Cory 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.