ahead of the federal election next year, as a rallying call to social conservatives to continue to support the coalition. That is precisely what is happening here.

This has much wider connotations than it may at first appear. This debate is essentially about values and the way that the two sides of politics see the world. It has been helpfully described by George Lakoff, who does a great deal of work around values. He has outlined what is essentially true: that conservative and progressive politics are organised around two very different models of family life and that those two different models translate into every way political action is taken.

One of the models of married life is the ‘strict father family’. The other model is a ‘nurturing parent family’. Let us start with the strict father family, the model that was just outlined by Senator Fielding from Family First. The strict father is the moral authority and master of the household, dominating both the mother and children and imposing needed discipline. Contemporary conservative politics turns these family values into political values and they are: hierarchical authority, individual discipline and military might. Marriage in the strict father family must be heterosexual marriage. The father is manly, strong, decisive, dominating, a role model for sons, and for daughters a model of a man to look up to. That is essentially the model of conservative politics.

If you translate that model into conservative politics, it says that the citizens are children of two kinds. You have the mature, successfully disciplined and self-reliant ones, and for that you read wealthy businesses and individuals whom the government should not meddle with—that is, small government. Or you have the whining, undisciplined, dependent ones who must never be coddled, and, as in the family, the government must be an instrument of moral authority, upholding and extending policies that express moral strength. So we have the role of government as protecting the government and its interests in a dangerous world by maximising military and political strength. We have the promotion of unimpeded competitive economic activity so that both the disciplined moral people and the undisciplined immoral ones are able to receive what they each deserve based on their own choices. Finally, the government must maintain order and discipline, through severe enforcement of the rules if necessary. Hence, we have the overriding of the ACT in this particular case.

The other value system, from the progressive side of politics, would have the nurturing parent model, where you have two equal parents whose job is to nurture their children and teach their children to nurture others. Nurturing has two dimensions: empathy and responsibility for one’s self and others. Responsibility requires strength and competence. The strong nurturing parent is protective and caring, builds trust and connection, promotes family happiness and fulfilment, fairness, freedom, openness, cooperation and community development. These are the values of strong progressive politics. And though again the stereotype is heterosexual, if you want to look at that, there is nothing in the nurturing family model to rule out same-sex relationships and marriage. It is a vastly different view of the world.

As it is translated into politics, a progressive government has to be strong enough to carry out progressive goals. It promotes safety and protection for life, health, the environment and human dignity, translating into support for the social safety net, health care, environmental protection laws, protection offered by the police and military, governmental laws and policies to ensure protection from unscrupulous business, pollution, unsafe products in the home, unsafe working conditions and so on. It is also expressed in fulfilment of life in many ways—through satisfying and profitable work, lifelong education and learning, and appreciation of the arts, music and culture. That translates into support for schools and universities, for fairness and freedom in terms of civil liberties, offering equal protection under the law and equal rights for all citizens. So it is a vastly different model.

I would argue here that the subtext of this piece of legislation is a signal to the electorate that the Howard coalition government—that is, the Liberal Party, the National Party and Family First—are sending a strong signal that if you support them you support the values of the strict father family, and those values mean that you do not support equality before the law and you do not support the absolute basis of freedom, fairness and human dignity. That is the question that I put to the other side of politics today. Do you believe in equal rights? It is simple and straightforward. If you do believe in equal rights, if you do believe in equality before the law, if you do believe in tolerance and fairness, if you do believe in love and commitment, then denying lovers the right to a civil union is a violation of human dignity. It is discriminatory and it basically says that you do not believe in equal rights. That is the crux of this particular debate.

In the Tasmanian parliament I had a long experience of this, since the issue of gay law reform was long argued in Tasmania. It was introduced first by my colleague Senator Bob Brown and eventually it was my bill that secured gay law reform in Tasmania. It will shock people to know that up until 1997, when my bill was ultimately successful, you could be jailed for 21 years in Tasmania for being a practising homosexual. That was the case until 1997. When I moved to change that, to eliminate that discrimination against gay people in Tasmania, there were people who predicted that the sky would fall in, that the moral fabric of our society would be destroyed and that marriage would be destroyed. We heard all of the same arguments we have heard here, and nothing could be further from the truth. I have never experienced such intolerance, such hatred, such meanness, such vindictiveness, as I got in that debate from people who called themselves Christians. From people who called themselves Christians I got a level of vindictiveness and hatred that I never experienced in any other debate in politics in Tasmania. I was shocked by that, and I constantly said to people that they should do unto others as they would have them do unto them.

