David Bushby (Tasmania, Liberal Party) Share this | Hansard source

I rise to contribute to the debate on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

It now looks inevitable that a change to the definition of what marriage means under Commonwealth law will happen in the next few weeks. This change follows the results of what is referred to as the 'marriage survey', under which all Australians on the electoral roll were provided the opportunity to have their say on the change. The result of that survey was emphatically clear: the majority of Australians in all states voted for a change in the definition of marriage.

One might speculate on the reasons why Australians who voted yes did so, and I suspect there was a range of reasons. Speaking to many of my constituents in my home state of Tasmania suggests that at least one of the reasons was because people were sick of the debate and they just wanted to move on, which I guess is as valid a reason as any. Of course, many voted yes because they fervently believed that not allowing people of the same sex to marry represented discrimination that needed to be removed. But I suspect others did so out of some desire to undermine what they see as regressive aspects of how we live, or have lived—those based around the family unit and a strong morals based approach to society and how we live. These are aspects which I consider have helped to support a strong, vibrant and healthy community.

I also note that many Australians voted against changing the definition in their survey response—almost 40 per cent of those who participated, in fact. Additionally, in the survey millions of others chose not to participate, presumably indicating that they held no strong view on the issue. The perspective of each of the Australians who voted no, and even those with no strong view, are in my mind just as important as those who voted yes. But in a democracy, rightly, the majority view should prevail, a fact I acknowledge and accept.

At this point I would like to strongly endorse the benefit of having conducted the marriage survey. The issue of whether the definition of marriage should be changed by legislation to specifically include couples of the same sex is one that divides the community. For many years there have clearly existed strong views in favour of changing the definition and corresponding strong views against. In recent times, those in favour have generally argued for a parliamentary vote to resolve the issue, ignoring the fact that there have been numerous such votes, all of which have failed—although I do note that until fairly recently the Labor Party supported the concept of a plebiscite to gauge the position of the broader Australian population on the issue.

However, the coalition took the view that before a change occurred which would deliver such a fundamental alteration to an institution so important to our society and its history, it was vital that Australians were given the opportunity to have their say first. In my view, the primary reason for doing so was, to use a favourite term of those on the left, to foster inclusiveness following such a change. Given the very strong views held by many Australians that the traditional view of marriage, held by almost all societies on the planet for millennia—that marriage is an institution whereby a man marries a woman—should continue to prevail.

There was always a high likelihood that ramming a change to the definition through parliament without a public vote of some sort would only lead to more division, more resentment and maybe even more ill feeling directed at people in same-sex relationships. I concluded that in the event that a majority of Australians were of that view, then the best way of achieving the maximum level of acceptance of such a change would be if it were first put to the Australian people. If that were done and the outcome turned out to be support for the change, at least those who opposed the change would feel that they had been given an opportunity to have their say, to have their voice heard and to have some ownership over the result. To again use a term favoured by the Left: in my view, a public vote on the change was necessary to obtain a social licence for the change. That is, the fact that the marriage survey was held and its result will maximise the prospect that the change will be accepted by as many Australians as possible.

Incidentally, I note here the irony that many of those pushing the need to change the definition, who argue that parliament should get on with it and do its job, are the very same people who argue against parliament doing just that on issues they oppose—for example, new coalmines, high-rise developments, pulp mills, dams and so on. None represent such fundamental change so important at a personal level to so many Australians across our nation on both sides of this issue.

Although my clear preference would have been for a compulsory plebiscite, as it would have ensured the maximum benefit in terms of satisfying as many Australians as possible that the result was one they could accept, the marriage survey itself enjoyed very high returns and on the whole has achieved as strong a benefit in this regard as was open to the government.

One thing I had to personally decide when agreeing to support a process to formally obtain the views of Australians was how I would respond to their views. I made it clear early on that I would respect the views of the outcome of that process even if the majority view did not accord with my own. As the majority of participants in both Tasmania and Australia clearly expressed a view in favour of change, I have already publicly announced that I will support this bill and a change to the definition of marriage. I reaffirm that position tonight. However, I remain concerned to ensure that this change and others do not lead to laws which undermine other rights of Australians, some of which I consider to be the rights that underpin the defence of all rights we enjoy as Australians. As such, I will be looking to support amendments to this bill which seek to provide protections to the almost 40 per cent of Australians who expressed a view that marriage should stay as it has been for thousands of years and who may continue to hold that view and maybe from time to time express that view.

It is vital that in any democracy citizens are free to form and hold views, on whatever basis, counter to those held by the government of the day or as reflected in the laws in force from time to time. It is equally as important that they are able to express those views and participate in debate, public and otherwise, about the need for change to laws that are in place or are being proposed. Indeed, people's existing freedom to form, hold and debate views around the need to change the definition of marriage is what has led to this bill now being before this place. The right for them to have done so must be protected, as must the right for others to argue for change on this or on any other issue. The absolute need for citizens to have the right of freedom of conscience and freedom of speech on any issue, whether one currently in vogue or not, is what provides ultimate protection for citizens from tyranny, from creeping autocracy and ultimately from abuse of power by governments and the powerful.

