Senate debates

Thursday, 20 September 2012


Marriage Amendment Bill (No. 2) 2012; Second Reading

3:53 pm

Photo of Trish CrossinTrish Crossin (NT, Australian Labor Party) Share this | | Hansard source

I rise to sum up the debate on the Marriage Amendment Bill (No. 2) 2012. I understand that I am the last speaker in what I think has been an important week for this country, both here and in the House of Representatives. I want to start by thanking the Senate for allowing us the time to undertake this debate. It is not a government piece of legislation, but unusually it is a piece of legislation that has been moved by four members of a government. I also want to place on record my acknowledgement of those who have contributed to this debate and the personal stories we have heard. The wide-ranging views of people both for and against this legislation have, I think, enlightened our community in one way or the other around this country as to what people in this parliament are thinking.

I want to start by putting on record my personal situation. I, like many other people in this country, have either family members or very close friends who identify as gay or lesbian. If they are family members, of course I have known them all my life. The friends I am talking about I have known for the best part of nearly 40 years. I am a heterosexual woman and I have been married for 30 years.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | | Hansard source

Well done.

Photo of Trish CrossinTrish Crossin (NT, Australian Labor Party) Share this | | Hansard source

Senator Wong, I might take that interjection. The man in my life I met when I was only 14 years old. I ended up marrying this person because he was my best friend, because he was the person I knew I wanted to spend the rest of my life with. I fundamentally believe in the institution of marriage. I go to a lot of wedding ceremonies; I am going to one at the end of October—another family wedding. It will be a marriage. It is between my brother-in-law and his female partner. But for me, I guess in the words of Nicola Roxon, the only thing that defines his marriage as anything different to the relationship my sister-in-law has is that one piece of paper, and I think that is fundamentally unfair.

Marriage is a secular institution. Marriage equality for same-sex couples is not an inherently religious issue. I think that marriage as an institution stands in this country whether or not you are religious, no matter what your race is, and I think the day has come when we should say no matter what your sexuality is. It does not have an inherent procreation dimension. Some say that same-sex relationships are not designed to have children. I would say some heterosexual relationships are designed not to have children. I do not believe that people marry these days simply and solely to have children, and if that is the reason you do it then I think it is wrong. You marry someone these days because you love them and because you want to spend the rest of your life with them.

The Marriage Act says that marriage is between a man and a woman. We are simply trying to say that it should now be between two people; you enter it voluntarily, you are not forced to do it; you want it because you want to do it; and you commit to it for the rest of your life. There are religious ceremonies, and there are other secular ceremonies that go to the words of 'for better or for worse'—and let me tell you, after 30 years there are some better times and there are some much worse times, apart from the fact that I am married to a Carlton supporter, but you have to live and let live! In sickness and in health: there are certainly those times in our lives, but thankfully we have not reached the stage between the two of us where either of us has been fundamentally and chronically ill. I am not sure I am going to go to the honour and obey, as some people opposite me think I ought to. I have never said that and I never will say that because I believe a partnership between two people should be equal.

But what about those who say that marriage has to be between a man and a woman because it is about having children? I say: what about those couples who are infertile? I say: what about those couples who decide to get married well into the end-time of their life when they are older? I say: what about those couples who never intend to have children but still want to be married? And I say: but what about the marriage where children come into it and either one of the partners is alcoholic or is a drug addict? At the end of the day, that is not really the kind of home and relationship you want any child to grow up in.

I want to touch today on the fact that I have been brought up a Catholic. I come from a profoundly religious Catholic background. In the Catholic Church the doctrine tells us that marriage is the only place for legitimate sexual activity. In fact, if you were going to be a profound Catholic and practice that today, you would not have sex before marriage, but we know that does not happen. You would be opposed to IVF, but we know that does not happen either. You would certainly not be taking the contraceptive pill, and we certainly know that does not happen amongst Catholics. We certainly know that if you are profoundly Catholic and religious then you believe marriage is the only institution and must be the only institution that has the unique capacity to generate children, but we know that is not true today either. But none of these views is held by the vast majority of citizens in this country anymore. We have all moved on. We support IVF. We freely get access to the contraceptive pill and we know that there are plenty of people that have sex well before marriage and we know that there are plenty of people that are not married that have children. The one last remaining hurdle to achieving to equality in this country is the actual fact of people being able to marry, about the right of people to get married despite their sexuality and because they love each other.

The marriage vows under the act themselves make no mention of having children or procreation. It would seem that the vast majority of faithful Catholics these days have accepted that it is time to move on. Marriage has changed over time. The Bible in fact mentions polygamous marriage. The Bible talks about the purchase of wives. Through history we know that wives were purchased for marriage. Through history we know that widows in fact could become the wife of their brother-in-law. We have no evidence of Christian marriage rights until the ninth century. These have changed over time from a right of property transaction—that is, you would marry a woman because of the relationship with the property and the ownership of that woman—to one of mutual affection. The Christian theology of marriage is not fixed and nor is it universally agreed. So what am I saying? I am saying that over time the definition of marriage and the way in which marriage has been treated has moved and evolved. We have now come to another point in time where it needs to evolve again.

Andrew Sullivan, who is a British conservative Catholic who is also gay, writes very convincingly that 'marriage is an institution which should be upheld, not undermined.' The Marriage Act discriminates against same-sex couples by prohibiting them access to marriage. I do want to remind people again of the words of the British Prime Minister who says that he is in favour of same-sex couples getting married because he is a Conservative. I think if you believe in the fundamental institution of marriage, then let's open that up. Let's make it attainable to all those people who want to enter into that binding and loving relationship. I say if other people want to join me and be happily married for 30 years, well, then let's welcome and to do that; let's encourage them to do that.