This is the point that I am making here: we are talking about equality, we are talking about antidiscrimination. And I would argue that that bill ending that discrimination against gay people was one of the most progressive and society-changing pieces of legislation in Tasmania in the nineties because it brought with it, to my great pleasure and surprise, a whole change in the way that people related to one another. It was as if the doors and windows had been opened. There was a happiness, a level of tolerance and a general spirit of wellbeing that had not been there as long as the small-mindedness had existed.

It is about discrimination. I draw to your attention what happened in South Africa. I think this is really interesting. After the years of fighting against apartheid in South Africa, they got a new constitution which expressed a commitment in that country to the elimination of discrimination not only on the grounds of race and skin colour but also on the grounds of gender and sexual orientation. In their Freedom Charter, the ANC said that they were very firmly committed to removing all forms of discrimination and oppression in a liberated South Africa, and that commitment must surely extend to the protection of gay rights. One of the noted freedom fighters in South Africa said at that time:

What has happened to lesbian and gay people is the essence of apartheid—it tried to tell people who they were, how they should behave, what their rights were. The essence of democracy is that people should be free to be what they are. We want people to be and to feel free.

In a speech commenting on what had happened in South Africa, Justice Kirby said:

Perhaps those who have felt the pain of discrimination on the basis of their race and skin colour (which they cannot change) understand more readily than many Australians the pain and wrong-headedness of criminalising people on the grounds of their sexual orientation (which likewise they cannot change).

In this case it is not about criminalising. In this case it is about ending discrimination. It is about recognising love and commitment—and surely isn’t that the very definition of the marital ideal, of what marriage, of what civil union is fundamentally about: love and commitment? Don’t we need more love and commitment in this world? Isn’t that what we would all be aiming for? Why do we want to spend time in this parliament denying people the right to civil union and telling people that we have a right to violate their human dignity and we have a right to tell them that they are not equal before the law?

It is time that Australians saw this particular debate for what it is. It is an attempt to shore up the coalition by sending the worst possible signal to social conservatives around the country that, if they want to advantage big business and the rich in Australia, who, to the detriment of the poor, want small government and, as I said, the removal of a whole lot of the community safety nets that we have had for a long time, then the way to do that is to reinforce the strict father model of Australian politics, vote for the coalition and not go with a more open, generous and fair society. So this is a values debate. Let us get that firmly on the agenda. It is about values.

Photo of Julian McGauranJulian McGauran (Victoria, National Party) Share this | | Hansard source

And you are anti father.

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I hear an interjection that tells me that I am anti father. Quite to the contrary, my model of politics is of progressive politics. And I repeat: my model of family is the nurturing parent family—the one that supports empathy and responsibility, where both parents have a major role to play in a society which also respects sustainability. And sustainability means looking not only at the social fabric but also at the environmental fabric and making sure that neither is pursued to the detriment of the other—and that is where I think we would have a vastly different view of the world from that of Senator Abetz.

In terms of my view of the world, healthy communities are needed for healthy individuals. Policies that support healthy communities do include well-trained and equipped people working in hospitals, clinics and institutions that care for the community. It would mean access to fair lending laws, adhering to environmental standards, cooperating, meeting shared goals and open communication requiring trust. In foreign policy terms, my model would have cooperation and multilateralism, not the moral right to go in and bomb where you see fit to do so in association with another strict father figure—that is, President George Bush in the United States. So it is a vastly different view of the world as expressed here. But let me tell you that progressive politics is reclaiming the values debate in Australia. Progressive politics is out there saying, ‘We stand for freedom, fairness, antidiscrimination and equal rights under the law.’

Photo of Julian McGauranJulian McGauran (Victoria, National Party) Share this | | Hansard source

And that is why we have the majority.

