Page 4782 - Week 13 - Wednesday, 11 November 2009
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accepted with great reluctance by the government, as we had proceeded on the basis of the commonwealth’s then assurances that it would allow state and territory governments to decide their own position on the issue of recognition of same-sex relationships.
To date, the rationalisation provided by the commonwealth for its opposition to our 2006 bill, the Civil Partnerships Act, has been the repeated but unsupported assertion that the legislation was inconsistent with the commonwealth’s Marriage Act. Our disappointment in the commonwealth position has been compounded by a lack of logical argument presented against the 2006 act which, as we all now know, was finally found to be acceptable to the commonwealth only when it had been sufficiently watered down.
The much vaunted federal review of legislation to remove discrimination against same-sex couples has made some significant gains. However, as we all suspected at that time, that belated recognition of rights was qualified, once again, to isolate same-sex couples from the rest of the community. The commonwealth government, quite deliberately, did not allow same-sex couples to attain truly equal rights under law for relationships, surrogacy, adoption or IVF conception. The reforms were, in the terms of the recognition of the rights of all citizens, only windows; an exercise in well-intentioned yet adverse discrimination. They gave same-sex couples greater access to legal rights but did not do this across the full spectrum of rights. More importantly the reforms did not acknowledge or respect same-sex relationships as being equal in our society to opposite-sex relationships, and that is, in our view, a fundamental element of the legal recognition of civil partnerships.
I would now like to turn to some of the elements of this debate, and the first is issues around the application of the Marriage Act. The commonwealth Marriage Act clearly intends to cover the field in relation to relationships of marriage between a man and a woman. That may have been a debatable motion before 2004, but any doubt about the matter was removed by the then Howard government’s amendments to the Marriage Act, which now states that “marriage” means the union of a man and a woman to the exclusion of others voluntarily entered into for life.
Former Attorney-General Philip Ruddock said in his explanatory memorandum:
The purpose of the Marriage Amendment Bill 2004 … is to give effect to the Government’s commitment to protect the institution of marriage by ensuring that marriage means a union of a man and a woman and that same-sex relationships cannot be equated with marriage.
It is important in this debate that we understand the significance of those amendments and, in particular, the debate that is now occurring in the commonwealth parliament to remove those discriminatory provisions from the Marriage Act, which is currently being considered by a Senate select committee.
The local bill restores provisions to the Civil Partnerships Act that allow a formal ceremony to take place. That is no more inconsistent with the Marriage Act than is the process of registration itself, and the commonwealth government has been
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