REPORT OF PROCEEDINGS BEFORE
STANDING COMMITTEE ON SOCIAL ISSUES
INQUIRY INTO SAME SEX MARRIAGE LAW IN NSW
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At Sydney on Friday 15 March 2013
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The Committee met at 9.30 a.m.
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PRESENT
The Hon. N. Blair (Chair)
The Hon. J. Barham The Hon. C. Cusack The Hon. G. J. Donnelly The Hon. N. Maclaren-Jones The Hon. H. M. Westwood (Deputy Chair)
CHAIR: Welcome to the second public hearing of the inquiry by the Standing Committee on Social Issues into same-sex marriage law in New South Wales. As a Committee, we welcome the opportunity to investigate social issues of significance to the New South Wales community. I am confident this is another inquiry about which we can make concrete and feasible recommendations. This inquiry has generated significant public interest, with the largest volume of submissions ever received by a parliamentary inquiry in New South Wales. I express my thanks on behalf of the Committee to all those who have taken the time to provide us with a written submission.
The terms of reference for this inquiry focus on the legal issues surrounding a possible same-sex marriage law in New South Wales. As such, the Committee dedicated its first day of hearings to focus on the law. The terms of reference also ask the Committee to consider changing social attitudes to marriage, and this is the focus of today's hearing. This morning we will hear from Family Voice Australia, the Catholic Archdiocese of Sydney, Australian Marriage Equality, the AIDS Council of New South Wales [ACON], the Gay and Lesbian Rights Lobby, and the Ambrose Centre for Religious Liberty. We are pleased to hear from a number of stakeholders who have volunteered their time to assist the Committee, for which on behalf of the Committee I offer my thanks.
The Standing Committee on Social Issues has a proud history of conducting its inquiries with integrity and respect. I ask that all of you attending these hearings, whether as contributors, the media or members of the public, to respect the hearing process and the witnesses who have volunteered their time to give evidence. It is my responsibility to maintain the integrity of these hearings, and I take that responsibility very seriously. Today's hearing is open to the public and is being broadcast live through the Parliament's website. A transcript of today's hearing will be placed on the Committee's website when it becomes available. The Committee previously resolved to authorise the media to broadcast and video excerpts of its public proceedings. Copies of the guidelines governing broadcast of the proceedings are available from the table by the door.
In accordance with the Legislative Council Guidelines for the Broadcast of Proceedings, a member of the Committee and witnesses may be filmed or recorded. People in the public gallery should not be the primary focus of any filming or photographs. In reporting the proceedings of this Committee, the media must take responsibility for what they publish or what interpretation is placed on anything that is said before the Committee. Witnesses, members and their staff are advised that any messages should be delivered through the attendants or the Committee clerks. I advise that under the Standing Orders of the Legislative Council, any documents presented to the Committee that have not yet been tabled in Parliament may not, except with the permission of the Committee, be disclosed or published by any member of such Committee or by any other person.
If you should consider at any stage during your evidence that certain evidence or documents you may wish to present should be heard or seen in private by the Committee, the Committee will consider your request. However, the Committee or the Legislative Council itself may subsequently publish evidence if they decide it is in the public interest to do so. Finally, I remind everyone to turn off their mobile phones for the duration of the hearing. I welcome our first witnesses, Dr David Phillips and Mr Graeme Mitchell, from Family Voice Australia. All witnesses will be sworn prior to giving evidence. I ask that each witness states their full name and job title and swear either the oath or the affirmation.
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GRAEME ALLAN MITCHELL, State Officer, Family Voice Australia (NSW and ACT), and
DAVID MICHAEL PHILLIPS, National President, Family Voice Australia, sworn and examined:
CHAIR: Would you like to make a short opening statement? If you would, could you please keep it to no more than five minutes? There is no need to repeat anything from your submission.
Dr PHILLIPS: I am pleased to do that. Thank you for the opportunity to appear before you today. I want to make three brief comments: about Family Voice, marriage, and government. Family Voice is a Christian ministry. We work with and receive support from all mainline Christian denominations. We are politically neutral. We have no connections with any political party and we do not endorse parties or candidates. We seek to propose policies which are for the common good of society, and we do so on the basis of evidence that supports the views that we propose.
Our concerns are limited to three main areas: family, faith and freedom. Today we are primarily dealing with areas relating to family, of which marriage is at the core. On the question of marriage, marriage is not defined by government; it is recognised by governments, and it is recognising essentially a biological reality of life—that when a man and a woman unite sexually what often results is a child is conceived, and subsequently born. That is a reality of human existence.
