Senate debates

Thursday, 4 February 2016


Recognition of Foreign Marriages Bill 2014; Second Reading

9:35 am

Photo of Robert SimmsRobert Simms (SA, Australian Greens) Share this | | Hansard source

The bill I rise to speak on today, the Recognition of Foreign Marriages Bill, will end a cruel and draconian feature of Australian law by providing recognition across Australia for same-sex marriages performed overseas. We currently have a situation where overseas same-sex marriages are recognised in New South Wales, Queensland, Victoria and Tasmania, but not in other states. They are not recognised in my home state of South Australia. It lags well behind, as does the state of Western Australia and the territories. We have to remedy this complex web of relationship laws so that married couples receive the acknowledgement that they deserve. Recognition should not stop at state borders. We need to have a uniform approach to these issues and these questions of human rights.

The consequences of this parliament failing to show leadership on this issue are heartbreaking and they became all too clear with the distressing case of Marco Bulmer-Rizzi in Adelaide. It was appalling that Mr Bulmer-Rizzi was not recognised as next of kin following the death of his husband in South Australia last month. He and his husband, David, were on their honeymoon and visiting friends in Adelaide. I am deeply concerned that a grieving husband was treated in this way and had to go through the pain of reading 'never married' on his husband's death certificate. How traumatising that decisions concerning his husband's death had to be directed to his father-in-law. In the Australian government's eyes he was not recognised, despite having legitimately married his husband overseas.

His father-in-law described the degrading and humiliating situation to BuzzFeed, saying, 'It demeaned my son's memory and denied their relationship. It has cast them as second-class citizens. No-one should ever have to go through what we have gone through. We're at the bottom and somebody has dug us a deeper pit'—all of this, despite marrying overseas in a legal wedding and despite the father-in-law of the widow declaring that Marco was the person who should have been able to make these kinds of decisions.

Marco Bulmer-Rizzi told 7.30 that the issuing of this death certificate was the most humiliating moment of his life. Imagine the trauma of losing your husband, your partner in life, and then having that trauma compounded by being treated in such a cruel and degrading way. Had Marco Bulmer-Rizzi's husband died just 400 kilometres east, in New South Wales, a state that does recognise overseas same-sex marriage, then he would not have been put through this experience. So the cruel reality of these laws has been exposed by this tragic incident, and the inconsistency between our states on this matter has been exposed. It is clear that there is a need for national action.

I have to say I am deeply embarrassed and ashamed that, as a senator for South Australia, my home state has been lagging so far behind on this issue. As the first state in this country to decriminalise homosexuality 40 years ago last year, South Australia has been a leader in the space of rights for gay and lesbian people, but it is a sad indictment of my home state that we are one of the last states to end this form of discrimination.

There was a huge reaction to this story in South Australia in early January. I do want to acknowledge that the Premier of South Australia, Mr Weatherill, has apologised and announced that he intends to take legislative action on this matter in the state parliament, and obviously we in the Greens welcome that development. However, this case highlights why we need national laws in this area. The fact that we had to wait for an appalling human tragedy for the state government to take action—a government that has been in power for more than 14 years—highlights why we need uniform laws at a national level. Human rights should never stop at state borders. Human rights do not stop at state borders, and we need to have some uniform legislation in place to deal with this issue. By supporting this bill, we can ensure that same-sex marriages performed overseas are recognised right across our country. There is no ambiguity. Whether you are in Western Australia, whether you are in South Australia, whether you are in the Northern Territory, you should have the same rights as other people visiting our nation, and our bill will achieve that.

Currently there are 14 countries around the world, along with a series of state jurisdictions in a further six countries, who recognise marriage equality—and the numbers are building. How must citizens of these countries feel when they visit Australia and know that they could be exposed to the appalling treatment that faced Mr Marco Bulmer-Rizzi and his family? What does that say about our country and the way that we promote ourselves on the international stage, when people coming to our country could be exposed to that kind of trauma?

I want to point out that this bill will also impact on Australians who have same-sex marriages performed overseas. It is an absurd reality that the Australian government not only deny the rights of same-sex couples to marry on Australian soil but also deny their rights to marry overseas. It is not enough for the Australian government to deny the rights of Australians on Australian soil; they want to deny their rights when they are overseas too. What an appalling indictment of our country. We need to do all that we can to ensure that no-one experiences the humiliation that Mr Bulmer-Rizzi has experienced, and this law would be a powerful step in that direction. It would be a powerful step in favour of equality.

We must also remember that this kind of humiliation and degradation is experienced by Australian couples on Australian soil, who also want their love and relationships acknowledged by their home country. While this bill would address marriages performed overseas, we need to change the law to recognise same-sex marriage here in Australia. The Greens have been a leading force in that debate. We continue to fight for the rights of all Australians to marry the person we love.

We know from the polls throughout this country—there have been a series of polls coming out on this issue over many years—that marriage equality is supported by a majority of Australians, and support is growing day by day. Despite this huge groundswell of support, the government continues to try to defer the issue by going to a costly and divisive and pointless plebiscite, which would cost taxpayers over $160 million a year. I saw in the news today that the Attorney-General is looking into developing legislation on this matter, despite the huge public outcry on this plebiscite. What a blatant waste of taxpayers' money. What a flagrant disregard for taxpayers' money, particularly when people in the Liberal and National parties have come out and said that they will not support a decision of a plebiscite that they do not agree with. We are being sold this plebiscite lemon and told that it is the only way we are going to get this reform over the line, but the very people it has been set up to appease say they will not abide by the decision anyway; they will not even follow the outcome. They will turn their noses up at the Australian people and flout a decision of a plebiscite. So, really, the whole thing is a pointless and expensive sham.

Just a few days ago, a poll came out that looked at the majority of voters in three rural National Party held seats. It is clear that they reject the idea of a plebiscite. Almost two-thirds of those voters express that it is a poor or very poor use of taxpayers' money—and, obviously, we agree. These results clearly show that Australians want the parliament to act on marriage equality, and they want the government to ditch what would be an incredibly expensive and pointless plebiscite.

We are at a unique point in this debate on marriage equality. It is the first time we have been at this point in this debate, where we have the numbers in the federal parliament—people who support marriage equality—but we also have the leaders of three major political parties in this parliament supporting marriage equality. We know that Mr Turnbull supports marriage equality, we know that Mr Shorten supports marriage equality, and of course we know that the Greens leader, Senator Richard Di Natale, supports marriage equality and that the Greens have been leading this debate; yet somehow we as a parliament have not been able to get this done. The numbers are there; what we need is political leadership from the Prime Minister. He needs to step in and stand up to the conservative right wing of his party.

We have heard members of the Liberal and National parties saying they will ignore the outcome of any plebiscite. They have said that they will turn their noses up at that. I want to say to members of all sides of this chamber that, on this bill on recognising the rights of same-sex couples married overseas, they should vote according to their conscience. They should vote for what they know to be right. If it is okay for conservative members of this parliament to say that they are going to vote according to their conscience to reject marriage equality, then it should be okay for those members of this parliament who support the reform of marriage equality to vote according to their conscience, and Mr Turnbull should provide that right to members of this parliament.

This legislation would amend the definition of marriage in the Marriage Act to recognise same-sex marriages performed in a foreign country. It is a step in the right direction on this long road for equality. It would provide certainty to gay and lesbian people who want to come and visit our country. People in same-sex relationships who are married deserve that certainty when they travel. They want to know that when they go to a country they are not going to have their human rights trampled over, they are not going to be humiliated and have their love degraded in the way that Mr Marco Bulmer-Rizzi was treated in Adelaide earlier this year. People want to know that when they travel overseas their rights are protected, and this bill will provide that certainty to people who are seeking to come to Australia.

This legislation would also recognise same-sex marriages of Australian couples that have been carried out overseas. It is an appalling reality of this debate—and it shows the lengths that the Australian government will go to in order to deny the rights of same-sex couples—that the Australian government not only denies people the right to marry here in Australia but also denies them the right to marry overseas. They say, 'When you come back to Australia your marriage is null and void.' What an appalling attack on the rights of gay and lesbian people in our country. It is time for some leadership on this issue.

When the Labor Party were in government and Senator Hanson-Young put this issue on the agenda at that time, there was not support for this reform. But I do hope that members of this parliament will think carefully about this as an important step in the campaign for marriage equality and that they will vote according to their conscience. It is critically important that they do that.

Why is it okay for members of the Liberal and National parties to say, 'Irrespective of the outcome of any decision, we will turn our noses up and we will flout the views of the Australian people', but those who actually support getting something done on marriage equality are not given the right to vote according to their conscience. There is a really serious anomaly here and it needs to be addressed.

I also want to make the point that it is time for Mr Turnbull to show some leadership on this issue when it comes to the rights of gay and lesbian people. I spoke in the chamber the other night about Mr Turnbull's failure to stand up to Tony Abbott when he went overseas and spoke to a right-wing lunatic fringe group. Mr Turnbull sat back and said, 'You're free to go and meet with whomever you want, that's fine', and failed to show any leadership. He failed to bring Mr Abbott to attention for his inappropriate comments and inappropriate actions. This strategy of appeasing Mr Abbott is not going to work; it is not going to gel with the Australian people. Australians are looking for a change in direction from this government—not the same old stale policies. Mr Turnbull is great with the sizzle but where is the sausage? Where is the meat on the bones in terms of offering a different direction for our country? There is an opportunity, with this bill before the parliament, for the government to do things differently and for the parliament to provide recognition of same-sex marriages performed overseas. It is important issue.

We saw earlier this year, with the appalling treatment of Mr Bulmer-Rizzi in Adelaide, the terrible human consequences, the human implications, of what can happen when there is not something like this in place. I urge this parliament to support this bill.

