ADDITIONAL COMMENTS BY SENATOR BIRMINGHAM AND SENATOR BOYCE
We support the direction of the findings of the majority report of the
inquiry into the Marriage Equality Amendment Bill 2010 and the intentions
underlying its recommendations. These comments are intended to add to the
issues already canvassed in that report.
Why do we have a Marriage Act?
This is a threshold question that is generally overlooked in this
debate. Several submissions called for laws regarding marriage to be repealed
and for marriage to instead be a private contract between two people, including
that made by Mr Trevar Chilver:
Marriage is a relationship between individuals, and not a
relationship between individuals and their government. It is my opinion
generally that every law regulating marriage in Australia should be repealed,
not that any more should be introduced.
This is a theme expanded upon by the Hon Dr Peter Phelps MLC in his
speech during the recent New South Wales Legislative Council debate on same-sex
marriage. Dr Phelps stated:
Privatisation of marriage would allow people to marry the way
they want to: individually, privately, contractually, with whatever ceremony
they might choose in the presence of family, friends, or God. Under a
privatised system of marriage, courts and government agencies would recognise
any couple's contract—or, better yet, eliminate whatever government-created
distinction turned on whether a person was married or not.
Marriage is an important institution. But the modern mistake
is to think that important things must be planned, sponsored, reviewed, or
licensed by the government.
Such views recognise important principles such as small government,
individual freedom and personal responsibility. Above all else they recognise
that marriage existed long before there were statutory definitions of it and
that, at its heart, marriage is a personal commitment between two people.
The first Act to define marriage in a civil statute occurred in England
in 1754. The driving forces of this intervention by the state in these
personal contracts between two people were identified in Dr Phelps' speech, who
indicated they were the 'culmination of a long struggle the courts had with the
evidentiary proof of marriage; which itself was only really a problem when allegations
of bigamy and/or divorce proceedings arose'.
It was the dissolution of marriage that drove state intervention in marriage
rather than its creation. Today, that remains an important factor in the need
for some regulation, along with various recognitions afforded to married
couples across our legal system. Although many of these recognitions and
procedures to resolve the dissolution of a relationship are also afforded to
de-facto couples, the clearest way to establish eligibility is through marriage.
It is worth remembering that there are several distinct roles the act of
getting married plays, not all of which are applicable to all marriages. These
a public declaration and celebration of love between two people;
a commitment made before God or in accordance with religious beliefs;
a legal agreement entered into in accordance with the laws of Australia.
The first of these roles involves a decision that is intensely personal
and maintains the likeness of a private contract between two people. The second
of these is also a personal matter between the two people getting married and
their church or religious institution. In a free and secular society like
Australia, the role this second factor plays should be respected and protected
by our laws, but not dictate how our laws are shaped.
The last of these roles is the only role the state or the parliament
should deal with. It is not the role of the Marriage Act to regulate love. Nor
is it the role of the Marriage Act to regulate religion. It is for the Marriage
Act to set the terms for a legal agreement between two people.
The civil institution of marriage
The terms for this legal agreement that constitutes the civil
institution of marriage have evolved with the views of society. The Hawkesbury
Nepean Community Legal Centre stated in their submission that:
The rules governing marriage have evolved significantly over
the years. For example, wives are no longer treated as the property of their
husbands, we now prohibit rape in marriage, we allow interracial couples to
marry and we allow and recognise divorce.
As a civil legal institution marriage is regulated by the Marriage Act
and is subject to amendment by Parliament. It is our opinion (formed not just
by opinion polls or numbers of submissions received, but through many
conversations across the community) that the views of modern Australian society
towards same-sex marriages are evolving. Acceptance is growing, with seemingly
increasing community support for same-sex marriages to be accommodated within
the Marriage Act.
The Hawkesbury Nepean Community Legal Centre also highlighted that the
civil institution of marriage is distinct from the religious institution of
While marriage takes various forms across many different
cultures and has assorted religious histories attached to it, marriages
performed by the State are civil, not religious, in nature. It is imperative
that religious interests are not privileged over the right of all citizens to
non-discrimination and to be treated equally under the law.