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

Yes, you do have a Senate majority at the moment, but let me tell you that, after next year’s federal election, that Senate majority will be gone, because the Australian people are desperate to rescue the Senate from the intolerance and heavy-handedness that we are seeing from this government. People do not like the abandonment of multilateralism. Don’t you think Australians are humiliated today that on the London Tube people can pick up a free newspaper and see that Prime Minister John Howard has moved to overrule the civil union legislation in the ACT? The whole of London can pick that up today and see where Australia is going as the deputy sheriff to the United States—abandoning multilateralism and now abandoning even the principle of fairness and equal treatment under the law.

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | | Hansard source

What’s that got to do with the price of fish?

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

Senator Abetz might be very proud to have London reading the story about this today. I am not, because I respect the Australian Constitution. I respect the ACT parliament and its right to make laws for its people. But, fundamentally, this debate is about much more than that. I am a proud Australian, just as you are, but the values that I want to put out there for my country are freedom, cooperation, respect and human dignity. Every time that you stand up for Guantanamo Bay and you are proud of the fact that you are keeping David Hicks incarcerated there, every time that you stand up and overrule issues like this, Senator Abetz, you are sending a message to the rest of the world about what this country stands for. When you stand in front of that flag and invoke Gallipoli and the spirit of the Anzacs, let me tell you that you do not stand for the values of the majority of Australian people, who believe that the soldiers who went to Anzac Cove went to fight for freedom, democracy, tolerance, the rule of law and antidiscrimination. They did not go and stand for violating human rights. They absolutely did not go for that reason. Those soldiers would turn in their graves if they knew what has happened with regard to the Geneva convention against torture. Let me tell you that.

So let us hear it: what is your fundamental value system? How does that value system correlate with keeping David Hicks in Guantanamo Bay? How does your value system stand with violating UN sanctions and going into Iraq? How does your value system sit with not even being prepared to keep a list, a count, of civilian deaths in Iraq because of your government’s attitudes? Tell me that in the broad context of a values debate. I will tell you that the Australian people want fairness, tolerance and decency. They do not want to see an absolute violation of human rights and a refusal to treat people as equal under the law, which is what the Commonwealth is trying to do in overriding the ACT’s legislation. I hope that there will be sufficient numbers of people who respect the long history of liberalism, before the whole neoliberal debate came on. People who are true liberals in this parliament will cross the floor and vote for equal treatment under the law. They will vote for love and commitment, not intolerance and discrimination, in relation to this legislation.

12:25 pm

Photo of Ron BoswellRon Boswell (Queensland, National Party) Share this | | Hansard source

That was a very enlightening speech that went across a number of subjects, ranging from wealth to values and so forth. The National Party has values—very strong values. One of those values is that the family is the basic unit of society, and that is founded on marriage. As someone who has enjoyed over 40 years of marriage, I stand very firmly against this motion moved by the Labor Party and the Democrats. I enthusiastically support the leadership decision to oppose this motion.

The ACT Civil Unions Act would have enabled same-sex couples to have a legally recognised civil union very similar to the marriage of heterosexual couples. The arrangements under the act bore marked similarity to those contained in the Marriage Act. Effectively, the Stanhope government was seeking to create an alternative system of marriage like relationships in the ACT in order to circumvent the definition of marriage in the Commonwealth Marriage Act.

We are strong defenders of traditional family values. There is no partnership, alliance or relationship that can be equated with the marriage of a man and a woman. This is an entity that cannot be replicated in any other form. The cynical motivation of the ACT government was demonstrated when it fast-tracked the commencement of its legislation in a bid to create civil unions which it knew would be invalidated by the Commonwealth. The ACT does not have the constitutional power to legislate like this for marriage. If it wants the constitutional power it should go to the people of the ACT and say, ‘We don’t want to be a territory anymore; we want to be a state.’ If they want the full right to statehood, they should go and take it up with the people.

The ACT government has shown it is willing to cynically use homosexuality as a political football against the Commonwealth. The Australian government was not prepared to countenance this political stunt. An instrument to disallow the ACT Civil Unions Act was made in the Executive Council on Tuesday. The instrument had the effect of invalidating the ACT Civil Unions Act from midnight that night. Therefore, there is no legal basis for the formation of civil unions.