Children who are born as a result of such a union are very vulnerable at birth and remain dependent on their parents, typically, with decreasing dependence, for the next 20 years or so. It is the universal experience of mankind that children do best when raised by their biological parents who are committed to each other in a stable, lifelong relationship. It is that stable, lifelong relationship for the benefit of the children who result from the sexual union of a man and woman that we call marriage.
The question then is about government; why does the Government get involved in these sorts of questions? Some suggest that the Government should withdraw from the whole area of marriage law and leave it to private individuals to work out as they see fit. I think there is a governmental role. If you think that the overall role of government is to provide for the peace, security and longevity of the nation, of society as a whole, it should be adopting policies that will secure the long-term welfare of the nation. For that to happen a couple of things are needed. One is that we need to have a future population. Children need to be born in order to produce a citizenry of the future, and in those countries where the fertility rate is down to not much more than one the expectation is that the population of those countries will halve in the next 50 years or so and, if that continues, an entire nation or community or culture can disappear simply through children not being born. So, governments have a legitimate interest in encouraging the birth of sufficient children to replace the current generation.
Secondly, children who are born need to grow up to form balanced, productive, responsible citizens. We do not want to produce a generation of unemployed, welfare-dependent, drug-addicted criminals. So, the Government has an interest in ensuring the next generation of Australians are productive, employed citizens— responsible citizens. To encourage that, governments should be encouraging the environment most likely to produce citizens of that nature, and that is historically why marriage has been fostered, recognised, honoured, rewarded and given special benefits and privileges, because marriage produces the greatest likelihood of the future population of Australia being the kind of population needed to sustain the nation. That is the summary of our case and I conclude my introductory remarks.
The Hon. HELEN WESTWOOD: Thank you, Dr Phillips and Mr Mitchell, for joining us this morning and providing your evidence to our Committee. They are complex deliberations. If I can ask you some questions particularly regarding the statement you have just made, that marriage is for the purpose of reproduction. I am wondering whether you think those marriages of, perhaps, a woman who may be post- menopausal and an older man, are invalid?
Dr PHILLIPS: No. What we are talking about is the institution of marriage, which is a set of perceptions and expectations. That is the overall purpose of marriage, but not every couple is currently fertile. There are some couples who marry and would like to have children and for whatever reason are unable to, but they are still within the framework of the institution of marriage which does have that purpose in general terms.
Mr MITCHELL: I would like to add to that and to what Dr Phillips has said. Marriage's main purpose is to make sure that every child born has two responsible parents, a mother and a father, who are committed to
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the child and committed to each other. To achieve this goal it has never been necessary, and it would never be possible, for society to require that each and every married couple bear a child.
The Hon. HELEN WESTWOOD: So do you think that those marriages where there is never any chance of a couple, even if they are heterosexual, having children are valid and should be permitted by government?
Mr MITCHELL: Yes, I do.
The Hon. HELEN WESTWOOD: You spoke about marriage between a man and a woman as the institution that produces the best citizens for the future of the nation. Do you think it is the only type of marriage where children are produced and who go on to be good citizens?
Dr PHILLIPS: What I said was it is the best environment, the best context, for raising children with that objective in mind. I am not saying it is the only kind. Some children manage to succeed in life in the most adverse circumstances. Yes, children do succeed in a wide variety of situations but government policy should aim for the best and should be encouraging the environment most likely to produce a good outcome.
The Hon. HELEN WESTWOOD: Do you believe there is evidence to support that and, if so, can you point me to that evidence please?
Dr PHILLIPS: There are mountains of evidence that support the best possible environment for children is where the child grows up with their biological parents who are committed to each other in a lifelong union of marriage. I can send you some material but there is plenty of evidence available saying that of all the possible family types that is the best possible environment.
The Hon. HELEN WESTWOOD: There is also evidence of children who have been raised in a same- sex relationship and particularly a study of lesbian mothers who have raised children, and those longitudinal studies have shown that children raised in those families also do very well and grow up to be good citizens who are contributing very well to society and to the wellbeing of their communities. Are you aware of that research?