This point is important, as many of the arguments made to the inquiry
against allowing same-sex marriage were based on religious teachings or beliefs
about the religious institution of marriage, not the civil institution of
It must be recognised and respected that for many Australians marriage
has a special religious meaning. For many, the terms of entering into a
marriage and dissolving a marriage are governed as much, if not more so, by the
rules and beliefs of their church. Their rights should not be infringed by our
civil laws and The Very Reverend Dr Peter Catt of Saint John’s Cathedral makes
clear that the Marriage Equality Amendment Bill 2010 does not do so:
My understanding is that The Marriage Act will continue to
enable the conduct of both civil ceremonies and those conducted by ministers of
religion. I therefore commend the fact that the proposed legislation will not
affect the right of churches or other religious groups to celebrate marriage
according to their own understanding and religious beliefs.
It is important to be crystal clear on this point. No religion or
minister of religion should be expected to conduct or recognise a marriage that
is not in accordance with their teachings and faith, including same-sex
marriages. As the majority report makes clear, any change to our marriage laws
must protect these religious freedoms.
However, these issues do highlight a blurring that sometimes occurs between
community understanding of the civil institution of marriage, as distinct from
the religious institution of marriage. We believe there would be some merit in
renaming the Marriage Act as the Civil Marriages Act and drawing a sharper
distinction in both the legislation and, hopefully, the public consciousness
between the civil institution of marriage and the religious institution of
Strengthening the institution of marriage
Although the issues canvassed to date focus on the legal reasons for having
marriage laws, their limited role compared to the importance of the personal
contract between the marrying parties and their different nature compared to a
religious marriage, there is also a societal benefit to marriage that would
appear to warrant facilitating as many people as possible being able to make
this commitment to each other.
It is often said that the best form of social security is the family.
By affording same-sex couples the right to marry we will be strengthening the
ties not just of their relationships but across their respective families,
which benefits not just those family members but society as a whole.
In its submission to the inquiry, Australian Marriage Equality
highlighted an editorial in a 1996 edition of The Economist, which
Marriage remains an economic bulwark. Single people...are
economically vulnerable, and much more likely to fall into the arms of the
welfare state. Furthermore, they call sooner upon public support when they need
care—and, indeed, are likelier to fall ill (married people, the numbers show,
are not only happier but considerably healthier). Not least important, marriage
is a great social stabiliser of men.
Marriage by its very nature creates interdependence. With
interdependence couples are more likely to rely on each other, as well as the
extended families of their partners, than they are to rely on the state. Strengthening
societal support structures and reducing potential reliance on government may
be key benefits of providing equal access to marriage for same-sex couples.
It is also claimed that married couples are healthier and happier. Thus,
there is a potential social good to be achieved in same-sex couples benefiting
from the love and support marriage provides.
British Prime Minister David Cameron made similar points when declaring
his support for marriage equality and committing to lead his Conservative Government
to legislate in favour of allowing same-sex marriage:
I stood before a Conservative Conference once and I said it
shouldn't matter whether a commitment is between a man and a woman or a man and
a man, or a woman and a woman – and you applauded me. Five years on we are
consulting on legalising gay marriage, and to anyone who has any reservations I
say this: it's about equality. But it's also about something else: commitment.
Conservatives believe in the ties that bind us; that society's stronger when we
make vows to each other and support each other. So I don't support gay marriage
in spite of being a Conservative, I support gay marriage because I am a
Contrary to submissions claiming that same-sex marriage would undermine
marriage we believe that the opposite is likely to be true. The nature of one
couple's marriage should have no bearing on the nature of another couple's
marriage. Underlying each set of vows is a unique relationship that will
succeed or fail regardless of whom else does or does not get married.
However, discrimination does divide us as a society. Current marriage
laws treat loving, long-term relationships between two heterosexual persons
differently from loving, long-term relationships between two homosexual
persons. So-called compromises like civil unions would still divide, by
creating two classes of relationship, one or both of which are prohibited to
some couples in our society.
Evidence from Scandinavia suggests that where same-sex marriage is
legalised there has also been an increase in heterosexual marriage, suggesting
marriage as an institution benefits from equality as an increasingly recognised
element of discrimination is removed. It is noted in the majority report and
numerous submissions that the discriminatory constraints imposed by the
Marriage Act are increasingly being objected to by heterosexual couples
contemplating or undertaking marriage.
Some have argued that creating equality for heterosexual and homosexual
couples under marriage laws discriminates against others, especially those in
polygamous relationships. This argument is well refuted by the submission of
Mr Tim Wilson:
Polygamous relationships are relationships of choice. Homosexuality
is not. I doubt any member of this committee would dispute that there is a
natural desire for one person to build a relationship with another person,
whether heterosexual or homosexual.