9:51 am

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

I too rise to address the Recognition of Foreign Marriages Bill 2014. I would like to comment on three aspects of the topic at hand. The first is around the actual issue of same-sex marriage, which is obviously at the core of what the Greens are hoping to achieve. The second is around the issue at hand that Senator Simms spoke about, which is recognition and particularly the human rights of same-sex couples. He referred to the case in South Australia which I will come back to a bit later, and that in itself is an issue that we do need to cover. Thirdly, from a technical perspective, I want to comment on some issues with the bill, particularly around some of the conclusions that the Legal and Constitutional Affairs Legislation Committee came to when they looked at this bill in 2014.

To come to the first issue, it will be no surprise to people who have heard me speak in this place before, and indeed in my former role as a member of the other place, to hear that I do not support same-sex marriage. I make that statement quite openly. I think it is important that as a nation, as we have this debate, there is recognition on both sides of the debate that people of goodwill can hold differing views on this topic. We should be able to have the discussion without name-calling, without putting people down and without labelling them. I would ask Senator Simms, when he refers to the group he calls right-wing lunatics and a fringe group, to consider that there are many people in mainstream Australia of good character and goodwill who share the views of people who support marriage between a man and a woman. If we are going to have a respectful debate in this country that has to flow both ways. I am sure that Senator Simms would not appreciate people who hold the same views that I do calling him or others who support same-sex marriage lunatics, fringe groups or other things. I would ask that that same courtesy be extended so that both sides of the debate can put forward their perspective, their point of view and in some cases their beliefs on this topic, so that as a nation we can have an adult and mature discussion, reaching a point in what is a very successful liberal, plural, secular democracy. That plural part means that there are people with different views. Their views have to be respected and they have to be given the right to put forward those views without fear of name-calling or indeed, as we have seen in Tasmania, being hauled before tribunals for putting forward their point of view.

On the second issue, the very sad situation of David Bulmer-Rizzi was raised by Senator Simms. I share his concern for the very human trauma and cost that that situation revealed here in Australia. But, as with many things, we need to look at what the root cause was of the issue and the pain that was caused—other than the tragic accident and death of David, obviously. What was it that caused Marco the pain? In that case it was the fact that he was not able to act as the next of kin and make appropriate decisions about care in the medical sense or, indeed, actions after David's death. I do not believe that this bill directly addresses the root cause of that problem.

As Senator Simms correctly identified, on the east coast state legislation has made it possible for somebody in Marco's situation to make those decisions. The remedy for the kinds of problems that he faced, being able to make those decisions, is actually found in state legislation. Senator Simms is right that South Australia lags behind in that regard in a number of areas. We have seen bills come through that attempt to find a way forward in this sometimes quite complex situation of domestic relationships. In fact, in 2006 a domestic partners bill was introduced in South Australia, which recognises that in addition to married couples there are de facto relationships and, in some cases, there are relationships that go beyond just an interdependent relationship, where two people who may not be the classic definition of partners, particularly in a sexual sense, but in a relational sense, can have the need for the same kinds of supports, provisions and legal rights as other people. So we see in state law attempts being made in South Australia to bring forward legislation that increasingly recognises and gets rid of discrimination in relation to various kinds of relationships.

We also see changes in federal law that go to the issue of relationships. Whether we are talking about things like Centrelink or the Family Court of Australia and family law, we see that in law the federal government has already taken steps to remove discrimination in relation to same-sex couples. From March 2009, for example, parties who are in an eligible de facto relationship can apply to the federal Family Court if that relationship has broken down. Before the court can determine that, you need to make sure that that relationship meets four criteria. One of those is that the relationship was registered under a prescribed law of a state or territory. South Australia is one of the places where they do not currently have the ability to register, but they can register the relationship through a domestic partnership agreement.

The point I am bringing out here is that this has been presented as discrimination against same-sex couples. But if a heterosexual couple who have not registered their de facto relationship wanted the remedies available through the Federal Court, they would not be eligible for that if they had not met those four criteria, which include registering the relationship. That is dependent in part on a state law. So what we see is that the remedy for the situation that was highlighted in the case of David Bulmer-Rizzi and his partner, Marco, is that state law actually provides the ability to recognise the relationship and to enable those state authorities to engage—in this case it would have been with Marco—so that he could have made the appropriate decisions as a recognised next of kin. I think it is important that, if we as legislators identify what is seen as an injustice in our community, the remedy that is put forward is by the appropriate level of government, so that the laws address the issue rather than creating a broader concern or change within Australia's legislated environment.

That is when I come to the third part, looking at the specific issues with this bill. Australia is a sovereign nation. We have our own laws, and whether or not you agree with the laws and support changes to the laws, they are the laws of Australia. They are the laws that all of us, regardless of our status and position, are required to follow.

Currently, Australian law is clear that marriage is between a man and a woman. It does not recognise other arrangements as valid marriages, regardless of whether they were celebrated in Australia or overseas. Similarly, the law does not recognise marriages of people from overseas, who are already in a valid marriage, where they were entered into without the consent of both partners, or, for example, marriages involving underage individuals. There are a number of aspects of marriages which may be quite valid overseas but which may not be recognised here in Australia. If we start making changes against our sovereign law in the interests of one group, then why not the other groups?

We have, as I said, those three clear areas in our law—for example, underage individuals. I think Senator Simms mentioned some 14 countries overseas that support same-sex marriage. There are many, many more countries that allow underage marriage—child marriage. If we see populations within Australia coming from those countries wishing to have those marriages recognised—and if we are going to be consistent in giving up our sovereign laws—then we need to start recognising things like child marriage, which clearly, I think, Australians would reject and say is not consistent with our values. I do not believe allowing overseas law to override Australian law is a good principle for us to be adopting, no matter how much you passionately value the cause. In this case it is same-sex marriage. Once you give up that principle of maintaining our sovereign laws and surrendering them to the values of others, then there are areas that I think would be quite damaging for Australian society.

As Mr Marco Bulmer-Rizzi indicated himself, Australia has its own process to go through with respect to same-sex marriage. I think in that statement he is recognising that we have sovereignty here. We have a requirement that, if we were to change that aspect of our law, a process through the parliament, a plebiscite, or engaging the community is the way we have chosen to do that, and that will result in a decision one way or the other. But that will be a sovereign decision, as opposed to surrendering our laws to those from overseas. If the Australian parliament were to remove the requirement that only a man and a woman can be validly married in Australia, then amendments would also be necessary to recognise foreign same-sex marriages. Clearly, the government does not support that.

The previous version of the bill was introduced in 2013, and it did not proceed. The second reading was negatived on 20 June 2013. Senator Simms has raised the point about people exercising their judgement and respecting the decisions of the Australian people or the parliament, so I would encourage him to consider that, in the history of this topic, there have been a number of times when bills have come before the parliament and have not been supported. If he believes that people should just follow polls or the decisions of previous votes in the parliament, he should perhaps consider the fact that the parliament has voted on these issues before and has not supported them. If he wishes to continue his advocacy, he needs to accept the fact that those who do not agree with him will likewise continue their advocacy against the bill.

The Senate Legal and Constitutional Affairs Legislation Committee tabled a report on 25 September 2014 on this bill highlighting a number of concerns which had been raised by various submitters, including the Attorney-General's Department. Some of the issues that arise with the bill include that there would be the potential for differential treatment of same-sex marriages solemnised overseas, in contrast to same-sex partnerships which are recognised by some states and territories here in Australia. Likewise, same-sex marriages which can be conducted in foreign consulates in Australia and in overseas countries where same-sex marriage is not legal would not be recognised as valid marriages in Australia. That would make what is already a complex situation, in terms of the types of relationships, who recognises them and what the impact is in law, even more complex. There may be issues in how the amendments in the bill would apply to same-sex marriages that have been solemnised overseas, and it would need to be amended to ensure that the other current limitations on the recognition of foreign marriages in section 88D—that is, going to issues such as minimum age, prohibited relationships and consent—are preserved in relation to foreign same-sex marriages.

The passage of the bill would, by its nature, create some considerable inconsistency with the current definition of marriage. It would mean that a same-sex couple could not get married in Australia based on the current definition of marriage under the act; however, they could get married overseas and have the marriage legally recognised in Australia under amended section 88EA. Again, when it comes to sovereignty, if we as a nation have said we do not support same-sex marriage—and at the moment that is the status quo; that is the law and until it is amended that remains law—why should we vote to put in place a complex system where Australians can bypass that law by going overseas and then have us, instead, recognise the validity of somebody else's law to bring that relationship back? If the Australian people want that change, then they will support a change to the law here in Australia. We should not be giving up that sovereign aspect of our law-making by, instead, just accepting the laws from another country. It would, indeed, be seen as a means to circumvent, or create a loophole, in Australian laws, encouraging same-sex couples to travel overseas rather than be married here.

In conclusion, I clearly will not be supporting the motion. As I said, there are three elements to my position. The first is the issue of same-sex marriage, which I am on the record as not supporting. I just reiterate that Australians of goodwill and good character hold opposing positions on this and neither side should be shouted down or prevented from putting forward their point of view in a respectful manner.

Secondly, the issue that has led to Senator Simms and others very passionately advocating their position goes to the tragedy that occurred in South Australia several weeks ago. I have made the point that the remedy to that is, in fact, found in state legislation, not in federal legislation. To remove that injustice, the South Australian government needs to bring forward legislation to mirror what is allowed on the east coast of Australia, where somebody in that situation can make those decisions on behalf of a critically ill person.

Thirdly, there are the issues with the bill itself. As highlighted by the Senate Legal and Constitutional Affairs Legislation Committee, which, in 2014, considered this bill and recommended that it not be passed, there are issues or complications with the bill that I think mean it would not be wise for the parliament to pass it. As stated, I will not be supporting the bill.

10:08 am

Photo of Claire MooreClaire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | | Hansard source

In today's discussion on the Recognition of Foreign Marriages Bill 2014, we are particularly looking at the issue of the recognition of foreign marriages for same-sex couples. We know that, as Senator Fawcett pointed out, a Senate legislation committee considered the previous form of this bill in 2014. My friend Senator Carol Brown was on that committee and will be talking about what occurred at that time.