Dr PHILLIPS: A lot of research has been done. I am a research scientist by training. I have a PhD in physics. I am familiar with research practices, not in the social sciences but similar principles apply. When doing social science research it is important to make sure the design of the research is a valid design. Many of the studies that have been published are not valid designs. One of the common things in social science research is getting a group of people to survey, and many of the studies are volunteer surveys and suffer from volunteer bias. Whatever the means of collecting the volunteers, it is preselecting a particular kind of audience, and it is widely recognised that volunteer surveys are inherently biased and unreliable. Secondly, one needs to do a control study, of looking at the sample population and then a comparative population, and some of the studies have used completely unmatched control studies where the target survey and the control survey come from different demographics and different populations entirely, and that is not a valid study.
Another element is that very often studies ask questions of parents, "How do you think your children are growing up?" Many parents think their kids are doing very well. That is giving a biased perspective, particularly if it is a volunteer survey because people want to say how well their kids are doing. What is needed is a survey where you actually ask adult children what their experience is, given that they have had a particular background in the past. A large survey has been done, which was a properly randomised survey, which has no volunteer bias that did ask the adult children of different family types what their experience of life was. One outcome, for example, is that the rate of child abuse within lesbian-raised contexts is 10-times the rate in the stable married biological parent family. That is just one indicator.
The Hon. HELEN WESTWOOD: Could you provide the Committee the reference to that research?
Dr PHILLIPS: Yes, that is the Regnerus study. There are other studies. There is a study undertaken, the Fourth National Incidence Study of Child Abuse and Neglect— a report to the Congress of the United States Department of Health and Human Services, so a government study. They looked at abuse and neglect. They lump abuse and neglect together as maltreatment.
CHAIR: Dr Phillips, we are a little short on time and need to move to the next member for questions.
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Dr PHILLIPS: Sure. There is plenty of evidence I can supply.
CHAIR: You are more than welcome to table that at the conclusion. Now that we have the reference we can look that up. We will move on.
The Hon. GREG DONNELLY: I have six minutes so I will need to be quick. Thank you both for coming along today. We appreciate you coming here to give us the opportunity to ask you some questions. I will be asking you to elucidate some comments and observations in your submission. Do you have that handy?
Mr MITCHELL: Yes.
The Hon. GREG DONNELLY: In the second last paragraph on page 2, in the context of looking at some legal opinion about the issue, specifically the constitutional issues associated with the question of marriage, you make the statement:
Professor George Williams holds a minority view, claiming that while federal law takes precedence in matters relating to marriage as a man-woman union, it would be open to individual States to pass laws for a different kind of union, namely a "same- sex marriage".
Would you like to, if you can, elaborate and elucidate that point as best you understand the law?
Dr PHILLIPS: We are not lawyers.
The Hon. GREG DONNELLY: Right.
Dr PHILLIPS: We have a layman's understanding of the law. One or two quick comments: State law is only valid within the boundaries of the State. Any Act passed by New South Wales would cease at the border. Someone who was purportedly married under some State legislation in Albury who walked across the bridge to Wodonga would no longer have that status. So marriage is a universal institution. The Commonwealth Constitution Act says quite clearly in section 51 (xxi) that marriage is a Commonwealth power and that makes a lot of logical sense because you want people who are married to have that marriage recognised throughout Australia. So that is very practical.
The Hon. GREG DONNELLY: Without cutting you off, and I am sorry to move through this rather quickly, but in the next paragraph you talk about the Commonwealth Attorney General's second reading speech on 24 June 2004 when the Marriage Amendment Bill was being debated in the House of Representatives. On the next page your submission states that it was specifically designed "to provide certainty to all Australians about the meaning of marriage in the future" and you note "emphasis added". Are you endeavouring to make the point others have made in the inquiry that in that amendment to the Marriage Act the Commonwealth Government in fact was making it abundantly clear that one of the key elements of marriage was, namely, a man and a woman, that it was providing a very clear definition for everybody to understand what marriage was and it was not, in fact, an exercise of creating a dichotomy—if I can use that word—between heterosexual marriage and same sex marriage, opening it up for the States and Territories to legislate on same sex marriage?
Dr PHILLIPS: My understanding is that it was confirming the understanding of the definition of marriage that has been around since time immemorial. When Australia was federated in 1901 it adopted English law at the time, which was an English Act in 1857 and subsequent cases in British law that define marriage essentially in terms that are now in the Marriage Act, the union of a man and woman exclusively and voluntarily entered for life. Essentially, that was the understanding in British law in the 1800s. It was inherited by Australia in 1901. It was legislated in 1961 in the Marriage Act and for marriage celebrants it was already in the Act but it was copied from the part of the Act dealing with marriage celebrants into the definitions. So it was just reinforcing the definition that had been around for centuries. In fact, before 1857 when the British law legislated it was a matter of church canon law, which goes back 2,000 years and beyond—it goes back another 1,000 years BC. So we really are dealing with a definition of marriage that has been unchanged for at least 3,000 or 4,000 years.
