Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to government amendments and requests for amendments to be moved to this bill. This memorandum was circulated in the chamber on 11 November 2008.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The first amendments that the Australian Greens had to this bill, amendments (1) and (2) on sheet 5634, reflected the second amendment that we moved in the superannuation entitlements bill. Given the fact that that did not get support, I will withdraw these amendments. But I would like to point out that I think it is disappointing that, despite various parts of this legislation referring to registered relationships, we are not prepared to put that into a definition of couple relationships and therefore give same-sex couples who have entered into and committed to a registered relationship the respect and significance due to the fact that this relationship is simply one that is only a de facto relationship but they have committed to something more than that, and that is registering their relationship. I am disappointed that this amendment was not supported in the superannuation bill and I am disappointed that I am withdrawing it now because it will not get support.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

The government opposes schedule 2 in the following terms:

(7)    Schedule 2, Part 1, page 8 (line 3) to page 9 (line 36), to be opposed.

I understand it would be expeditious if I also move government amendment (1) on sheet QH401 amending item 3:

(1)    Clause 2, page 2 (table item 3), omit the table item.

The Temporary Chairman:

The first question is that part 1 of schedule 2 stand as printed.

Question negatived.

The Temporary Chairman:

The other question is that government amendment (1) on sheet QH401 be agreed to.

Question agreed to.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (3) to (6) on sheet 5634:

(3)    Schedule 2, page 24 (before line 20), before item 76, insert:

75A  Title

After ‘marital’, insert ‘or couple’.

75B  Preamble

After ‘marital’ (twice occurring), insert ‘or couple’.

75C  Subsection 3(b)

After ‘marital’, insert ‘or couple’.

75D  Subsection 4(1) (definition of de facto spouse)

Repeal the definition.

75E  Subsection 4(1) (definition of marital status)

Repeal the definition, substitute:

marital or couple status means the status or condition of being:

             (a)    single; or

             (b)    married; or

             (c)    married but living separately and apart from one’s spouse; or

             (d)    divorced; or

             (e)    widowed; or

              (f)    in a registered relationship, in accordance with section 22B of the Acts Interpretation Act 1901; or

             (g)    in a de facto relationship, in accordance with section 22C of the Acts Interpretation Act 1901.

75F  Subsection 4(1) (definition of near relative)

Omit paragraph (b), substitute:

             (b)    the spouse of the first-mentioned person or of a person referred to in paragraph (a); or

             (c)    a person who is a partner of the first-mentioned person or of a person referred to in paragraph (a):

                   (i)    in a registered relationship, in accordance with section 22B of the Acts Interpretation Act 1901, or

                  (ii)    in a de facto relationship, in accordance with section 22C of the Acts Interpretation Act 1901.

(4)    Schedule 2, page 25 (after line 25), after item 81, insert:

81A  Section 6

After “marital” (wherever occurring), insert “or couple”.

Note:   The heading to section 6 is altered by omitting “marital status” and substituting “marital or couple status”.

81B  Paragraph 7D(b)

After “marital”, insert “or couple”.

(5)    Schedule 2, page 26 (after line 20), after item 83, insert:

83A  Subsection 11(2)

After “marital”, insert “or couple”.

(6)    Schedule 2, page 27 (after line 27), after item 84, insert:

84A  Sections 14 to 27, 35, 38, 39, 41A, 41B, 42 and 48

After “marital” (wherever occurring), insert “or couple”.

These amendments relate to amending the definitions of a couple relationship in the Sex Discrimination Act, ensuring that when we talk about relationships we ensure that ‘or couple’ is inserted so that we encapsulate that this particular act will look after both same-sex and opposite-sex couples. It would read ‘marital or couple’, and obviously couple relates to same-sex or opposite-sex couples.

Question negatived.

I move Australian Greens amendment (1) on sheet 5614:

(1)    Schedule 2, page 21 (after line 16), after item 60, insert:

Marriage Act 1961

60A  Section 5 (definition of marriage)

Omit “a man and a woman”, substitute “two persons, regardless of their sexuality or gender identity”.

60B  Subsection 47(1)

Omit “a man and a woman”, substitute “two persons, regardless of their sexuality or gender identity”.

This amendment deals with amending the Marriage Act to ensure that in this particular bill, which is the general law reform bill, we enable same-sex couples and opposite-sex couples to have the same rights and entitlements as each other. There is one glaring omission from this particular bill, and that is the Marriage Act. I have flagged this numerous times. The Greens have been talking about the need for gay marriage law reform for a long time and this is the appropriate place to do this.

I have also called, as has the Australian Greens leader, Senator Bob Brown, for all sides of politics to allow for a conscience vote on this issue. It is an important issue for us to discuss. It is an important issue for us to have a decision on. When we look at the dialogue, the debate, the discussion among the Australian public, this is something that I believe people are prepared to continue talking about and would like some leadership from their parliamentarians on. There have been several polls over the last couple of years that talk about there being enormous support from the Australian public to allow gay marriage. What we are simply saying here is that if we are going to pass a suite of legislation that takes discrimination out of federal law, we have to be talking about removing discrimination in the Marriage Act as well.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I have said this before but now I think is the point in the debate to say it again and emphatically: the opposition utterly oppose this proposition and we utterly oppose the logic that underlies it. It is not discrimination against gay couples or gay people to say that marriage is an institution between a man and a woman. There has never been a culture in the whole of human history that has recognised a gay relationship as a form of marriage, until very recently when there have been changes to the law in some states of North America and some European countries. To say that an institution sanctified by centuries—indeed, millennia—of custom and practice is an institution between a man and a woman is not to say that people whose sexual orientation is other than heterosexual are being discriminated against; it is merely to describe an institution for what it is.