While the government generally considers that issues concerning same-sex relationships are matters for the states and territories, The Nationals are strongly opposed to any action that would reduce the status of marriage to that of other relationships or which would create confusion over the distinction between marriage and other relationships. The government wrote to Mr Stanhope, expressing a range of concerns about the legislation and the extent to which it served to confuse civil unions with the institution of marriage.

The ACT government did make some amendments to the bill before the debate on it and its passage through the ACT Legislative Assembly, but they did not deal adequately with the fundamental concerns of the federal government. As one example, the legislation still states in section 5(2):

A civil union is different to a marriage but is to be treated for all purposes under territory law in the same way as a marriage.

It is a marriage when you do not have a marriage.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party) Share this | | Hansard source

It’s a Clayton’s marriage.

Photo of Ron BoswellRon Boswell (Queensland, National Party) Share this | | Hansard source

It is a Clayton’s marriage. In the government’s view, the amendments did not alter the substance of the ACT law. The legislation clearly undermined the institution of marriage and was an attempt to circumvent the definition of marriage contained in the Commonwealth Marriage Act. In 2004, the Labor Party, the National Party and the Liberal Party clarified the understanding that marriage is a union of a man and a woman to the exclusion of all others. This was supported by both sides of parliament. A civil union of two people of the same gender cannot therefore be equated with a marriage.

So even though the federal government advised them of their lack of standing with the Civil Unions Act, the ACT proceeded regardless, for a political stunt. The ACT deliberately set out to equate civil unions with marriage, which is a contravention of the definition of the Marriage Act, for which the Commonwealth has sole authority. They knew that; they were advised of alternatives; and yet they continued to proceed down the original path. There was a way through that did not offend the Commonwealth act, but the ACT government did not choose to go down that path. Perhaps the ACT should pay more attention to keeping their schools open and their budgets in balance than playing diversionary politics.

The Nationals believe strongly in the fundamental institution of marriage, as defined by this parliament as recently as 2004. We will take the necessary steps to defend marriage and do whatever it takes. In the end, it is the ACT and its citizens who are diminished by their government’s rank amateur behaviour.

12:31 pm

Photo of Ruth WebberRuth Webber (WA, Australian Labor Party) Share this | | Hansard source

I would like to commence my remarks by quoting a well-known politician—a person well known to this chamber. In December 1998, when speaking on the Universal Declaration of Human Rights, he said:

Since 1948, Australia has given strong bipartisan support to the declaration and the principle that human rights are both universal and indivisible. At home, Australia has built a society which places the utmost importance on the values of decency, fairness and tolerance.

When discussing the need for a Constitutional preamble, in August 1999 he said:

It is also important that the preamble express those great principles of liberal democracy to which all of us subscribe: freedom, tolerance, individual dignity and the rule of law. The great strength of the Australian nation is built upon those inherited values that we have. It is not built upon a formal bill of rights; rather it is built upon the instinctive values of the Australian community and those institutions, including this parliament, the federal system and the democratic character of our nation that provide the underpinning of the free society in which we live.

In both cases, I am of course quoting our current Prime Minister, John Howard.

We have had much discussion in this debate about the values that individuals bring to this place and that different political parties hold. One of the values the Australian Labor Party holds that I am most proud of is our commitment to the fundamental principle that all people should be equal before the law. That formal equality or equal treatment is an intrinsic concept that underpins our international and Anglo-Australian legal culture. An important right that citizenship confers upon citizens is equal treatment before our law. Formal equality guarantees that the law is administered in a fair, just and impartial manner in the interests of the individual. Equality before the law is undermined when the law distinguishes between people because of their sexual orientation.

Like the Stanhope Labor government, before the 2001 state election the Western Australian branch of the Labor Party made a clear commitment to amend Western Australian laws to recognise that lesbians, gay men and bisexuals have the same rights as other citizens in Western Australia and therefore should be equal before the law. The rights of territories and states have been canvassed here most recently by Senator Humphries and by others. Territories and states of various political persuasions have often passed legislation that I have personally disagreed with. I can think of numerous examples passed by the Court government, including extinguishing the rights of workers, and I am sure I could think of examples passed by the previous Northern Territory government and by the government that, indeed, Senator Humphries was a member of. But I will always—although I regard myself as probably more of a centralist—defend the rights of those democracies to pass the legislation that they are elected to proclaim.

