Page 3581 - Week 12 - Tuesday, 22 October 2013

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consistent laws for same-sex marriage. The amendments that I will be proposing later this morning do not change the substance of the bill, but they do clarify its scope and operation. With these amendments, the government is responding to concerns expressed in relation to possible inconsistency between the area of operation of this bill and the commonwealth act.

The amendments seek to put beyond doubt the subject matter of the bill or the area in which it is intended to operate. The amendments do this by adopting a specific definition of “marriage” as a marriage between two adults of the same sex rather than as a general definition. The amendments make clear that the bill is a law with respect to same-sex relationships and same-sex marriage and that it has a distinct legal status not covered by the commonwealth law.

The government is aware of the opinions that have been given on this topic. The opinions address the issues facing the states in respect of their relationship with the commonwealth under the constitution on the topic of marriage and the Marriage Act. Our position diverges from theirs in only two respects: first, our position is that the test for determining inconsistency between a commonwealth law and a territory law is a test of concurrent operation. It involves questions of statutory construction rather than constitutional limitations on legislative power. Our position reflects longstanding views on the operation of section 28 of the self-government act. So to the extent that they have been considered by the courts, these views have been supported.

Secondly, and in any event, our position is that the task of determining the areas in which the two laws operate and, therefore, the extent of any inconsistency is an exercise of substance and not of form. It is not essential in legal terms, and it is undesirable in policy terms, to confine the language of the legislation to state marriage, as has been previously suggested, or same-sex marriage, as has been recently suggested. We believe that if the bill is challenged a court will focus on the real issues and will not be swayed by the choice of language.

No-one should believe the myth of separate but equal. It was not true in the United States before the American civil rights reforms. It was not true in South Africa before apartheid was ended. It was not true in Australia before women were given the right to vote. And it was not true before the 1967 Aboriginal referendum. Any alternative status that nonetheless provides for the same financial benefits as marriage in and of itself can amount to segregation. (Extension of time granted.)

In the third reading speech of the New Zealand bill, the Hon Maryan Street cautioned against a tendency to drive some people to the margins of society and then to despise them for being there. This bill, the first Australian law for same-sex marriage equality, can end this discrimination and allow everyone to belong. I commend this bill to the Assembly.

Question put:

That this bill be agreed to in principle.

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