Sue 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.