In my view it is incumbent upon all of us, when considering issues like this, to balance competing rights and values. It is a measure of our maturity as a democratic society that we are able to debate matters where divergent views are held and to create solutions that balance the right to hold personal views in the private sphere with the right to exist without harm and discrimination in the public sphere. In my view, the acts of the current government fly in the face of this very important principle. I would also like to place on record my appreciation of the tolerance and understanding that has been shown by members of my own party who do not necessarily hold the same personal view that I do on this issue. This debate within the Labor Party, if not within this chamber, has been handled in a very sensitive and democratic way.

I would like to conclude by pointing out that in 1861 John Stuart Mill argued that society should offer equal opportunities for all its members. Mill argued for ‘a principle of perfect equality, admitting no power or privilege on the one side nor disability on the other side’.

12:36 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I rise to support this motion for the disallowance of an instrument made by the Governor-General disallowing the ACT’s Civil Unions Act, and to appeal to senators on both sides of the House to simply accede to commonsense. My colleagues have very clearly outlined our position on this motion. However, I felt compelled also to make a brief statement so that I could look into the eyes of the thousands of Australians who are being affected by the government’s action. I did it particularly so that I could look into the eyes of my friends and loved ones who could be affected by this government, so that I can say I did everything I could to uphold the meaning and value of the long-term, committed relationships that they have been in and are in. We value those relationships.

Whether the Prime Minister likes it or not, as of 2004 there were at least 20,000 couples, 40,000 people—these figures come from the Australian Bureau of Statistics—who want to be married, are living as married couples and are not heterosexual. These people confirmed it through the census process. They are part of the lesbian, gay and transgender community, and more importantly they are part of the Australian community.

Once again Australia has been dragged along behind George W Bush. President Bush introduces a constitutional amendment banning same-sex marriages; John Howard decides he wants a crackdown here too. There is no contentious point of constitutional law here. Let us call this what it is; it is simply homophobia dressed up in a bogus argument about the rights of states and territories to govern themselves, and in other spurious arguments. You have to accept that these 40,000 Australians are equal citizens in law. What we are talking about is making them unequal in law. Having specifically excluded their rights to marry under Commonwealth law in 2004, the Prime Minister is now pursuing them via this shambolic and heavy-handed process of overturning an act that passed lawfully through the ACT Legislative Assembly.

The Commonwealth government has provided no coherent rationale for whose interests it is protecting in this attack on the rights of same-sex couples to be treated equally by the law. We have not been told whose interests are being harmed by what the ACT Legislative Assembly has done. In fact, what it has done is to make these people equal before the law. The Prime Minister and Attorney-General have fallen back on vague, unsupported claims that the institution of marriage has been undermined. I would like the government to show me how this institution has been undermined in any of the states around the world where commonsense has won over prejudice and discrimination. Can the government show that the institution has been undermined in Canada, the Netherlands or Spain? Of course it cannot.

I want to remind the Prime Minister and those who follow his lead that real people in committed relationships are harmed by intolerance. I want to quote from a letter that I received this morning from friends of mine in Western Australia who had to travel to Canada to have their marriage recognised in law. This is from Graham and Damian Douglas-Meyer:

Even though we were covered in WA by some of the best de facto laws in the country, we wanted to demonstrate our committment to each other, in the same way our siblings have demonstrated their committment to their respective partners.

The symbolic and ceremonial aspects of our siblings marriages were important to our families and we felt strongly that we wanted the same.

We held a committment ceremony in Perth in May 2004 with all of our family and friends and had our union blessed by an Anglican priest. Even though this had no legal standing, it was to us, and to our families, our wedding ceremony.

However, we also wanted to gain the recognition from the wider community.

Our siblings were all married and had a state-sanctioned contract to that effect. We could not do the same in Australia. However Canada had recently changed it’s laws to allow same sex couples to marry and non-residents were welcome to access those laws.

So after our wedding, we flew to Toronto and were married, legally under Canadian law, on March 26, 2004 in Toronto City Hall. Our marriage is registered with the Registrar General of the province of Ontario in the exact same way as any heterosexual couple. There is no difference.