I also want to take up the point that was made by Senator Fawcett—I always enjoy his contributions—about the rights of people to have different opinions in our debates here and also in the wider community. Something we must always hold true is that people have the right to a variety of views and the right to express them. As always—I know that Senator Fawcett and I agree on this point—having the right to express your views brings the responsibility of causing no harm or distress in the way that you express your views. It is a longstanding point that it is a 'rights and responsibilities' issue. We do have the right to express our views, and I think one of the joys of working in this place is that we have the opportunity to hear a range of views, often put forward in very dynamic fashion. But always, at the heart of it, the issue of respect must remain strong.

In no case is this more so than in discussions we have either here or in the wider community around issues of same-sex marriage. We know that the issues around same-sex marriage have been the cause of widespread discussion in our community and in this place. At times, I do not think the aspect of respect has been maintained as strongly as it should be. The issue that we are discussing this morning is around the recognition of foreign marriages for same-sex couples. These are couples who have achieved the legal status of having their marriages accepted either overseas or, more recently, if they have British citizenship, in British consulates in Australia. One of the issues that came up in the Senate inquiry was the amazing situation of people who walked into a British consulate as partners, achieved marriage status there and then walked out without their marriage status being accepted outside. It is a situation that I find difficult to understand.

Since the time that this parliament discussed this bill last year, we have had the case, which I know many people will mention in today's debate, of the situation in Adelaide, where a gentleman tragically lost his partner, his spouse, in an accident in Australia. Because of the vagaries of Australian law—and this is not the time to discuss our Constitution in full and the challenges, but also the joys, it presents—someone whose marriage has been accepted overseas does not have that right under South Australian law. It caused immense pain and concern not just for the individual—I do not think anyone can truly understand that—but also for his family, his friends and the community that gathered around him to understand exactly what the immediate effect of the current situation under law can be. It is not theoretical; it is not an academic discussion; it is about a person. It is about what it meant for a man whose partner, whose spouse, was killed in Australia to have it marked on the death certificate that they were not married.

This particular point is one that we have discussed in this place in a number of inquiries about other people whose legal status is not understood or determined effectively to cover their rights. When I heard about the case in South Australia, with the death certificate being marked as 'not married', my mind immediately turned to a range of people that we have worked with here. For example, there were people who grew up in institutions and had ineffective documentation or whose documentation was not complete, so they did not have parental status on birth certificates. Also, there were women whose children were taken from them in the adoption process, which was the subject of a Senate inquiry. One of the core issues in that inquiry was legal status, documentation and the impact of not being able to have documentation which truly reflects your status.

The issue that came to mind when I heard about the Adelaide situation related to a woman with whom I have worked for many years. She had lost her child under the horror of the adoption process in this country and was not able to have a birth certificate that acknowledged that the child was her son. After having a wonderful reconciliation with him, the young man died early. It caused an amazing amount of grief to that woman when her son's death certificate did not reflect that she was his mother. My heart breaks for her situation, which, unfortunately, is not uncommon. When I heard about the Adelaide situation around documentation, the pain was so immense, and I understood that this is the kind of practical impact of the law as it stands now. That couple was formally married. They did not have a civil partnership; they did not have a personal commitment to each other—though I am sure they did. But it was more than that: they were married under English law. They came to Australia for their honeymoon—which is ironic in itself in terms of what happened.

Because marriages between same-sex partners conducted overseas—or now in the British High Commission or consul—are not generally recognised across Australia, it is left to a state jurisdiction, and in this case the vagaries broke in and on the death certificate it said 'Not formally married'. I am going to be careful with my language here, but it makes it even more ridiculous that, as Senator Simms pointed out, if that accident had occurred very close to where it did, across a state border—a state border that is completely unable to be seen; where you take a step across a line, which I do not think is even marked on the map—the law changes in this case, which is so difficult, as in many other cases. The difference between the debate that we had here around the previous act and the debate that we are having today is that we have this clear evidence of the case in Adelaide that someone has been brave enough to tell people about and to have their personal pain exposed to the world. We now have a circumstance where we can say, 'This is what this law means and this is the pain that it causes.'

Other people in the debate today will work through the legalities and the way that the law works and talk about the number of countries in a similar situation to ours, where at this point in time we have not taken a national decision to accept the legality of what I call marriage equality but other people call same-sex marriage. That is a fact: we have not had the process in our country to accept that. But the legislation before us now is about whether we accept the marriage status of people who have legal marriages elsewhere. A number of other countries—and they are all listed in the Senate report—are in exactly the same situation. In Israel, for instance—and I take that as a place that many people in Australia visit—there is no national agreement on same-sex marriage. But, if you have a marriage certificate from another country, they will accept that in that country and they will never have the situation of someone's rights as a partner being questioned or being disallowed. So there is a precedent in other countries which have the same lack of recognition for the concept of marriage equality. So we are not asking for something which is peculiar.

The wider discussion about whether we as a nation move to accept same-sex marriage as a right for all citizens is another debate. But in the Senate inquiry—and also, I would expect, in some of the contributions today in the discussion around recognition of foreign marriage—the core debate was and will be about whether or not people personally accept same-sex marriage. Reading the report and the evidence from the Senate inquiry, you see that it did tend to go into the wider issue of the legality of same-sex marriage, as opposed to the point of this bill, which is recognising people who have already that status elsewhere. That is an important issue, and one of the points that will come out today is the ongoing process in Australia about determining same-sex marriage in our country and the issue of the plebiscite and when and how that will occur.

We seem to have many Senate inquiries. They are so important. They are how we get our information. There was also a Senate inquiry on the issue of the plebiscite. Again, the discussion during that inquiry tended to be around whether or not people were accepting of the same-sex issue, as opposed to the particular issue of the inquiry, the plebiscite. There were pertinent questions around the cost and timing of the plebiscite, and in recent times there has been a real discussion about whether the plebiscite has any impact on people's votes. There was also discussion in the Senate inquiry about whether or not it would be binding. There is no clear rule around that, except the statements from parties and individuals about their intent.

There is a question about whether, if the way that that law is going to be addressed is through a plebiscite, it will in fact have a direct effect on what will happen in this place. On that basis, perhaps we should be looking at a plebiscite on the Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples)—with more expense and more discussion across the community—and see what comes up with a vote in this place and see whether or not the plebiscite will be binding.

For me the importance of the discussion on this issue is twofold. Of course it is about making sure that people are aware of what is happening in the overall debate around the issue of same-sex marriage. Through any of these discussions we learn about what is happening in other countries in terms of their discussions and their legislation. It is important to look at how those processes operate. We also learn more about what is happening in the community—about their awareness of the issues, about their engagement and about what their hope would be regarding what would happen in their parliament about a decision that will impact across the board.

I think it is important in our discussion on this bill that we do learn more about what happens overseas and we do learn more about people's views on the impact of making changes around recognition of same-sex marriage generally. That is an important part of the ongoing discussion. Following on from Senator Fawcett, the mode and how we conduct that discussion is very important. The more opportunity we have to genuinely exchange views and listen to views and look at the impact of any changes we make is in itself valuable. I said to someone before this debate when I was looking at that speaking list—and it is an extensive one, because there is genuine interest in this area—that I would be surprised if I heard anything new from any of the people who are contributing, because the people who want to contribute have been contributing in this place and in the community over many years in some cases. But that does not make it any less valuable. Having the chance to exchange views and to be able to put on the record how you feel is an important part of being in the Senate.

So there is the element of the wider issue of how people feel about same-sex marriage, but I draw back again to the particular bill before us. The Senate inquiry had a range of evidence before it, but one of the points I want to raise is the issue around how the bill would impact on people who are transgender. In the wider discussion that we often have about the issue about same-sex marriage and same-sex equality, the particular concerns and sensitivities around transgender can sometimes be forgotten. Also, we had a previous Senate inquiry that looked at the issues of intersex, which is another area which should be considered when we have the discussion. It was important in the Senate inquiry that we heard from people who raised particular issues of transgender in the discussion. There is even another level of complexity in understanding what the impact of legislation would be. It is absolutely essential that when we are drafting legislation we hear from people who will be impacted by any change. The Senate inquiry touched on issues around transgender, aspects of their rights in terms of what status they have in making partnerships and how decisions about marriage impact on transgender people.

Again, one of the underlying sensitivities is documentation. So often in this place when we hear about issues of identity what comes up is the formal documentation—those things that many of us take for granted: birth certificates, death certificates, certificates of status including marriage. In the transgender community, again this is an important aspect—just knowing what your identity means in the wider community. That carries on to the issues around identity on passports and identity in any process where you have to put your gender status or your marital status.

I cannot stress too strongly that the aspect of identity documentation is of critical importance. It must not be sidelined. What we saw in the case in South Australia, with the issue around acceptance of same-sex marriages in Australia, was that it really came down to the aspect of identity. What was the identity of that partnership? They were in fact married and the documentation, because of the way the law operated in South Australia, negated that. It negated their decision, negated their choice, negated who they were. So laws can be passed. The impact of laws must be understood.

Mr Acting Deputy President, you would not be surprised that I am speaking in favour of the bill, with an amendment to take into account the things that were identified in the inquiry. But absolutely the concept of accepting the right of people who have been married to have their marriages are accepted in Australia, in law and in documentation, is something that I strongly support.

I take Senator Fawcett's point that this is an issue that can be conducted state by state but, as we all know here, federal legislation overrides that. If there were standard law in our nation, just as the legislation before us would put in place, we would not have the ridiculous situation that your marriage status is determined by which state you happen to be in. You could get married in every state. Just go from state to state and see what happens. You would probably get caught out, because your documentation would be wrong and your documentation would not work. But, nonetheless, I think that we have seen now the impact of the law on people and the hurt it causes. This should be changed. It should be openly discussed. It should be legally clear and we should be able to say that, if you are married, you are married.

10:26 am

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

In rising to speak today to our bill to recognise foreign marriages, I am coming from the perspective that it is the least that we can do in this ongoing debate that we are having in Australia about legalising and allowing same-sex equal marriage. It is the least we can do. There are other countries in the world that have moved on, where Australia has not been able to so far. We have had such a debate over so many years in parliament. I know the Greens have had bills in parliament to legislate for equal marriage since Bob Brown first arrived here in the Senate, well over a decade ago.