As noted, from freedom of speech flow all the other freedoms. The ability to speak one's mind, to challenge the political orthodoxies of the times, to criticise the policies of the government without fear of recrimination by the state is the difference between life in a free country and life in a dictatorship. One of the most notable proponents of the link between freedom of speech and democracy is Alexander Meiklejohn. He argues that, since democracy is self-government by the people, an informed electorate is a necessary prerequisite. In order to be appropriately informed, there must be no constraints on the free flow of information and ideas. Meiklejohn says democracy will not be true to its essential ideal if those in power are able to manipulate the electorate by withholding information and stifling criticism. He acknowledges that the desire to manipulate opinion can stem from altruistic motives but argues that, even then, choosing manipulation negates, through its means, the democratic ideal. Worse—and in the true spirit of the anecdote—power corrupts and absolute power corrupts absolutely, the cumulative effect of altruistically motivated restrictions and manipulations of opinion can severely negate that ideal, leading to a lack of opposing voices and a consequential unintentional failure to understand the will of the people or even to a deliberate corruption of purpose, protected by rendering opposition illegal or silent. Similarly, US Supreme Court Justice Benjamin Cardozo wrote of free speech:

… that it is the matrix, the indispensable condition, of nearly every other form of freedom.

From time to time—you certainly notice this from time to time—the pursuit of a particular right can come into conflict with the delivery of other—for example, the right of privacy may be infringed by government seeking to deliver on obligations to ensure people are safe from crime and terrorism. In such cases, balance and proportionality need to be forefront in dealing with those conflicts. But because freedom of conscience and speech are so fundamental to the protection and delivery of all other rights, the point of balance where competing rights may infringe on them must be weighted heavily in their favour. For this reason, I will be supporting amendments that seek to achieve these aims. This will include any amendments that seek: to protect beliefs held for religious and other reasons; freedom of expression and beliefs more generally; freedom from having to express, associate with or endorse certain statements or opinions on marriage inconsistent with a person's view; an anti-detriment shield, protecting individuals and organisations who hold tradition marriage views from being subjected to unfavourable treatment by public authorities because they hold or otherwise lawfully express or act upon that conviction; protections for charities; nondiscrimination in government funding; protection of religious bodies and schools; and the right of parents to determine the beliefs and convictions that their children are taught, including the right to withdraw them from government curricula they do not endorse.

Previously, I have publicly indicated that I voted no in the marriage survey. This vote reflected my long-held view that it would be preferable were there to be no change to the definition of marriage. I hold that view, a view I still hold, for a range of reasons. At its heart is a conclusion that, no matter how you spin it, marriage in a relationship context is what it is and what it always has been: an institution in which a man and a woman commit to each other with the intention of that commitment being for life, and which institution maximises the prospect of delivering a safe and secure environment in which to raise children. There is no doubt that same-sex relationships, like any other relationship, can be enduring and have the potential for those in them to deliver and receive the life-long companionship, support, love and personal nurturing that any long-term or romantically based relationship can and should deliver. But to me, put simply, such a relationship does not contain all the necessary elements to label it a marriage.

In regard to equality of rights, almost 10 years ago a series of bills were passed that ensured that under Commonwealth laws same-sex couples would attract the same rights as opposite-sex couples. The changes were broad and comprehensive. All aspects of Commonwealth law were changed to deliver equality for all committed couples regardless of whether they were opposite or same-sex in nature. I do acknowledge that not all laws at a state level deliver the same level of equality—for example, the treatment of a non-married partner of a dying person in a de facto relationship. I suspect some state laws may still need to be considered even after the passage of this bill. I would encourage those laws to be considered and addressed as soon as possible. The bottom line is that the only so-called right that same-sex attracted couples do not currently have under Commonwealth law is to receive a piece of paper on Commonwealth letterhead. As such, there is nothing in the law now that stops them declaring their love for each other, holding a wedding, calling themselves married and living as a married couple. They just won't have a piece of paper saying so.

Proponents of changing the definition have argued, misleadingly, that what we are talking about today is changing the law back to what it was prior to the change to the Marriage Act in 2004 under Prime Minister Howard. This argument is misleading and even disingenuous, as there has never been a national law in Australia under which same-sex couples could marry. Under the legal system we inherited from the British, the understanding since time immemorial was that marriage was a matter between a man and a women. This was defined under the common law in Hyde v Hyde in 1866 when Lord Penzance opined:

I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

The change made under the Howard government was to codify what was the clearly understood position as it stood in common law and in recognition of the thousands of years of practice. It changed no aspect of the law; rather, it sought to clarify it.

Regardless, I acknowledge that it is highly likely that this bill will pass with or without amendments and will deliver change to the definition of marriage so as to incorporate same-sex couples. As noted, ultimately I will support that change out of respect for the views of the majority of Australians, but, before we get there and as foreshadowed, I intend to support amendments that provide protections for other rights and freedoms. In my first speech, 10 years ago, I mentioned the fact that fewer than 10 nations remained free and democratic for the entirety of the last century. This was no historical accident but rather a direct result of the application of the rule of law and adherence to democratic principles, and protection of the rights and freedoms that underpin the success of democracies. We need to ensure that we protect these building blocks that help to guarantee we continue to enjoy life in a free and democratic nation—the rights and freedoms that allow to us freely challenge, test, object to and debate ideas and laws that impact on Australians. For this reason we must not allow Australia to go down the path of eroding more of our freedoms, particularly freedom of speech and expression, the freedom so important to the protection of all other freedoms.