Returning to Australia, of course, our marriage wasn’t recognised, but we are still married. Under the Hague Convention for the celebration and recognition of foriegn marriages, it should be recognised, but the passing of the amendments to the Marriage Act on Black Friday, August 13 2004 put paid to that.

However, to us we are married. In Canada we are married. In Belgium, the Netherlands, Spain and the US state of Massechusetts we are married as those jurisdictions all recognise foreign same-sex marriages.

In New Zealand our marriage is a civil union; In the UK it is a civil partnership; both automatically. In Tasmania, it is automatically equivalent to a registered domestic partnership.

And in the ACT it was to have been recognised as a civil union, and we hope that, from today, it will be again when the Senate re-instates the ACT Civil Unions Act.

However, in the eyes of our family and friends, and most importantly in our hearts we are married; we are husband and husband.

12:43 pm

Photo of Lyn AllisonLyn Allison (Victoria, Australian Democrats) Share this | | Hansard source

I rise to speak briefly on this motion for the disallowance of an instrument made by the Governor-General disallowing the ACT’s Civil Unions Act. I support it, as all my Democrats colleagues do. We are amazed at the hypocrisy that has been shown over the last couple of days on this issue. It was only a couple of weeks ago that the Prime Minister came out and said he was prepared to remove the discrimination against same-sex couples. The next thing we hear is that removal of the discrimination against same-sex couples which exists in terms of the recognition of their relationships was not going to be possible. The government would trample on the ACT government’s rights to legislate on this issue and to produce the choice for same-sex couples to have those relationships recognised. It would wipe that out.

We still, of course, have not seen those major areas of discrimination tackled. The Democrats have put up amendments time and time again—for superannuation in the Public Service, for instance, which still discriminates heavily against same-sex couples. We put up amendments for Medicare every time there was a debate about safety nets or other real ways in which discrimination is absolute and in your face, as it were, and social security generally.

But, to some people’s minds, those things are not as important as the ability to have a union recognised as such, which is a deep-seated need in people’s lives. That is why people get married: they want others to know that they are in a permanent relationship with the person of their choice. For them it is a fundamental right. But it is denied to same-sex couples. In countries where it has been made available, as has already been mentioned in this debate, the institution of marriage between couples of opposite sex is not somehow suddenly diminished.

It is clear to me that people who write to me on this issue urging me to oppose same-sex unions are confusing the outcome of this. We are talking about a recognition of a relationship which exists; it is not one that might exist if it were possible through legislation. It is as if, by doing this, we are somehow encouraging people to go off and find relationships with people of the same sex. That argument is so banal and ridiculous as to hardly even be worth responding to, but that is the basis of the opposition that we are hearing in this place and outside it. That argument is discriminatory in this day and age. It offends against so much of what we say about ourselves as being tolerant people who seek to remove discrimination at every level in society. That is what we are on about in this place, and yet all it does is entrench discrimination and intolerance and encourage the message to be sent to people who are in same-sex relationships or same-sex attracted that they are somehow less worthy than others.

That is a really damaging message to send people. It is little wonder that there are higher rates of suicide amongst people who identify with that group or that there is such a high level of dissatisfaction with, in some cases, the way in which society sees them. If we want to be an inclusive society then we need to include all people, no matter what their race, sexual identity and sexual preferences are. We have to be serious about taking that diversity on board across society because it benefits the health of the whole nation.

It was with profound distress that most of us greeted the news that the government would stomp on the ACT. I think the ACT has done the right thing. It not only did the right thing but also went out before the last election and said that it would do the right thing. The good folk of the Australian Capital Territory have supported a government which has said it would remove this discrimination and the Howard government has come in over the top and said: ‘No, you won’t. We like this discrimination being in place. We have some rather strange ideas about what sort of threat civil unions entail for the rest of us and we are suddenly frightened of the prospect. We think that by legalising civil unions there is in some way a broader threat to society.’ I think that we in this place are adult enough to know that that is not the case. It is a nonsense, and a further slight on people who are in same-sex relationships.