In the time that I have been here in the parliament, 18 months, I think I have spoken on equal marriage as many times as I have spoken on any issue. So we are getting there. We know that we have the majority of the Australian community. In fact, we are told the majority of Australian parliamentarians are now in favour of equal marriage. But we are stymied. We are roadblocked. We do not seem to be able to take that step and actually celebrate marriage between same-sex attracted couples.

Our bill today, the Recognition of Foreign Marriages Bill 2014, says that the very least we can do is to recognise the marriages that have become law in other countries, where they have had the debate and they have moved forward. There are so many countries in the world now where that is the case. We have a situation where we had a change of law quite recently in Ireland, the change of law quite recently in the US. Not many years ago we had the change of legislation and the recognition of same-sex marriages in the UK and so close to home in New Zealand. Australians and Australian laws need to acknowledge that people who get married in these countries, and many others, are legally married. When they come to Australia, their marriages should be recognised.

Of course, as the speakers before me have acknowledged, including Senator Simms, who started this debate, this has all come to a head in recent times because of the tragic circumstances in South Australia with Mr Marco Bulmer-Rizzi after his husband, David, died last month. It brought to a head not just how absurd it is but that the consequences can be so harmful and so hurtful when people who have been married in other countries come to Australia and then find their marriages are not recognised.

In considering this legislation today, what we are calling upon the government to do and all members of parliament to do is this. We are saying: even if we cannot quite get to the stage, as yet, of accepting a change in Australian law to legalise equal marriage, at least have some courage to take action to legalise these foreign marriages. Having courage to do this is something that in fact will be accepted and will be celebrated by the majority of the Australian community. I think that celebration and acceptance is a reflection of—and we continue to have these debates because of—the importance of marriage in our society.

I know that is where the fundamental controversy arises, because, yes, changing to legalise equal marriage is a change. It is a change so that it is not just heterosexual couples, it is not just a man and a woman, who are able to get married. Yes, it does allow a man to marry a man, a woman to marry a woman, and somebody who is gender diverse and gender fluid and does not want to fit into that binary element of their gender to marry anybody they like. Yes, in some ways that will mean a change to how we have traditionally seen marriage. But we have seen change in what a legally accepted marriage is before. It used to be that we had situations where people of different races were not permitted to marry. I think that accepting that marriage is changing is accepting that, yes, our society changes, and it is accepting that there are couples in Australia who deeply love each other, who want to make that deeply personal commitment but also a public commitment of their love and commitment to each other. They want that to be legalised. They want to be considered the same, to have the same respect and the same recognition and not to be discriminated against—like every other couple in Australia.

I have, of course, personal experience of this, which I have spoken about before. I was married in 1986. In fact, my wife, Penny, and I are going to be celebrating our 30th wedding anniversary next month. When we married in 1986 we got married in a church, and it was a lovely wedding. It was just being part of society's celebration of a wedding, celebration of the institution of marriage, that deeply personal and public celebration. It was totally non-controversial. But then Penny, after a number of years of marriage, acknowledging that she was transgendered, changed her gender. She is now Penny. She was Peter then, back in 1986. And suddenly, at that stage, we were in a situation where we were the same two people; we still loved each other, but suddenly our marriage was not considered the same as it had been for the previous 16 years. Why should it be so? We were the same people. We still loved each other. The fact that Penny was transgendered, that she had changed from being Peter to Penny, suddenly put us in this situation where it was a controversial thing.

It should not be so. The basic reason why it should not be so is that we need as a society to acknowledge that we are not just all heterosexual people. That is the fundamental thing that our society is still coming to terms with. We are still discriminating against same-sex-attracted people. We are still discriminating against people who are transgendered or gender fluid or gender diverse. In this debate and the other marriage debates, what we need to come to terms with is recognising that we are diverse—we have this great diversity of sexuality and gender identity—and that there should not be discrimination. We should all be celebrated and all be accepted and loved for who we are.

Penny's and my marriage is still controversial in that, if Penny were to change her birth certificate, we would have to get divorced. This is a ridiculous situation, and it is totally illogical. Penny has decided that, no, she is not going to do that; she is not going to change her birth certificate, because we want to stay married. But we need to be changing our legislation so these completely ridiculous, old-fashioned, outdated notions of who is able to be married disappear.

Where we are at now in our Australian society in recognising that not everyone is heterosexual and that everybody, regardless of who they are, regardless of their gender and their sexuality, needs to be able to be married really comes to a head in this sort of legislative change that is needed to bring our legislation to catch up with where the Australian community is. As I mentioned before, we are now in a situation where clearly we have a majority of the Australian community who support same-sex marriage, who would think that the issue of Australia acknowledging the marriages of people married overseas should be a complete no-brainer—there should not be any discussion about it at all.

It is certainly not controversial amongst young people. I have been struck over the last couple of years by the total acceptance of same-sex relationships and the total acceptance of gender diversity amongst young people and by the number of same-sex-attracted young people I know who have been getting engaged. They have engagement parties. They have great celebrations, declaring their love and saying, 'Yes, we intend to get married.' They are engaged. They do not know how long they are going to have to stay engaged before they are going to be able to be married in Australia, but they are saying: 'This is who we are. We intend to get married and are waiting for the law to catch up.' So this legislation that we have before us today is just a small way, the beginnings, of the law catching up.

We had a contribution from Senator Fawcett, who was expressing concern that people would essentially go country shopping for their marriage, that these same-sex-attracted couples who are getting engaged in Australia would go off—whether they go off to New Zealand or they go off to the UK or, if they are able to, get married in the British consulate—and that this was a concern. For me, I think, it is actually acknowledging the power of their love and the deep commitment that they have. If they are going to make that effort to actually go to another country to get married, I say good on them. I am told that New Zealand is very nice at this time of year and that the New Zealand wedding industry is doing very well out of Australian couples who are travelling there to get married—having a legal marriage there that should be recognised here in Australia.

Recently I was invited to a pre-marriage party of friends of mine, one of whom is an Australian who has been living in the UK for a number of years and is getting married to his husband in the UK later this year. He would dearly like to have been able to get married in Australia. Most of his friends and family are in Australia, but, no, they are getting married in the UK. I have my wedding invitation, or effectively my wedding invitation, to come to their pre-marriage party in Australia.

We have such social acceptance of people who are same-sex attracted, transgender and gender diverse marrying in Australia that, here in this parliament, we need to be reflecting that. It is a ridiculous situation that our parliaments are so behind, so stuck in the last century. We need to be moving into the 21st century and catching up with the attitudes of the vast majority of Australians.

Returning to the issue of recognition of foreign marriage, it is such a ridiculous situation and, potentially, as we saw with the tragic case in South Australia, such a hurtful situation that foreign marriages are recognised in Victoria, New South Wales, Queensland and Tasmania but not in South Australia, Western Australia, the ACT and the Northern Territory. It just makes a mockery of our laws relating to this issue that that is the case. It shows the importance of why something like marriage should be legislated at a national level so that we can have uniform laws, because it does not make any difference as to whether you are in South Australia or in Victoria.

It is ridiculous that if you travel between those two states you have such a change in the status of your relationship. It is ridiculous, it can be so hurtful and it is just totally confusing. In the states where foreign marriages are not recognised, it is discrimination through and through. In the states where foreign marriages are not recognised, it is basically saying to people, 'Your marriage, your relationship, is not as significant and is not as important as other people's relationships.'

The Greens position is that we want to see equal marriage recognised as soon as possible but, in the meantime, this legislation is one small step forward. I must note that in relation to this legislation, which has been on the Notice Paper for quite a few years, it was drafted at a time when the issues of transgendered people were not as much in the spotlight as they are now. So those who are transgendered or who may not fit into either gender are not reflected in this legislation. I think it is unlikely that we are going to bring this legislation to a vote today, but at a later stage we would intend to amend this legislation to make sure that it does account for equal marriage not just same-sex marriage.

The Greens have got the courage. We have had the courage for years and years to be putting this on the agenda. Every time we have had a debate about equal marriage in any parliament in Australia, every Green—every vote, every time—we have been supporting the idea of equal marriage and having our parliaments and our legislation catch up with the community. We are very much commending this legislation to the Senate today. We see it as a small step forward that will really make a huge difference and a small step forward towards the time when we know that we will celebrating the love between two people, regardless of their gender, regardless of their sexuality, celebrating the end of discrimination against same-sex attracted people and transgendered people, and celebrating everybody being treated and valued for who they are.

10:42 am

Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

I understand perfectly well that same-sex marriage and redefining marriage is a very sensitive subject. It is personal to many in this chamber and out in the community. I also recognise there are very strongly held views for those of us who want to defend and protect the institution of marriage as we see it and not redefine it. But this Recognition of Foreign Marriages Bill 2014 is not really about that. It provides a platform, of course, for Senators Rice and others to stand up and talk about their personal relationships or about community demands and the need for a redefinition of marriage.

At the heart of this bill is a challenge to Australia's sovereignty to determine the laws that apply in this country and not be subject and beholden to laws implemented in other countries. That is the essence of what we are being asked to do here: to say something is not allowed in this country, is not legal in this country, yet we have to recognise the laws of foreign nations even though they conflict with our own existing legislation. That is what we are being asked to do: it is not legal for same-sex couples and homosexual couples to get married in Australia but it is okay, apparently, for them to get married overseas and come here and then say they are married.

It is a way of subverting Australia's self-determination in this place. I think that is wrong. I have said it is wrong whether it is about same-sex marriage or whether about subverting ourselves to the dictates of international treaties or anything else. We should be able to make our own determination about what happens in our country and the laws that apply to our citizens just like other countries. That is what national sovereignty is about. Of course, there are people in this place, in that corner on the other side, generally, who want to break down borders. And may I paraphrase their former leader, Bob Brown, who wanted one global government. That is what he wanted. He did not want borders. He wanted one global government and the rules, as determined by this global government—which would not be elected, by the way—to apply to all citizens equally. It is communism by any other form.