Senator Hanson-Young, the opposition accept the government’s good faith in this and the opposition have striven to reach a position where we have bipartisanship on the principle underlying this legislation. That principle, as was stated by the minister before, is the principal of nondiscrimination against people in homosexual relationships which resemble de facto heterosexual relationships. The way in which that has been approached has been to equate, for all practical purposes and in relation to all of the consequences, a relationship between a gay couple and a relationship between an unmarried or de facto heterosexual couple. That is the relevant equivalence. That is where we establish equality of treatment. It is not a denial of equality of treatment to say that marriage, historically a religious custom as well as a civil status, is an institution which exists between a man and a woman. The opposition utterly reject the suggestion that the position we take is a discriminatory position. We utterly reject that it is socially desirable or useful to alter in a fundamental way the character and status of marriage, which is why the previous Howard government amended the Marriage Act with the support of the then opposition, if my memory serves me correctly. That is why to intrude this issue into this legislation is really to be diverted from the non-discriminatory intent or purport of the legislation itself.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The Greens commend the government for staying true to its election promise to remove same-sex discrimination from Commonwealth law. But we believe that if we do not amend the Marriage Act to remove discrimination against same-sex couples then we will continue to see same-sex couples—who are engaged in a loving and committed relationship, voluntarily entered into for life—denied basic rights offered to married heterosexual couples. This is a discussion about whether we honestly, truly and wholly want to give same-sex couples the same entitlements and the same rights as heterosexual couples. The Australian Greens believe that discrimination such as that espoused by the Marriage Amendment Act must be overturned because freedom of sexuality and gender identity are fundamental human rights. The acceptance and celebration of diversity are essential for genuine social justice and equality. I would like all parties in the chamber to take on board the differing opinions in each of their ranks on this issue and grant senators the opportunity to vote with their conscience and vote with their feet.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Could I invite Senator Hanson-Young to tell the Senate what rights homosexual people are being denied? The whole purpose of this legislation is to cover the field to remove every area in which they are discriminated against, unless you have in mind, Senator Hanson-Young, the right to marry itself. But if that is all you are saying, your argument is completely circular.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

The one thing I can say about Senator Hanson-Young’s amendment is that it finally bells the cat on where the issue will ultimately end up—that is, the diminution of marriage and the movement of marriage to something that explicitly says nothing at all. When marriage becomes something that means nothing then it starts to assert itself on the whole structure and formulation of society. You can believe that you live in a society without rules and without process. You can believe that marriage is a completely amorphous concept that can be in any form or substance that you wish. You can believe that the primary drivers in your life are your own personal desires, that nothing in your life needs to be subjugated by a greater principle so that the rights of children who come into a relationship are protected. The whole point about marriage is that it is not about you; it is about the children and it is about that which follows after you. It is about putting behind you what you might deem to be your greatest wishes and realise that your wishes are actually secondary, and that in life there have to be certain disciplines. Although you might have a personal desire to go beyond that to encompass everything you wish, you take society to a lower level not a better level in doing so.

There is a concern that, as things by degrees and by incursion come in as to the definition of marriage so that it is encroached upon piece by piece, in the end we move to a position where marriage fails to mean very much at all and in the end it is just a word that lacks any meaning. As to this amendment by Senator Hanson-Young, at least I give credence to her being sincere but I believe that this is the path that we are moving down by degree with some of the legislation that has gone through to date.

Obviously, I fervently disagree with Senator Hanson-Young’s amendment. I would like to explicitly state that I know members both within the National Party and within the Liberal Party see this as a titanic issue. If this battle—and it will indeed be a battle—is not joined and if our position in the Senate is not maintained, then we will do our nation a huge disservice as we move the nation to being one of an amorphous, nebulous type of society which has no form or structure. It might be one that explicitly allows us every one of our own personal desires but does not reflect the fact that the nature of life is more than all that. It is a discipline to a wider cause and the wider cause brings protection to the greater number of people who live within it. So given that process, I firmly stand against this. As I said, and I say this as representing the views of others, just because we do not vote against these things you must not take that for one moment as recognition that we are voting for them.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I indicate that the government will not be supporting the Australian Greens amendment moved by Senator Hanson-Young, consistent with the position that the Labor Party have indicated quite clearly for many years in the context of this debate. We made very clear prior to the election our election commitment to removing discrimination against same-sex couples. We will deliver on that if the passage of the legislation can be assured, and certainly we have put legislation before the parliament to deliver on that election commitment. We have also said consistently, when this issue has been debated on a number of occasions in this parliament, that we regard marriage as a union between a man and a woman. We support the definition of marriage that exists within the Marriage Act.

In relation to the points made by Senator Joyce, if I might perhaps respond very briefly, this is not an issue about personal desires or discipline, Senator Joyce; this is an issue about the removal of discrimination from a particular category of relationships in Australia. We on this side of the chamber—the government—do not believe that the removal of discrimination against same-sex couples undermines marriage. We do believe that it is time that this nation stopped treating people differently under Commonwealth laws or programs as a result of the nature of their relationship or the sex of their partner. We have previously made our view clear, and we continue to make it clear, of marriage as being a union between a man and a woman. We do not see, nor do we believe, that removal of discrimination against same-sex couples undermines marriage in any way. Hopefully the chamber can proceed with this amendment prior to moving on to consideration of government documents.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

The question is that Australian Greens amendment (1) on sheet 5614 be agreed to.