The Hon. GREG DONNELLY: Can I quickly jump to pages 7 and 8 of your submission. Under the heading "Misleading opinion polls" you give your views about opinion polls and the use of opinion polls in establishing community views on matters, including, obviously, this matter of same sex marriage. Did you want to elucidate or add to anything you have said?
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Dr PHILLIPS: Did you ever see the Yes, Prime Minister program on opinion polls?
The Hon. GREG DONNELLY: No.
Dr PHILLIPS: Sir Humphrey said, "What answer do you want? Try this as a question." I cannot remember the exact words, and the answer was, "Oh, Yes I agree with that" and then Sir Humphrey phrased it a different way and said, "Oh, yes I agree with that." He was leading the witness in both cases but leading to totally opposite conclusions. The example I have quoted was an example of leading the witness. The survey was biased in the way it was structured. Even neutrally carefully constructed surveys do not necessarily reveal what people actually believe. I think the evidence of that is in the republic referendum in 1999 where Gallup opinion polls were saying that 55 per cent supported the republic. When people were actually able to vote confidentially on the matter when it was a serious vote, it was 55 per cent against. If it is a telephone poll people may feel pressured by perceived political correctness to answer in a particular way. Yes, opinion polls provide some information but not necessarily the last word on the subject.
The Hon. JAN BARHAM: The example you used is interesting because many people put forward that the referendum was biased in that it did not get the outcome.
Mr MITCHELL: Yes.
The Hon. JAN BARHAM: Do you deny that society has changed in its support for marriage equality? Do you not think that is a real manifest change in society's view of marriage and same sex relationships?
Mr MITCHELL: I believe certainly there has been a change but the question is whether that change has been for the better. I would be the first to admit that the institution of marriage has been under attack for quite a while, long before these current issues came to be debated. We would argue that the institution of marriage is worth preserving because of the social benefits that Dr Phillips has referred to. Therefore, to risk undermining it further is not wise or prudent.
The Hon. JAN BARHAM: You have referred to "better", "attack" and "undermining": You are thinking any move towards acknowledgment of same-sex marriage denigrates or devalues the institution of marriage, is that your fundamental principle?
Mr MITCHELL: Again, I have some papers here that I am happy to provide the reference to after the hearing. Based on evidence from Europe which indicates that in nations or States where same-sex marriage has been legalised there is a knock-on effect to heterosexual marriage, in fact rates decline.
The Hon. JAN BARHAM: That would be interesting to have.
Mr MITCHELL: I will happily provide that, yes.
The Hon. JAN BARHAM: In your submission you refer to the fact that there is no real discrimination because every man can marry a woman and every woman can marry a man. You make the point that there is no significant rights enhancement that would come from recognition of same-sex marriage. What I am interested in is that you do not believe that general society thinks that marriage is a statement of the love and respect that people have for each other and wanting to make that known to the rest of society. You do not accept that general understanding of what marriage means why it is valuable for people to have the right to make that statement to the rest of society?
Dr PHILLIPS: It is perhaps worth noting what the United Nations has said in The International Covenant on Civil and Political Rights. Article 23 states:
Article 23
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
From the United Nation's perspective the purpose of marriage is to found a family. In society generally why do we throw rice at married couples? Except these days people tend to frown on throwing rice because it creates a mess afterwards. The symbolism of that is hoping that the couple will produce children. The marriage services
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in a church context certainly talk about children being a blessing of that sexual union. The whole community concept about marriage is about honouring a relationship which will produce children, which will provide a context in which they grow up with male and female role models. Fathers and mothers parent differently and they each contribute something different to the child which is of benefit to the child. It is the family context of children, of role models for males and females, that is a package deal we celebrate as marriage as a community.
The Hon. JAN BARHAM: It is interesting to have that clarified. I am sure there would be a lot of people that would be surprised by that because family is quite a concept that is recognised by the United Nations and other institutions as being much broader than the one you have stated. I am interested that on page four you also raise that there is "overwhelming" evidence that children raised by two married biological parents achieve better outcomes. There is evidence, and I am wondering if you have been made aware of it, that children from same-sex relationships actually do very well in terms of their well-being, their sense of confidence and how they relate in the world. You seem to be denying that evidence does exist.