Now we have this conflation of the emotive topic of same-sex marriage working its way in with this global governance theory that the Greens have been pursuing. Bob Brown let it out of the bag when he referred to us as 'Earthians'—and I think he probably did want to include 'aliens', because he said the aliens were not talking to us because of what we were doing to the planet. This is utter madness.

The madness did not stop when former Senator Brown left. He left a legacy of it. It is like a virus that has infected that corner of the chamber. We have to start standing up for our national sovereignty and our self-determination and pass this bill. We have to advocate for this bill in this place—and it is not the first time it has been introduced. To advocate for it is to pre-empt the process that is already underway to survey the Australian people about their views on changing the definition of marriage. As I said before, people have personal and distinct views on this, but we should not conflate them. This is about Australia self-determination.

There are a number of flaws with this bill which have been dealt with, because it does circumvent our law. It would encourage same-sex couples who wanted to get married to go to where it is legal, like New Zealand, where, Senator Rice said, the marriage industry is doing really well. May I suggest—respectively, through you, Mr Chair—to Senator Rice that if people want to have a celebration of their love and commitment they can do that anywhere in the world. They can have it in their own backyard. I am sure they would find a religious institution that would allow it, notwithstanding the fact that it is a same-sex couple. You would find an enormous tolerance for it. People could do it in the beautiful parklands around the seats of Adelaide. They could do it here in the parks of Canberra—anywhere they like. They can have the party industry to their hearts content. And they could wear whatever they like. They could wear white dresses and tuxes. They can do whatever they want to in that respect.

But to suggest that we have to recognise a foreign law that is contrary to our own I think undermines this institution as well as our legal system. Now, you may disagree—and I suspect you do, Senator Rice. And you will not be alone in disagreeing with me over there—I see three heads nodding. But it is attached to the principle here, and that is where I think you are barking up the wrong tree, because you are jumping the gun, if I can put it that way. You are trying to force something upon this country that it has not accepted as yet. This parliament has not accepted it. There is a process going forward about it.

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

Order! Senator Bernardi, direct your comments through the chair.

Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

Indeed, I am. I am just facing the Greens' way.

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

Is that right, Senator Bernardi? Continue please.

Senator Lines interjecting

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

It is disengaged from his body, I reckon.

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

Order! Continue.

Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

I seek your protection from the vile slurs!

Photo of John WilliamsJohn Williams (NSW, National Party) Share this | | Hansard source

The chamber has been very good this morning since we have been here, Senator Bernardi. The chamber will come to order and Senator Bernardi will continue with his comments directed to me.

Photo of Cory BernardiCory Bernardi (SA, Liberal Party) Share this | | Hansard source

It is about circumventing Australian law, so I am trying to dismiss my personal views about redefining marriage and attach them to the principle about allowing or redefining our laws to accommodate foreign laws. I do not want to cause headlines—but I probably will anyway—but where do we take this? How far are we going to take this, because in Saudi Arabia or some of the Islamic countries you could go to it is legal for a man to marry four wives? That is a foreign marriage. Should we be expected to recognise that in this country? My argument is exactly the same: the answer would be no. They have their laws they can apply to their people, but we should not be forced to recognise it in this country, because it is not our law. If people want to change our law to do that, they are welcome to make their case, just as I am welcome to make the case against it. But the same principle applies.

We have this case where the advocates are trying to conflate two significant issues, one from their personal desire to redefine marriage in this country, and they have found a way that they think they can do it by stealth. They can encourage Australians to go overseas to get married and then come back here and say, 'We are married and recognised as married under Australian law.' You could encourage individuals who are, perhaps, British residents to get married in the high commission here, for example, because it is legal under British law, and then we would be expected to recognise their marriage in this country.

I also make the point that there is a lot of debate about this word 'marriage' and redefining what it means. We have, in effect, the opportunity for same-sex attracted couples who want to permanently recognise their union or register their union to do that through an appropriate register already. I note, Mr Acting Deputy President, I think it was you who suggested that perhaps that could be called a different name rather than 'marriage' and that might satisfy the diverse groups that have an opinion in this space. Whether that is accurate or not, I am not entirely sure. My point is that there is already an opportunity for same-sex attracted couples who want to recognise themselves and register in a permanent union to get all the same benefits, if you will, of married couples in this country. They can register with the government and they can be treated as spouses for all intents and purposes of government facilities.

In the 2011 census the total of same-sex couples whose relationship was reported as 'de facto partner'—and 'de facto' means, basically, 'common-law partner'—in Australia was 32,377. There was also a small group of 1,338 same-sex couples where the relationship was reported as 'husband' or 'wife'. So the total number of same-sex couple relationships that were registered either as de factos or claiming to be husband and wife was 33,714. That contrasts with the 4,650,986 opposite-sex couples whose relationships were either recognised as de facto or husband and wife. So it is a tiny subset of the community who are seeking this sort of registration or government recognition of their relationship status. For that tiny subsection of the community we are asked through this bill to suspend Australia's self-determination and to modify our existing legal framework to accommodate foreign laws. I find that an extraordinary precedent. I find it extraordinary not just in this case but also if we were asked to do that for any realm of our law. The laws are made in this place. We should not be subdued or subject to the laws of a foreign land simply because it is convenient for a group of advocates.

As I mentioned, there are some potential issues in respect of this. There is the potential differential treatment for same-sex couples who have their relationships solemnised overseas in contrast, perhaps, to same-sex partnerships pursuant to some state and territory laws in this country. Broadly speaking—there may be one or two exceptions—if same-sex relationships are registered they can obtain pretty much the same benefits in many respects as married couples, particularly under Commonwealth law in respect of inheritance, pensions and so forth. I think there are one or two anomalies in some states. That could bring us into conflict with some of the states and territories. Simply because someone has gone off to New Zealand to marry does not mean that what is recognised in New Zealand, for example, will be recognised in the UK, America or any other areas where it happens.

Then there is the question: if you have same-sex marriages conducted in foreign consulates in Australia and in consulates in overseas countries where same-sex marriage is not legal, would they be recognised as valid marriages? If you go to the Australian consulate overseas and decide that you want to get married there but it is not allowed by the law of the land, is that going to be recognised as a legal marriage? These are the sorts of questions that have not really been considered in this bill, although they were referred to a committee. There are a number of amendments in the bill that would apply to same-sex marriages that have already been solemnised overseas and they may give rise to some particular legal issues.

I am not sure if there is a proposal for an amendment coming through or not but the bill would need to be amended to ensure that other current limitations on the recognition of foreign marriages—and section 88D of the Marriage Act deals with things like minimum age, prohibited relationships, consent and so forth—are preserved in relation to foreign same-sex marriages. We know that in certain countries the age of consent, the engagement or marriage of minors, the legal age for sexual relations and all of those sorts of things are not always consistent with Australia's expectations and societal expectations. The question is: are we supposed to accommodate that simply because it is legal or culturally acceptable in another country, even though it is not acceptable in our country? These are the sorts of real world questions to be asked. It is easy to put forward simplistic demands and say that this is about fairness, it is about equality or it is about something else, but there are implications for all of these things. That is what this place is meant to do; it is meant to consider the implications of things. In considering this bill, I cannot accept that we should be suspending Australia's sovereignty and self-determination to satisfy the laws of another land.

I made mention before that the bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee. It reported on 25 September 2014. That was a couple of years ago and I do accept that maybe the public debate has slightly moved on since that time, but that does not negate the concerns that the Legal and Constitutional Affairs Legislation Committee had because it dealt with the legal aspects and implications of the bill and not the emotive aspects of the bill. The committee recommended that the bill not be passed. I am not a lawyer and I have not had any legal training, but I do respect some of the eminent legal minds in this place, people who have studiously sought to apply legal principles to the examination of bills and the potential consequences and implications of that. That committee, which is entrusted with the scrutiny of legislation by referring to our legal system and to our constitutional affairs, has recommended that this bill not be passed, for appropriate reasons, some of which I have detailed today.

It would come as no surprise after my earlier remarks that I am unable to support this bill because it not only undermines our status of self-determination but also creates inconsistencies. It creates inconsistencies with the current definition of marriage—that may change of course in the years ahead; time will tell—and it encourages people to run away from Australian law, subject themselves to other laws and to subvert the laws here. I note that there are a range of definitions of marriage around the world that are inconsistent with Australian law and that has not been dealt with in this place. I think what they have tried to do here is include same-sex couples, but in that determination they are ignoring a range of other people who for cultural, religious or other reasons may engage in other forms of relationship status. It is not about ending discrimination and it is not about opening up marriage to all and sundry; it is about trying to satisfy the demands of a relatively small subset of the Australian relationships register, as I have noted before, due to the 2011 census.

With that, I will seek to conclude my remarks with the sense that it may be true—and I am not conceding any point—that the Australian public are much more sympathetic to redefining marriage than I think they are. It may be true what Senator Rice said—that many more young people are open to seeing marriage as something different to what I have seen marriage as throughout my entire life and what society generally, Western society, has seen it—but there is a limit to the tolerance. There are people that have an open mind in this space but who do not want to see a regular formal process, a process in which many people have a lot invested, subverted by bills like this.

I would expect that many Australians would regard this bill as a tricky way of advancing a particular cause which they may or may not agree with. The parliament, the Liberal Party, the coalition and the government have, to their credit I think, said that this is significant issue. Redefining marriage has not been able to be resolved through the parliament notwithstanding 16 different bills not having been passed. That is not good enough for the advocates of redefining marriage, so they want to put it to the Australian people. The Australian people are pretty smart. They will understand the implications of what they are going to be asked to deal with, but I do think they are not as tolerant of these sorts of measures that have come through because they are seeking to undermine what I would regard as due process. These measures are sneakily trying to advance the homosexual marriage cause without really going through the appropriate consultation period.