Ultimately, the fact that same-sex couples want to be able to marry
shows their commitment to upholding and strengthening this institution and its
foundations of love, commitment, responsibility, monogamy and stability.
A matter of conscience
After many years of debate about the position of their platform on the
issue of same-sex marriage, the Labor Party changed its stance late last year
and accorded its Members and Senators a conscience vote on the matter. These
changes take time and, though mindful of the honourable desire of the Leader of
the Opposition to keep the commitment he made on this issue at the last
election, we hope that in time the Liberal Party will also allow a
conscience or free vote on the subject of same-sex marriage for its Members and
Opinion polls, inquiry submissions, electorate office correspondence and
views expressed to us in day-to-day conversations all indicate that opinion on
same-sex marriage is divided amongst both Labor voters and Liberal voters. It
would follow that it would be divided amongst their representatives too, as
evidenced by the public support for same-sex marriage from prominent Liberals
like former Premiers Jeff Kennett
and Nick Greiner,
as well as current state Liberal leaders Campbell Newman
and Isobel Redmond.
Having been granted a conscience vote by their leader Barry O'Farrell,
four Liberal Party Legislative Councillors joined with two National Party
Legislative Councillors to support a recent motion in the New South Wales
Legislative Council calling for amendments to the Marriage Act that would
facilitate same-sex marriage.
However, the existence of divided opinion alone is not sufficient to
warrant a conscience vote. But the fact that individual views on this matter
are almost entirely informed by moral, ethical and religious values, from which
people within different political parties reach differing conclusions, does
make it an obvious area for a conscience vote. The personal nature of the
thinking that should go into a parliamentarian forming an opinion on this matter
was well addressed by New South Wales Nationals Legislative
Councillor, the Hon Sarah Mitchell, in her speech to the aforementioned debate
in the NSW Parliament:
This is the third conscience vote that I will have
participated in since becoming a member of this House. All three matters have
been challenging and have required me to make considered and personal
decisions. While it may sound simplistic, I reached my decisions on the
previous conscience votes based on what I thought in my head and what I felt in
my heart. My decision on the motion before the House is made on the same basis.
We also note that the Liberal Party has a strong tradition of providing
greater freedoms to its representatives than does the Labor Party. Not only are
Liberals free of Labor's binding pledge and able to cross the floor on matters
without facing expulsion from our Party, but on substantive policy matters
Liberals have always operated with a free or conscience vote where their Labor
counterparts have and, indeed, have afforded such freedoms to the
representatives on several occasions where Labor did not. These are traditions
that should be valued.
Finally, we will briefly address two further matters before concluding
on the substantive issue.
Same-sex marriages are now performed in many countries, including South Africa,
Argentina and Spain. Many Australians have wed overseas and returned home to
find that a ceremony recognised overseas is not recognised in their home
country. For the love and commitment of some Australians to be recognised by a
foreign government but not their own is something we should avoid. As Mr Wilson
said regarding the mutual obligation between citizens and their governments in
If same-sex couples are expected, for the purposes of the
law, to pay the same tax rates and carry the same civil obligations as married
couples, then basic civil rights should correlate with those responsibilities.
Civil unions or similar arrangements can now be registered in different
ways in different Australian states and territories. For administrative
simplicity, legal simplicity and cost reduction it makes no sense to have
different schemes operating across Australia. Such a situation results in
Australian same-sex couples having different recognition and rights, or none,
depending on which state they live in or choose to move to, while heterosexual
marriages are recognised uniformly across Australia. These approaches, while
well intentioned, are simply adding new layers of discrimination when the
simple solution of marriage equality would provide a far easier and better
For all of the arguments that may be made about marriage and this issue,
there remains the simple fact that under our civil laws this intensely personal
commitment made between two people, for which there is no comparable
alternative available, excludes some in our society. As former Liberal Senator
Christopher Puplick AM and Mr Larry Galbraith put it in their comprehensive
Marriage is the only form of legally recognised relationship
in which the partners are required to explicitly acknowledge that they are
mutually committed to each other as faithful life partners. No other legally
recognised relationship provides the same public recognition or guarantees of
certainty and security. This significant difference points to the one serious
remaining inequality. Heterosexual couples have the option of marrying. Homosexual
couples do not.
This situation is neither fair nor equitable. In our opinion, as
recommended by the majority report, this inequity warrants change.
Senator Simon Birmingham Senator
Senator for South Australia Senator
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