DISSENTING REPORT BY INDIVIDUAL LABOR SENATORS
The Marriage Equality Amendment Bill introduced by Australian Greens
Senator Sarah Hanson-Young seeks to amend the current definition of marriage in
the Marriage Act 1961 (Cth) (Marriage Act) from 'the union of a man and
a woman to the exclusion of all others, voluntarily entered into for life' to 'the
union of two people, regardless of their sex, sexual orientation or gender
identity, to the exclusion of all others, voluntarily entered into for life'.
Senator Hanson-Young, in her second reading speech, stated that the
purpose of the bill is to 'provide equality for same sex couples – (by
removing) discrimination under the Marriage Act so that while marriage is still
a union between two consenting adults, it is not defined by gender.
The debate over same-sex marriage is about the function and purpose of
the law in relation to marriage and not a discussion that goes to personal
motivation and attitudes. We believe every member of our society deserves to be
treated fairly regardless of their sexual orientation. It is significant
however, that in the campaigns developed around the proposed legislation, the
issue has been debated through the prism of fairness and justice. However,
there are many deeper issues that motivate our disagreement with the
proposition of same-sex marriage.
The main claim in favour of changing the law is that the current law unfairly
singles out people with same-sex attraction by not allowing them to have the
same status as people who are married. It is important to note that Australian
law has already been changed to give same-sex partners the same legal rights as
those who are married and in an increasing number of states to register their
unions. The remaining issue therefore is the definition of marriage.
It is our view that the issue is one of definition, not discrimination.
The Federal Parliament removed all inequalities in law and provided appropriate
protections regarding property issues for all relationships in 2008 when more
than eighty pieces of legislation were amended, with bi-partisan support.
In our view, changing the law so that marriage includes same-sex unions
would be a change to what marriage means. Currently marriage involves a
comprehensive union between a man and a woman. Marriage has a place in the law
because a relationship between a man and a woman is the kind of relationship
that may produce children. Marriage is linked to children, for the sake of
children, protecting their identity. It is worthy to note that in California
after their legislature experimented with same-sex marriage, the people of
California voted against the revisionist concept of marriage.
Whilst the majority report makes four recommendations supporting the
passage of the Bill, we wish to report our concerns about the report and
disagreement with all four recommendations.
It is disappointing that the report has selectively reported on
submissions which support the majority view, discounting contrary viewpoints
expressed by individuals, organisation, religious and academic institutions.
We acknowledge that men and women are free to enter into whatever
relationships they desire, as long as in doing so they do not endanger others,
under law, or in any way demean other relationships. However, we argue that marriage
as it is currently defined under the law reflects the wider societal view of
that relationship as being between a man and a woman.
We do not take as a genuine claim, the suggestion that same-sex marriage
is a fundamental human right. The European Court of Human Rights has in the
past three years twice stated that there is no human right for same-sex
marriage. We concur with the view by Australian human rights lawyer, Father
Frank Brennan AO, former Chairman of the National Human Rights Consultative
Committee, and an expert on discrimination who has written:
Instead of stating 'All persons have the right to marry', the
International Covenant on Civil and Political Rights provides: 'The right of
men and women of marriageable age to marry and to found a family shall be
recognised.' The Covenant asserts: 'The family is the natural and fundamental
group unit of society and is entitled to protection by society and the State.'
I believe our parliamentarians should maintain this
distinction, for the good of future children, while ensuring equal treatment
for same sex couples through the legal recognition of civil unions.
In considering whether to advocate a change to the definition
of marriage, citizens need to consider not only the right of same sex couples to
equality but even more so the rights of future children.
The State has an interest in privileging group units in
society which are likely to enhance the prospects that future children will
continue to be born with a known biological father and a known biological
mother who in the best of circumstances will be able to nurture and educate
That is why there is a relevant distinction to draw between a
commitment between a same sex couple to establish a group unit in society and a
commitment of a man and a woman to marry and found a family.
I think we can ensure non-discrimination against same sex
couples while at the same time maintaining a commitment to children of future
generations being born of and being reared by a father and a mother. To date, international
human rights law has appreciated this rational distinction.
We reject the notion that the Marriage Act as it currently stands
discriminates against those who choose same-sex relationships and maintain that
the Marriage Act has as its primary purpose the protection and wellbeing of
As members of the Australian Labor Party, we support the principle of a
conscience vote on matters of deep social and moral issues.
In December 2011, the Labor Party National Conference endorsed a position
to allow Senators and Members of the Federal Parliament the ability for a
conscience vote in respect to same-sex marriage. Labor parliamentarians are at
liberty to vote in accordance with their conscience in respect to same-sex
marriage should the matter come before the parliament.
The decision for a conscience vote at the Labor National Conference was
taken after robust and extended debate both at the National Conference and at other
fora of the Labor Party. The decision to extend a conscience vote on same-sex
marriage only applies to the Labor Party. The Labor Party does not have a
history of interfering in the machinery and operational methods which other
political parties may wish to exercise.
We therefore find it inappropriate and improper that a Senate committee
which itself is representative of all political parties in the Federal
Parliament, should seek to interfere in internal party matters and recommend a
conscience vote when clearly this is a matter for each political party to
decide. The recommendation is intrusive of the processes adopted by other
We reject Recommendation 1 and voice our opposition to it.
The majority committee report supports the legislation seeking to amend
the Marriage Act to recognise same-sex marriage. Little consideration was given
by the committee of possible abuses or unintended consequences of the
legislation as drafted. For example, two neighbours may elect to marry in order
to enjoy favourable taxation benefits or welfare benefits or mutual travel concessions.
Two people in a relationship seeking beneficial returns on the back of marriage
do nothing for society and the union renders marriage as meaningless. It merely
subsumes the meaning of marriage as part of relationships generally.
There is no interest for the state in endorsing relationships between
two people and, therefore, making such relationship public matters.
Relationships between two or more people remain in the private realm, not in
We therefore oppose Recommendation 2 which supports same-sex
The committee has made a recommendation to include an 'avoidance of
doubt' clause as a concession to the religiously minded community and their
churches. The 'removal of doubt' with respect to the operation of section 47 of
the Marriage Act is to reinforce the view that ministers of religion will not
be compelled to solemnise same-sex marriages.
While churches remain at the mercy of legislation for such protection,
it does not guarantee this protection, as events in Denmark and Scotland in
recent times have shown. Denmark has passed legislation to compel churches to
officiate at same-sex ceremonies and Scotland is considering same-sex marriage
with no church exemption. In addition to churches and ministers remaining at
the mercy of the government of the day, church-run schools could be subject to
anti-discrimination laws as to what they can teach on the subject of marriage.
The re-assurance which the recommendation is attempting to offer is
hollow and tactical in nature rather than a matter of substance.
We therefore oppose Recommendation 3.
The final recommendation of the majority report is to support the Bill
and pass it into law.
Throughout the debate on this legislation there has been assertion that
there is discrimination against sexual orientation and gender identity. In fact
most states have discrimination laws stating these attributes are protected.
Opposing same-sex marriage is not an exercise in discrimination nor is it a
hurtful belief. If people have genuine beliefs as to what marriage is and its
role in the regeneration of society, then people holding these beliefs should
not be subject to accusations of discrimination and homophobia.
We therefore oppose Recommendation 4 and reiterate our
opposition to this Bill and the committee's recommendations.
Furner Senator the Hon Ursula Stephens
Queensland Senator for New South Wales
Polley Senator Alex Gallacher
Tasmania Senator for South Australia
Bilyk Senator Mark Bishop
Tasmania Senator for Western
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