I have outlined the reasons why am I unable to support this bill; some of them are personal. I respect that other people would have very personal investment and engagement in this but I do not think it does us any service as a nation to undermine our own national sovereignty to try and advance the homosexual marriage agenda by stealth, which this really is, because it would encourage people to go outside Australian law to engage in a solemnised union overseas and then come back here and demand a different set of standards or a different relationship status than is available to people under Australian law.

11:02 am

Photo of Sue LinesSue Lines (WA, Australian Labor Party) Share this | | Hansard source

I too rise to support the Recognition of Foreign Marriages Bill 2014. It would come as no surprise to anyone in this place that I am a strong advocate for same-sex marriage. I think it is long overdue and I would want to see foreign marriages recognised. It was interesting to listen to Senator Bernardi's contribution this morning because he did touch on Australia's sovereign rights and said that if we moved on this bill and we allowed foreign marriage to be recognised in this country that it would create inconsistencies. What I want to do this morning is draw heavily on the dissenting report of Senator Carol Brown, who also was at the inquiry into this bill. Her report shows very clearly that there are already inconsistencies about how particularly same-sex couples are treated with a foreign marriage certificate in Australia. So those inconsistencies are already there and they absolutely impinge on the rights of individuals to operate fully in our society. Of course it is an absolute inconsistency that I could choose as a young woman to get married in Britain, live there for quite a few years and, on my return to Australia, have my marriage fully recognised. Those rights just automatically transferred.

I know Senator Moore and other senators have touched on the tragic case of David Bulmer-Rizzi, who recently was killed in South Australia. What is really tragic about that case is I am sure even those who do not support marriage equality would recognise that this was a genuine relationship, that they were genuinely in love and that they wanted to celebrate that love through a formal marriage, which of course, being British citizens, they were entitled to do and did so. When people get married or they engage in a civil union or whatever they choose, they seek to celebrate that. So as part of that celebration, the couple decided to come to Australia on their honeymoon to continue to celebrate their love and their union in a way that many of us in this country choose to do. What of course nobody imagined was that, during that honeymoon, Mr David Bulmer-Rizzi would unfortunately lose his life in a freak accident.

We cannot really imagine the loss of a partner but we can all understand that that would be absolutely horrific, made worse in a foreign country away from family and friends to support you. But what happened then was truly tragic because the death certificate did not record David as being a married man—a final insult to this couple. To tragically lose your partner and then not have Australia recognise that the person you loved more than anyone else in the world, who you recognised and indeed who the British government and British people recognised as your husband, was a married man would be something that would sadden you for the rest of your life. It is something that is for me a given, having married in Britain and come back here. My marriage was recognised and simply continued on with all of the legal rights that came with it, but, in the case of David, his marriage was not recognised or recorded on his death certificate. That is an inconsistency right there in front of us that goes to the heart of unfairness and to the heart of what most Australians, I think, would regard as an absolute injustice. That that final piece, that final legal document did not have 'married' on it is the ultimate tragedy.

There is also the story of two gentlemen who moved to Pennsylvania from New York City: Bill Novak was 78 and Norman MacArthur was 76. Again, this is a US example but could equally apply here in Australia. Their domestic partnership was not recognised. In order to enable those rights—which those of us who can marry take for granted—to be recognised, they went to the extraordinary length of Mr Novak adopting Mr McArthur as his son. Everybody knows that is farcical, but imagine being forced to go to that length just to make sure that your partner had rights under the law. This is what is being denied when we do not allow marriage equality. There are inconsistencies in the law. It is a tragic circumstance to make this farcical arrangement of pretending that someone is your adopted son so that there are legal rights about having access to someone if they are taken into hospital. Hospitals are very strict about next of kin and so on and so forth, and at that point when someone is ill you do not want to have to fight the bureaucracy to have your rights recognised. So that was an extraordinary length that they went to.

Australian Marriage Equality also tells the story of Julianne, who married in 2006 overseas. The minute she stepped back onto Australian soil, her marriage was not recognised. As I said earlier, the minute I step back onto Australian soil, my marriage was recognised. That marriage has dissolved and we are divorced, but today I still have the choice about whether I marry or whether I remain in a de facto relationship. We need to modernise our Marriage Act, because the phrase 'de facto' quite offends me. But I have that choice. Yet all of my friends in same-sex relationships in Australia are denied the same rights as I have.

As I said earlier, I am drawing on the work of Senator Brown on this. What we saw through the Senate inquiry—and Senator Bernardi did not go quite far enough with what the Senate inquiry discovered—is that there are countries that do not recognise same-sex marriages within their own systems but do recognise foreign marriages. This alleviates the sorts of minefields that people then encounter the minute that they want to be recognised as the spouse or the partner, often at a hospital or on a death certificate. So countries that do not have marriage equality as part of their sovereignty already recognise overseas marriages so that people have that smooth transition.

We know now that many countries have moved to look at marriage equality. This issue of marriage being between a man and woman has only been in the Marriage Act for 10 years, so it is a relatively new part of the Marriage Act. As we know, it was brought in by former Prime Minister John Howard. It is not as if has been in there forever and a day; it has not been. That definition was only put in 10 years ago, so it is not something that is like our Constitution and is enshrined and is very much part of who we are. That definition has only been in the Marriage Act for 10 years.

There are countries that, whilst they have not yet moved to marriage equality, recognise foreign marriages. For those foreign marriages—when you now get married as a same-sex person and you come back into Australia—your marriage is recognised under some level of Australian law, but really it is recognised as either a civil union or a de facto relationship. In Tasmania, the relationships recognition scheme recognises foreign same-sex marriages but as local civil unions. They are changing that definition, changing people's legal entitlements. It means that same-sex couples married in Tasmania who are married under foreign law have the same rights as married couples but not that same legal definition. That is because the state cannot do that, because this is a federal law.

When you start to look at what each state does, you start to see the inherent inconsistencies. If a Tasmanian couple who have their foreign marriage recognised move to South Australia, for example, it would not be recognised. So we have this massive inconsistency across the country, where one state jurisdiction recognises everything and gives, under state law, 100 per cent access to law and rights, and other states do not. That is completely unacceptable and is an inconsistency.

There have been policy changes in Australia to enable Australian citizens to enter into same-sex marriage under foreign laws, because some foreign countries that allow same-sex marriage have obviously different rules about what you need to do in order to make your marriage lawful under their laws. There are a number of countries that require proof that there is no impediment to marriage. Those of us who have been married know that those words are something to the effect of, 'Does anybody object?' Some countries require proof. So the Commonwealth government has now moved to give those same-sex couples certification that there is no impediment to their marriage, which is going to take place in a foreign country. Again, we see this pseudo-recognition that this couple is going to be taking on a formal marriage in another country, so the Commonwealth now assists by giving a certification saying that there is no impediment to marriage.

Again, this is another inconsistency. We do not have marriage equality in this country and we do not recognise those foreign marriages once the people come back to Australia, but we have smoothed the way and we provide a certificate to say there is no impediment to that same-sex couple getting married. The impediment occurs the minute they step back, wanting their foreign marriage to be recognised—even though Australia, under the Commonwealth, has enabled that to happen through the issuing of the no-impediment certificate.

This is a minefield. Again, this is another inconsistency—that we would enable that marriage to take place by issuing the certificate but the minute that couple comes back to Australia: bang! We do not recognise the marriage. That is sheer madness. That is really something out of Yes, Minister; That is bureaucracy gone crazy, that we do one thing to enable the marriage but then the impediment comes when you step back in.

Of course, as we know—and Senator Bernardi talked about this—you can now, as an Australian citizen, go to a British consulate to have your marriage recognised there. So if you have dual nationality you can go to the British High Commission in Canberra or wherever they exist in Australia and be married. Now, you are standing in Australia—sure, you are in a foreign embassy—but the minute you step outside that door, just a few steps away, your marriage is suddenly null and void and no longer recognised. Again, that is bureaucracy gone mad and another inconsistency. Whilst you are in that embassy office you are recognised as a married person and the minute you take two or three steps outside and back onto Australian soil then Australian law does not recognise that foreign marriage. That is complete madness.

Of course, we know that since New Zealand introduced the ability for same-sex couples to marry that many Australians have gone over there to be married. Indeed, two good friends of mine from Western Australia, in the few moments that we had marriage equality here in the ACT—well known to you, Mr Acting Deputy President Sterle—Stephen and Dennis came over here and I think were one of the first couples who were married. But, of course, that was very short lived. Even here in Australia that law was overturned, unfortunately. While Stephen and Dennis were married for a short time, now there is no formal recognition other than what Western Australia offers in relation to civil unions.

So we know that Australians who want to marry and who cannot marry here are going to New Zealand in significant numbers to be able at least to have a marriage certificate that acknowledges them as a couple. So it is quite incongruous, in spite of policy changes that enable same-sex couples to marry under foreign laws, and the recognition of foreign same-sex marriages, civil unions or de facto partnerships under state and Commonwealth laws, that these unions are still not considered as legal marriage under Australian law. Just trying to get your head around that is crazy.

And so the law treats same-sex couples differently. Certainly, during the Senate inquiry a number of submissions raised concerns about the interaction between some foreign marriage laws and the state and territory relationship recognition schemes, some of which cut right across that relationship. For example, we see that in effect Australian same-sex couples are being forced to choose between the practical protections offered by the recognition of the relationships under an Australian scheme—that they become the next of kin, that they are recognised in relation to immigration, legal recognition when not living under one roof et cetera—or to have the relationship appropriately recognised, as they see it, by being legally married under the British scheme.

But the British scheme forces Australians to make a choice, because under the British law being in a civil union is seen as being an impediment. So if you are in a civil union under Australian law you have to renounce that in a sense in order to take up marriage. This is an inconsistency and it is treating people differently because of the nature of their relationship. So, if you are same-sex person and you want to marry your partner you have to make that choice. It is ridiculous, and there are obvious legal hurdles that you have to go through.

