David 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.