I certainly hope that to some extent there is a conscience vote on this issue. I know there is not going to be a conscience vote as such, but I hope that enough members of the Liberal Party recognise that often many of their constituents are and will be in same-sex relationships and care about what happens to this bill in a big way. Even those who do not necessarily want to have a same-sex marriage or civil union recognised care, because they know the effect that it has on people. The message that this sends is: you are less worthy than we. That is not tolerable in this day and age, and that is the reason the Democrats will be voting with this disallowance. As I said, we are extremely disappointed that the Howard government has come down to doing what it has.

12:49 pm

Photo of Kerry NettleKerry Nettle (NSW, Australian Greens) Share this | | Hansard source

I will sum up the debate on the motion before us, which I am proud to be moving, by reading a letter that I have received from a man living in Canberra. He writes:

I am a 58 year old gay man who has been living in Canberra with my partner (of similar age) for the past 14 years.

We are both ex-servicemen. His was a long career in the army, mine a short one as a National Serviceman in 1969-1971.

We have both worked extensively in the Australian Public Service; in my case, in Social Security, Health, and Veterans Affairs portfolios for many years.

Each of us has at various times held Top Secret security clearances either in the military or in sensitive public service portfolios.

Both of us have lived the majority of our lives in situations where our relationship was considered to be criminal, in one state or another.

Throughout my partner’s military career he kept his sexuality utterly secret, since the alternative (till the early 1990s) would have been summary discharge from the Services. I was more fortunate in that the public service reformed its attitude a little earlier.

Governments were happy to accept our contribution to the national good, but for many years they did so on the condition that we lied about our personal lives and pretended to be something we were not. As for entitlements, we were expected to be grateful for not being arrested.

Those days of hypocrisy and persecution are largely past. But whilst all Australian states and territories have now decriminalised same-sex relationships, we are not accorded recognition by social security, superannuation, health, and taxation systems controlled by the federal government. Though we pay for our share, we don’t receive our share. And our schools are still reluctant to teach kids that gay sexuality is ok, and many teachers turn a blind eye to victimisation and bashing.

I have once experienced being the target of gay-hate violence. Half a dozen thugs with baseball bats attacked me just a few years ago here in Canberra. If I weren’t both lucky and prepared to stand up for myself, I would have died that night. Some of my friends have been less fortunate.

The continued existence of this sort of anti-gay violence is due in great measure to those who seek to impose on the entire community their narrow view of what is “moral”, and who seek to use gays as scapegoats to blame for society’s ills. I recall all too well the attempt by some religious groups in the 1980s to blame gay men for HIV/AIDS and to cynically use HIV as a weapon to try to drive society back into the sectarianism and hypocrisy that characterised the 1950s.

Certain religious groups still have no hesitation in promoting the most appalling and dishonest anti-gay propaganda in the name of “family values”. But as I recall, the Nazis also claimed to be committed to family values, and were equally intolerant of freedom of choice. Tens of thousands of homosexual men were interned by the Nazis, and many of them perished in concentration camps. It was not the first time we had been used as scapegoats by political or religious fanatics, nor was it the last time.

I consider myself to be a highly moral and principled person, a quality I attribute to the nurture of my late parents. My family has always been absolutely supportive of me and my partner, and my siblings often travel to stay with us at Christmas or new year.

I have made (and am continuing to make) a significant contribution to the society in which I live. Those with whom I have worked have always respected my contribution, and have had no difficulty with the fact that I am an openly gay man. Likewise, those with whom I am involved in amateur sport at ACT and national levels respect me for my contribution and my honesty, not because I am or am not gay.

I am proud to be an Australian, and thankful that over the past 30-40 years our country has gradually become a fairly tolerant and welcoming place for most people.

But every step of the way over the past thirty-forty years, attempts to remove the punitive and discriminatory laws that made me and my partner second-class citizens have been met by ideological bigots claiming that to remove such discrimination would somehow damage the rights of those who suffered no such ill-treatment. What poppycock.

I’m truly sick of the whingeing and whining that comes from the religious conservatives every time someone obstructs a little of their pathological crusade against gay men.

The proposed ACT legislation does not equate civil unions with marriage. To complain, as the Attorney General has done, that it “implies” equality shows just how much influence religious bigots have over a supposedly secular federal government.