This is forcing people to face the choice of having substantive rights through having an Australian certificate or having the dignity and respect of marriage with none of the rights. Here we are: if you want to be married and you have dual citizenship, you could be married under British law—which presumably gives you some dignity—but you would have to let go of any rights that you had through a civil union in Australia. That is the situation that people are faced with. It is not just a matter of saying, 'We are deeply in love and we want to make this lifelong commitment to one another, and we want to do that through marriage.' It is not as simple as it is for people like me to make that commitment; it is much more complicated if you are in a same-sex relationship. Again, that is an inherent unfairness that I really rail against. It is not appropriate, it is not right and it is not just to make those distinctions between one person and me based on my sexual preference or their sexual preference. It is not right and, certainly, in 2016 we should be a lot further along in this debate than we already are.

Of course, Senator Bernardi mentioned the plebiscite. It would seem that despite Mr Turnbull being an advocate of same-sex marriage that we are going to have this very expensive and unnecessary plebiscite, which people like Senator Bernardi have already said they are not going to support if it comes back with an overwhelming yes. At the crux of this is what the question will be. We have no certainty that it is going to be a fair and just question. We on this side of politics all know that that question can be manipulated so that we get a no vote. Again, saying the plebiscite will decide where we go on marriage equality—I am sorry, but I do not have that faith.

I urge the Senate to support this bill to recognise foreign marriage not on the basis of morality but simply to get rid of those inconsistencies and legal minefields that people face and to bring justice to David, quite frankly.

11:22 am

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

It is with pleasure that I stand up to contribute to this debate because, the more we can do in this place to progress the debate on these issues, the better. I have been on my feet in this chamber for as long as I have been in this chamber to contribute to the debates we have had to achieve marriage equality in this country. I will continue to do that and I am really pleased that the Greens are yet again at the forefront of this debate, bringing this bill on for debate to recognise foreign same-sex marriages.

As people who have made contributions to the debate have articulated, this was brought to a head by the very tragic circumstances in South Australia over the summer, where we saw Mr David Bulmer-Rizzi pass away and his death certificate not recognising his marriage. That is in fact a lie. We have contributed to a lie. He was married. How can it be possible that his death certificate actually has a lie? He was married. He was deeply loved. He was on his honeymoon. Imagine being in that situation. It is unbelievable that that can still occur in the 21st century in this country. I must admit it shames me that that could happen in this country.

Look at last year in particular. We saw so much progress internationally in terms of marriage equality. On 22 May last year a referendum in Ireland reflected the people's call for marriage equality, and it was truly an amazing moment in history. A month later the Supreme Court of the United States ruled that same-sex couples had a fundamental right to marry. We all saw the coverage of that. We all—certainly on this side in the Greens and my extended families—celebrated with our friends that we had seen such progress. We all saw the cheering crowds. I was part of the amazing rally in Russell Square in Perth in Western Australia, where we had over 5,000 people come together in the pouring rain to send a message to the federal government but also to celebrate what had happened internationally with the progress that we made. It was to call on our government to reflect the people's will and progress marriage equality.

Mr Abbott's response was that we will have a plebiscite which now, as has been articulated in the chamber by Senator Lines most recently, many people in the coalition are saying they will not respect. The fact is that we should not need that plebiscite. We should be progressing right now with marriage equality. One of the steps now is to support this bill in recognising same-sex marriages. I heard Senator Bernardi say in his contribution that we should not allow ourselves to be controlled by foreign decisions and that they are controlling Australia. Perhaps we should not be recognising any marriages from overseas if that is his call. I am shocked. My parents were married in England. Maybe we should not be respecting their marriage, because it is a foreign marriage. Of course it is a ridiculous argument and a ridiculous argument for this particular matter.

Maybe we should go back to the time in marriage when divorced people could not get married. That would nullify my current marriage. Maybe we should do that. Or maybe we should take it right back to when marriage was really, for a lot of people, about getting control of women's assets. Maybe we should go back to that time. It is a ridiculous argument to say we are just preserving marriage, because marriage has changed over the centuries and it needs to change again. We need to recognise same-sex marriages. As I said, at least this current bill is a step in the right direction. For couples who come to Australia, their marriages will be recognised so that nobody is ever again put in the position of Mr Marco Bulmer-Rizzi—the terrible circumstances that he has been put through, the pain and agony, on top of the grief of losing his husband, of having a lie put on the death certificate and having to have that fight. I do not want to see anybody have to go through that ever again.

In my home state of Western Australia, unfortunately, we do not recognise foreign same-sex marriages. We are not as lucky as some of the other states, and I will come to that a bit later. Not only would this bill address the issue I have just been talking about, where people come to Australia and tragic circumstances happen; it would also address marriages for Australians who have gone overseas and got married. That is a hard thing to do, too. They have made the effort to go overseas to get married so that their love is legalised. They come home, and Australia says, essentially, 'Get stuffed. We're not recognising that. We're not recognising your marriage.'

Members of the coalition were saying this morning, 'You can do something else—a civil union. You can do something else. You can have a ceremony. You can have your flowers.' Clearly they do not actually believe that themselves. They know why we have the institution of marriage, why people want to get married. I myself have chosen to get married. I have actually done it twice. We share it because we want to legalise our love, have it recognised. It is not just about the ceremony. The ceremony is great, but it is actually formalised in front of your loved ones, your friends, your family. That is why this is important. People should not be fobbed off with: 'You can have a ceremony. You can have your friends there. But you can't have access to our protected institution of marriage.' As I said, marriage has evolved.

You can look at statistics for the LGBTI community. I am putting this into the debate because I think it is very important because it puts in context the way that all members of the LGBTI community have been treated, but particularly young people. When you look at statistics from the Australian Human Rights Commission and beyondblue for 2013-14, they show some of the very significant impacts of the discrimination, the abuse and the vilification that members of the LGBTI community still get in our community. Sixty-one per cent of LGBTI young people report experiencing verbal homophobic abuse. Eighteen per cent have experienced physical homophobic abuse. I can report that very dear friends of mine in fact have been subject to that abuse. Gay, lesbian, bisexual and transgender people are three times more likely than the broader population to experience depression. LGBTI people are at a higher risk of suicide than many other groups of our population. Same-sex attracted Australians are up to 14 times more likely to attempt suicide than their peers. At least 50 per cent of trans people have actually attempted suicide at least once in their lives. A large number of LGBTI people hide their sexuality or gender identity when accessing services, at social events or at work. Young people aged 16 to 24 are more likely to hide their sexuality or gender identity. This is wrong. This is a tragedy that people suffer every day of their lives.

This is, as I said, the 21st century. What the laws do makes a real-life impact on people's lives. It is not just a small difference. There is a huge difference that we can make by addressing marriage equality, by changing our laws. This bill, I must admit, does not achieve everything. We have still got a way to go. But at least it will recognise those marriages that have taken place overseas.

I would like to take the opportunity to acknowledge the work done in Western Australia. As I said, unfortunately we are not one of the states who have made the significant progress of recognising foreign same-sex marriages, which is a great shame to me as a Western Australian. But I must pay a lot of tribute to one of my colleagues, Lynn MacLaren, a member of the Legislative Council in Western Australia, who has been fighting tirelessly ever since she has been a member of parliament—in fact since before she was a member of parliament—to achieve same-sex marriage, to achieve marriage equality, and has also been working on trying to achieve recognition of foreign same-sex marriages in Western Australia. But we need to make sure that we have a national approach. Lynn has campaigned to improve services for the trans community, to have overseas marriage recognised in WA and for the right to remain married after a sex transition. She has campaigned to make sure that people have the right to be relieved of a criminal conviction for engaging in consensual gay sex in years past. She has campaigned at every level of government to try and bring about change.

This is an issue that we fundamentally need to address. I would like to make reference to the LGBTI community in Western Australia and particularly the young people in Western Australia, whom I have spent a lot of time with, spoken to on numerous occasions and helped to campaign. We know in this place that you are suffering from discrimination at home in Western Australia. You have been failed by your politicians to date because we still have not achieved marriage equality. I should say 'some of your politicians', because many of us in this place have been fighting tirelessly. I know my colleagues have spoken about the work of Bob Brown and Christine Milne. And my colleagues who are here today and I all campaign tirelessly on this issue. We know that the community deserves better. We have been standing up with the people of Western Australia, the Greens in Western Australia, to change these laws and to enable you to have your voices heard. We will continue to support you, and all Australians, but we Western Australians will support the Western Australian LGBTI community to achieve this change. As I said earlier, we are not going to stop until we achieve change.

On previous occasions, with permission, I have shared the experience of Graham and Damian Douglas-Meyer in this place. I think their experience is particularly pertinent in this debate. I count Graham and Damian as friends. I will again remind the chamber of their experience. Graham and Damian have spoken publicly in the past about how they wanted to demonstrate their commitment in the same way their siblings did. The symbolism and ceremonial aspects of a wedding were important to them. They wanted the same thing. They had a commitment ceremony in 2004. Their friends and family were there and their union was blessed by a priest. It was a wedding ceremony for them, and their friends and family, but they wanted the recognition of the wider community. So they were able to marry in Canada, which had removed that piece of discrimination from its legislation, but when they came back to Australia their marriage was not recognised. Despite their best efforts, our broader community was not willing to recognise their love and commitment. That is wrong. Their marriage should be recognised. They went to a lot of effort to be able to go to Canada. They are married, but it is not recognised here. We want to change that. We need to change that. We need to recognise these marriages.

Ultimately, this is a debate about whether we should recognise the love that two people share and whether we should accept and celebrate it. This is what we are really debating. I would argue passionately that we should recognise and respect the love that any two people share. Those who do not support this bill are trying to deny the love of two people and, in fact, to stand in their way. In Mr Bulmer-Rizzi's case it is a falsehood. Not only are they denying it but also there is a lie now on the death certificate. It is a lie. They want to point to people in our community and say, 'Your love isn't real; your love doesn't exist,' which is of course a complete nonsense.