Dr PHILLIPS: I think I answered that question before. There are studies which purport to provide evidence of the kind you are citing but one needs to look at each study to see whether it is validly conducted. The people who have done that have looked at some 50 studies that purport to support the view you are advancing and all 50 of them are invalid studies for one reason or another: They are volunteer studies, they do not have a proper control group, they are not asking the children who have experienced that growing up and they are not using objective tests—so all of those are invalid.
The Hon. JAN BARHAM: You do not accept the Australian Psychological Society's position?
Dr PHILLIPS: You would need to give me the reference.
The Hon. JAN BARHAM: Just to draw you on the point that you raised. The study you quoted, Regnerus, has been refuted, are you aware of the controversy that has arisen from that paper?
Dr PHILLIPS: I am a research scientist, I know that all research is surrounded by controversy and—
The Hon. JAN BARHAM: —but exactly the points you raised have been used against that particular article.
Dr PHILLIPS: That particular paper, which I have read and I have it here, was a random study, so it passed that tick. It was not a volunteer study. It did not ask the parents how well is little Johnny doing. It asked the children who had experienced growing up in a variety of households, married, cohabiting, same-sex lesbian, same-sex male homosexual, all those contexts, a battery of some 40 questions. Many of them were objective questions. For example, it asked whether the children employed or not: Either they are employed or they are not employed. they did a five per cent significance test and they had a large enough sample size to determine significance whereas Many of the studies you are quoting have sample sizes of a couple of dozen which is not statistically significant. This was a sample size of 3,000, which is large enough to be of statistical significance. I have studied statistics and I know a little about that. On the question of employment children growing up in a lesbian household had significantly higher rates of unemployment. The comment there is it is very often the father who introduces a child to the wider world of work and when they miss out on a male influence growing up the consequence is that they do not find employment.
CHAIR: Dr Phillips, time is short.
Dr PHILLIPS: I can support the position I have advanced.
The Hon. NATASHA MACLAREN-JONES: Following on from the concept of research, are you aware of any broader examples or lessons we can learn from overseas in when considering this bill, whether there are elements for change or there are negative elements, whatever you might have?
Mr MITCHELL: There is another factor that is quite interesting if you look at some of the publications and research. In places like the Netherlands where same-sex marriage has been legal since 2001 the take-up rate of homosexuals marrying is remarkably low and, after an initial level of interest, has been declining ever since. It seems to suggest that there is symbolism in gaining rights to same-sex marriage but not much real interest in entering into it. Some figures I have, I can leave the reference for the committee, indicate that the rate of breakdown of such marriages is much higher than among heterosexuals.
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The Hon. NATASHA MACLAREN-JONES: It has been raised in some submissions and we have heard from witnesses at the previous hearing, that one of the obstacles, ignoring the constitutional concerns raised, is the use of the word "marriage"?
Mr MITCHELL: Yes.
The Hon. NATASHA MACLAREN-JONES: Do you think if the New South Wales Parliament was to look at civil unions it would address that issue or make no difference?
Dr PHILLIPS: The question I raised earlier is why would governments legislate for marriage at all, because some people are saying Government should get out of the field and allow people to make private arrangements. The question is do we want to be shrouded in bureaucracy? We have more and more laws passed each year, why do governments pass laws at all on this issue? The answer should be, and it is not: In order to provide for the future welfare of the nation. And providing for the future welfare of the nation means privileging, benefiting and recognising marriage, a lifelong commitment into which children are born and raised.
There is no rational reason for governments to become involved in registering housemates, for example. Two people may simply choose to share accommodation. I am aware of, for example, two single ladies who for company just want to share accommodation; they are not lesbians, they just want to share accommodation; or there may be a couple of blokes in their younger years who are not homosexual but share accommodation to economise on cost. Why would governments register flatmates, for example? They would not. So why would the government register flatmates who happen to be homosexual and are engaged in sex in the bedroom? There is no rational reason for registering that relationship because it does not benefit the nation by producing the next generation of our population.
Mr MITCHELL: It sometimes helps to ask, "If marriage never had anything to do with children and families, why would governments be interested in being involved in it at all?" There is just no reason for registering friendships or partnerships or anything like that at all, unless it is to do with families and children and their welfare.
CHAIR: I do not know that you have answered the question that the honourable member was asking. We do have in New South Wales a register for same-sex relationships. You are aware of that?
