Claire 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.