Some states have made progress on this issue. New South Wales, Queensland, Victoria and Tasmania all recognise overseas same-sex marriages. These are important steps, but tragically many states do not; hence the need for this bill. As I have articulated earlier, this debate got renewed focus on it because of the tragic circumstances in South Australia. And, as Senator Simms articulated, it is good to hear that South Australia is moving on.

This bill is an important bill. We should standardise recognition of foreign same-sex marriages—overseas marriages—across Australia. It is an important step. Coming from Western Australia, I am ashamed that my home state does not recognise overseas same-sex marriages. My home state does not. I expect my national laws to achieve this. This tragic story that has happened in South Australia could happen in my home state of Western Australia. I do not want to see that happen. It should never happen again. That is why it is important that we pass this bill. Right now there are people in Western Australia whose love and commitment is not recognised. They are in our community, like Graham and Damian. They are Western Australians. They are Australians and their love, their commitment and their marriage is not recognised. That is a huge shame on Western Australia.

Australian Marriage Equality has written to the state Attorney-General calling for urgent change. I support that and I add my name to that call, but here today in the Commonwealth parliament we can make a change. We can make a change to recognise foreign same-sex marriages. This is a part of the step to achieve marriage equality. It is a small step, but we can take it and we must take it. I commend this bill to the Senate.

11:41 am

Photo of Matthew CanavanMatthew Canavan (Queensland, Liberal National Party) Share this | | Hansard source

It is an appreciated opportunity to make a contribution to this debate on the Recognition of Foreign Marriages Bill 2014, a private senator's bill brought forward by the Greens party. I was listening to Senator Siewert's speech, and often when this issue comes up members of the Greens party in this place show little respect for other people's views. They show little respect for the fact there might different perspectives on what it means to be married and why we have had a definition of marriage as one between a man and woman for thousands of years. But, of course, that is immaterial to the Greens because they have come here in the last 10 or 15 years and are all knowing, omnipotent and omniscient and believe that it should be changed, and anyone who disagrees with that—including presumably our fathers, grandfathers and grandmother, who had a different view—is a bigot; we are right and they are wrong. That is their view. They have no respect at all for other individuals' viewpoints.

I think if you are going to change an institution that has stood the test of time, if you are going to propose a change in definition to something that has been in place for centuries—not just here but in other cultures as well—you would take some time to familiarise yourself with the history of the institution and why it actually exists. I see none of that. I see no evidence that the Greens have done that. At times they seem to imply that this particular institution is a religious one or a Christian one when in fact that is completely not true and it is also not true in our own Western culture. As I said, this is an institution that in different forms is effectively replicated across almost the entire world, or has been until the turn of this century, as an act where two people—a man and a women—come together in union to become married.

In our own culture, in our Western European roots, this particular institution does not go back to Jesus's time, Christian times, Judaic times or any monotheistic religious times; they actually go back to Roman times, because the very word 'marriage' is derived from a Latin term, 'matrimonium'. I think it is important to understand that definition, because it helps you understand the history of this institution and why it has come about. 'Matrimonium' in Latin is the combination of two definitions: 'matri', meaning mother, and 'monium', meaning state of being or condition. So for Roman people the institution of marriage was the state of being a mother. That was why people got married or entered in matrimonium.

Of course, in Roman times there were plenty of other adult human relationships. Homosexuality was a commonly accepted relationship, but in Roman times they stuck with the definition. They had an institution that was separately recognised: the coming together of a man and a woman, in particular with the mother becoming the parent of a child. That for me must be something at the core and centre of this debate if we are going to change this institution.

Obviously, there was felt a need to establish an institution like this to raise and to protect children. Obviously it has been an incredibly successful institution given its permanence and consistency over many different cultures and over many different forms of government and societies, even in our own Western culture. We have of course evolved a lot from Roman times. Through the emergence of a nation state, through the Dark Ages and through feudal times, this institution has stood through all those tests of time and has basically stayed constant from its initial inception. It is of course something that is important to many religions as well. But, again, that is an indication of its universality, and we should be very careful before we change it.

So it disappoints me that the Greens cannot actually see that there are very considered and reasonable arguments for why we should not change this definition. I certainly respect other people who have a different view. Some of my colleagues have a different view. Some of my Senate colleagues on the other side have a different view. I can understand that view. I disagree with that view, but I do respect it. The Labor Party—I give them credit—are showing some respect in saying that they support a free vote. They say they support a free vote but whenever these debates come up in this place we never see Labor Party senators able to express such freedom.

I know there are senators over on that side who share a different view on this issue than the views we have heard so far from the Labor Party, but where are they? They never seem to be allowed to get up here and speak. I would say to the Labor Party: please, please, let the diversity of views reign; let hundreds of flowers bloom; and let Senator Bullock have his say. Unleash, Joe. Let Joe have his freedom. Let Senator Bullock have his say here, because I would be very happy to listen to his view on this debate. I think he would have a lot to contribute. But the Labor Party want to keep people like Senator Bullock down and not give him the opportunity to contribute to this debate. I do not think they really believe in a free vote. It is a political position at the moment. Even they admit that post not the next election but the election after they will adopt a binding vote and it will no longer be free. So it is quite a strange position for them at the moment.

This bill seeks to recognise same-sex marriages that have been solemnised in foreign countries and recognise them for the purposes of Australian law. To that effect, it is effectively a back door to change the definition of marriage in our act today. Today it is fairly easy and fairly low cost to travel overseas, and many Australians do that. So, by recognising a same-sex marriage in another country, that effectively means that we would have changed our own definition in our own act and allow anybody who wants to be married, inconsistent with the current definition in our Marriage Act, to quite easily do so. It would simply be the cost of a plane ticket to somewhere else.

I do not think that is how we should change the definition of our Marriage Act. We do not need to do it in such a loophole kind of way. We can very easily change the definition in the Marriage Act if that is what we want to do. Indeed, as my colleagues would all know, there have been a multitude of bills put forward to this place and the other place to do that very thing. That should be the way that we try to approach it. Of course, every bill that has been put up to change the definition of marriage over the past 10 years or so has not succeeded and has not won the support of either chamber.

This debate has become more prominent in our public sphere and views about it have become more impassioned, I think, in all political parties. The government has decided that the best way to solve this would be to ask the Australian people what their views are and make sure we make a decision consistent with their considered views. If we are going to change an institution that has stood for thousands of years, there is no harm in taking a couple of more years to make sure that whatever decision we make is a well-informed one and one that we know and trust is consistent with the Australian people's views.

I make the point that this debate heated up last year because the Irish people had that very opportunity to have their say. They had a referendum and the vote came back in favour of changing their definition of marriage, and it was subsequently changed. The supporters of change to our Marriage Act welcomed that at that time. They called it a landmark event and thought it was a wonderful outcome for their particular cause. So I ask them: what do they have to fear from exactly the same process being replicated here in Australia? They so welcomed that particular event and they were so proud of what the Irish people had done. What is the problem with giving the Australian people exactly the same right? I say that the reason they are so scared at the moment of taking it to the Australian people and the reason they are fighting so hard to stop any plebiscite going to the Australian people is that they are concerned that they may not get the same decision as Ireland.

For my part, I have nothing to fear. I am happy to ask the Australian people what their views are. I recognise that right now in polls that are done the majority is there. But I do think that we should make this decision after a considered debate, not after a phone poll—not after someone has called up after they have had their dinner and have asked for a considered view on an institution that has lasted for thousands of years. We should have the respect to have a proper debate, a lengthy debate, before we go changing something as important as this.

I would also take this opportunity to say to the chamber, as I have said publicly, that, if a vote comes back in favour of changing the Marriage Act, in particular if a vote comes back from Queensland—which I am a senator for—in favour of changing the Marriage Act, I will respect the views of my Queensland electors, because they are who I am here to represent. However, I would add that I will not support any changes to the Marriage Act which compromise or minimise people's human rights. That is not something that we should outsource to the ballot box. We should not have a situation where we allow some kind of tyranny of the majority to undermine people's fundamental human rights, and one of those fundamental human rights that is extremely important to our country and our way of life is freedom of religion.

People should have the freedom to carry out their own religious beliefs, the freedom to carry out their own beliefs. It is a right that is enshrined in our whole system of government, it is implied in our Constitution and it is something we have committed to sign up to in various international human rights agreements. For that reason we should not do anything that undermines those rights, and I am concerned that some of the particular proposals at the moment to change the Marriage Act—the detailed, specific ones—may in fact do that, particularly where they force private celebrants to solemnise same-sex marriage relationships, even in an event where they may have religious views or beliefs that do not support such a solemnisation of marriage. I do not think anybody should be forced to do that, but the current bills before this place and the other place would do that.

I would also like to make the point that while I am happy to be guided, and will act in accordance with the views of the electorate, it is also important that we hear from those who want to change the Marriage Act on what they would do in the event of a vote that supports traditional marriage. Many of them have been out during the past couple of weeks, such as the leader of the Greens, Senator Di Natale, saying that it is reprehensible that some individuals may not vote in accordance with the people's wishes. What would they do if the people's wishes come back in support of traditional marriage? That question must be asked. They must be asked: what would you do if it comes back saying the Australian people want to support traditional marriage? Will the Greens political party accept that particular decision? Will they end their attempts, their continual and interminable attempts, to change this act? Will they do that? I doubt it very much, but I would be interested to hear their response to that question.

Finally, I want to return to where I started. While this is somewhat of a semantic debate, I think words are important, I think definitions are important. I believe that if we do change the definition of the word, it does change our culture. I believe in what Ludwig Wittgenstein said: 'If I do not have a word to describe something, I cannot conceive of it. The limit of my world is the limit of my language.' If we do change this particular definition, it will remove some of the colour and imagination from our lives because we will no longer have a word that just describes the union between a man and a woman often coming together to make children. I think that is an incredibly miraculous and important event in many of our lives and in our culture, and we should have a particular institution and a particular word to describe the creation of the next generation.

Photo of Gavin MarshallGavin Marshall (Victoria, Deputy-President) Share this | | Hansard source

The time for this debate has now expired.