The Universal Declaration of Rights in article 16 says:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Article 2(1) of the International Covenant on Civil and Political Rights states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 23(1) says:

The family is natural and fundamental group unit of society—

That is true.

23(2) The right of men and women of marriageable age to marry and to found a family shall be recognised.

Not necessarily a man to a woman. You will notice the words do not say that. The right of men and the right of women. Perhaps it is time to interpret that as being to each other.

Article 26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. …

The language of article 16 and of article 23 is sufficiently broad, I believe, to encompass the right to marry for same-sex couples.

Australian Lawyers for Human Rights contended that the meaning of the treaty's terms is not static and must be interpreted with the framework of the legal system prevailing at the time of interpretation. A textual analysis of the covenants might suggest that article 23 should be read as only allowing a heterosexual union. The text on the face of it does not demand, though, such a restrictive interpretation and could be read in the light of developments in the law of the state and what may evolve with law during time.

In his submission to my Senate Legal and Constitutional Committee's inquiry, the Hon. Michael Kirby noted that increasingly such court decisions 'have upheld the principle of marriage equality for opposite sex and same-sex couples.' The Castan Centre for Human Rights Law argued that, due to changing societal attitudes to same-sex marriage, the right to marry in article 23 of the ICCPR would come to be interpreted 'through the lens' of article 26—the right against discrimination.

Opponents of marriage equality also refer to cases of the European Court of Human Rights in support of the argument that there is no right at international law for same-sex couples to marry. For example, some note the case of Schalk and Kopf v Austria, a European Court of Human Rights decision in 2010 which clarified that the European Convention of Human Rights does not oblige member states to legislate for, or legally recognise, marriages between same-sex couples. But the important point to note from the decision in Schalk is that there is also no impediment to states moving to recognise that marriage equality.

The introduction of legal recognition of same-sex marriage in many parts of Europe and the United States has prompted doctors and psychologists to investigate how same-sex marriage and issues around same-sex marriage impact on the health and wellbeing of same-sex-attracted people. These were raised in many of the submissions I heard this week. But what are the facts about same-sex marriage and issues that arise around marriage equality that are based on rigorous, scientific investigation in the health disciplines? Research has been conducted by at least seven eminent doctors and psychologists—research that they have titled, All you need to know about same-sex marriage. We have heard a lot of contributions this week from people who think they know what the outcome is—who have tried to second-guess what that is. But what does this research actually say? This research actually says that married couples are happier and have better mental health outcomes than non-married people on average. They are more committed to making their relationships work. They attract more social support and are more happy and satisfied with their relationships. These benefits are unique to a happy marriage. Cohabiting couples do not show the same positive health outcomes.

Discrimination, whether legal or interpersonal, increases psychological disorders and physical infirmity for same-sex-attracted people. Denial of the right to marry is linked to financial uncertainty, psychological distress and chronic stress. Same-sex couples who were married following the legalisation of same-sex marriage in the US and Europe report improvements in their personal and relationship health and wellbeing, and increased social acceptance and support.

Children raised from birth by same-sex couples have the same psychological, social, and academic outcomes as children raised from birth by opposite-sex couples. As with the children of heterosexual parents, the majority of children of same-sex-attracted parents grow up to be heterosexual. Marriage of same-sex parents has been shown to improve the health and wellbeing of their children and actually gives the family legal protection. Civil unions and domestic partnerships are devalued compared to marriage by both same-sex-attracted and opposite-sex-attracted people. It has been shown that civil unions for same-sex-attracted couples do not confer the same health benefits that marriage does.

I stand here this afternoon to sum up the argument for those people who want to see change to the Marriage Act, who actually believe that now the majority of Australians actually think it is time to change. It is time to recognise that these people are wonderful people, they are normal. They are people we live with and we work with. They are people we love as members of our family and as our friends. It is time that we opened the door to the sacredness and the institution of marriage to these people.

I will conclude my speech with three quotes. Justin Koonin, a wonderful young man who presented to us in Sydney as part of our inquiry, from the NSW Gay and Lesbian Rights Lobby had this to say:

We are here today asking for recognition of the depth of our relationships and the dignity of our sexuality.

Shelley Argent—who I think is a fabulous trooper for this cause; no wonder she has an OAM—represented Parents and Friends of Lesbians and Gays. If you truly listen to Shelley, she makes a very cogent argument about why it is time this country needs to grasp this nettle of change. She says:

As a parent, it is quite heartbreaking when I see that my one son has all the advantages and he has not done anything special to have those advantages, and yet my gay son ... the one with the relationship is seen as second rate.

Finally, I will quote from an email I received from Alana:

Thank you so much for sponsoring the bill on marriage equality. It is a proud and historic day for the Territory and I hope we will be among one of the first states and Territories of Australia to recognise the dignity and equality in love. I deeply applaud your position on this matter and the support you have shown for the LGBTI community.

From the bottom of my heart to you and your colleagues who support this vital and important cause to take Australia into a future of equal rights and equal love, I THANK YOU.

Photo of John HoggJohn Hogg (President) Share this | | Hansard source

The question is that the bill now be read a second time.

The Senate divided. [16:15]

(The President—Senator Hogg)