Living in Canberra I am also sick of the disadvantage every ACT resident endures. Namely, having substantially less representation in federal parliament than Tasmania which has hardly more population than we do, and having our legislation and planning decisions threatened or overturned by federal government bully-boys.

Whether on this issue or any other, it is intolerable that Australian citizens in the two territories do not have true self-determination in the manner that people in the states do. Those of you who come from states might care to think how you would feel if the federal parliament could over-ride your state’s laws.

My partner and I still have our military service medals. Sometimes I wonder if we should send them back, since our contribution to the military service of this country is apparently not considered sufficiently worthy to accord us the entitlements that most people take for granted.

If the federal government decides to go out on the limb of extremist intervention, I will protest in every way I can. But whether or not protests succeed, the fact is that the proposed meddling in ACT legislation is driven by conservative religious ideology dressed up in the false guise of “family values”. To support such intervention would be a dishonest and obscene attack on the secular constitution our nation adopted in 1901.

I hope that you and most other members of the federal parliaments will reject any attempt to interfere with the ACT Government’s legislation on same-sex unions, whether directly or indirectly.

I know that this issue is not simply a party matter. There is a range of views in political parties. My experience suggests that most people with a negative attitude to gay issues have not met and dealt with openly gay men or women. It’s easier to demonise something that you’ve always avoided.

It’s high time the federal parliament stopped avoiding the issue of its discriminatory laws. We are all citizens and there should not be one law for my brother and a different law for me.

I am happy to take unpaid leave from my job to come and see any MPs or Senators at Parliament House, so that they can meet in person one of the many people who has had to fight tooth-and-nail all his life to get some measure of fairness from governments. Someone who for most of his life was arbitrarily classified as a criminal, denied the protection of the law, and refused the entitlements that my siblings are given automatically.

           …         …         …

I sincerely wish you and your family the same peace and security that I seek to have accorded to myself and my partner.

They are the words of a gentleman in the ACT who is calling on senators here today to vote to remove discrimination. We heard—from the government minister who spoke on this legislation, the Leader of the Government in the Senate—that the government wants to remove discrimination. Today is the opportunity for the federal government to vote to remove discrimination and allow couples—like this man and the many other people from whom I and, I am sure, other members of parliament have received letters—to have their relationships openly recognised in the parliament and before the law.

This is about allowing people to have their relationships recognised in all aspects of life. There was a letter to a newspaper last week about a man who had taken his partner with him when he went to hospital for surgery that he needed, but the hospital did not recognise him as the next of kin. The surgeons refused to carry out the operation and they had to wait there until they were able to get the man’s estranged elderly father to give permission before the operation could go ahead.

Today is the opportunity for people to vote to remove that form of discrimination. I have attended weddings—gay, illegal weddings—that have been beautiful and loving ceremonies of the commitment between two people. We have the opportunity to have those relationships recognised before the law. It is an opportunity to say to the children of gay and lesbian parents that you see their family as a genuine family. I was walking down Oxford Street in Sydney as part of a rally on this issue with a group of children, some of whom are the children of my friends in same-sex relationships. There were hundreds of people marching down the street and, as we were walking along, everyone was singing the song: ‘Going to the chapel and we’re gonna get married.’ That was what they wanted because they wanted their parents to be able to do that so that they could be recognised as a genuine family.

By not recognising the rights of those children to be part of a genuine family where both of their parents are recognised as legitimate parents before the law we are discriminating against those children, and we should not do so. We should allow these families to unite themselves before the law and to be recognised before the law, whether it is at hospital or filling in forms at the department of housing or the Department of Veterans’ Affairs. We need to allow this discrimination to be removed, and today is the opportunity for us to do that.

Today is also the opportunity to remove the discrimination for people who live in the ACT or in the Northern Territory who do not have their rights heard in the same way as other Australian citizens in the states. That is the opportunity that we have here today, and I commend this disallowance motion to the Senate. I appeal to all senators to vote today to remove discrimination; to vote today for the rights of territorians; and to vote today for all Australians to have their relationships recognised before the law.

Question put:

That the motion (by Senators Ludwig, Stott Despoja and Nettle) be agreed to.