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

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

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

He went on to say:

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

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

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

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

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

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

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

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

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

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

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

He went on to say:

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

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

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

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

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

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

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

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