Dr PHILLIPS: Yes.
Mr MITCHELL: Yes.
CHAIR: A lot of your evidence this morning and also in your submission is around the institution and the protection of the institution of marriage. If the State was to go down the path of taking the registration of relationships one step further and allowing registration of a civil union, how does that undermined or impact the institution of marriage, considering that they would be two separate things particularly if the term marriage was not used? I am interested in your view on that.
Dr PHILLIPS: We have consistently around Australia opposed registration of relationships, opposed civil partnerships and opposed civil unions. We have opposed every move in that direction for the reason that I have just outlined: There is no reason for governments to become involved and—
CHAIR: Could you clarify the reason? If it is not a marriage in the sense of the term that you are talking about, how does that impact on the traditional marriage which, for example, my wife and I have? I am just curious as to how that impacts or undermines marriage itself if it is not a marriage but a civil union, which is already recognised under State laws, and other States have civil union legislation, and de facto relationships are recognised through the same type of institution here.
Mr MITCHELL: Perhaps the answer to that question is in two parts. As Dr Phillips has indicated, not everyone is necessarily happy with laws that have been passed in New South Wales in the past. So we do not necessarily endorse the laws that are already in existence in this State. But our experience and knowledge of other jurisdictions is that this seems to be simply a stepping stone to advance the cause of same-sex marriage. Therefore we think it is better to decline relationship registers because that inevitably seems to be the way it
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goes; it is never sufficient in its own right, it seems; it is only a stepping stone used by advocates of same-sex marriage to advance the cause for what they call full marriage equality.
CHAIR: But did you not say earlier that in jurisdictions that did so register there was quite a low take- up?
Dr PHILLIPS: Yes.
CHAIR: How does a low take-up add a stepping stone? If not very many people are registering in other jurisdictions, if we were to look at registering a civil union how does that add a stepping stone?
Mr MITCHELL: It is a reference to the paper that I referred to in my first answer, in the sense that once same-sex marriage is achieved that has a knock-on effect on marriage rates overall in the whole society. So it does have an impact in European countries where this has been done. So it actually detrimentally affects heterosexual marriage in various ways.
Dr PHILLIPS: I am probably repeating that in different words, but I think the history of moves around the world where same-sex marriage has purportedly been introduced shows that it has been a step, by step, by step process through registered relationships, civil partnerships, civil unions and finally same-sex marriage. So it is a progressive thing. We are saying do not go down the road at all, just do not take step one; and if you are already past step one, do not take step two. We are just saying do not progress it any further. The experience in Europe which my colleague referred to adds an element of confusion. As children are growing up their expectations about what the future will hold will be confused. Because there are civil partnerships, civil unions and different things available, and there is marriage, they will think, "What is it for me?" It introduces an element of confusion, and that undermines the understanding of the institution, which is all about perceptions and expectations. And if it undermines the public understanding of the nature of marriage, then people say, "Well, I don't know; maybe none of it is important; maybe I will just shack up and live together and cohabit."
What has happened in those countries that have gone down the path of legislating civil unions, same- sex marriage and so on is that the degree of cohabitation has increased and the degree of children born out of wedlock has increased. I think in Scandinavian countries something like 50 per cent of children are born out of wedlock. It is well known that the most dangerous circumstance for a child to be born in is out of wedlock; in particular, if a single mother is cohabitating with a bloke who is not biologically related to the child, the rate of child abuse in such circumstances is 10 to 40 times that of a stable marriage. So it undermines the institution, people feel confused, and it is not a road that we should be going down. We should be going down a road of reinforcing marriage as it has been understood for the last 3,000 years or so.
CHAIR: Just very quickly before we wrap up: You would agree though that your wish that governments would not be legislating in the area of marriage is certainly something that we cannot achieve; that governments, certainly at a Federal level, legislate in this area. I think it would be very difficult to reverse that. Would you agree that there certainly are governments legislating in this area right throughout the country, no matter in what form it is?
Dr PHILLIPS: Governments legislate for marriage; that is a Commonwealth power. But in legislating for marriage, that is marriage as it has been understood for 3,000 years.
CHAIR: The point is that they are legislating for it. I understand you are asking that they remove themselves from the field.
Dr PHILLIPS: No, we are not asking them to remove themselves from the field. We are saying we would like the Commonwealth Government to legislate for marriage as it has been understood for 3,000 years, as defined in the 2004 Act.
Mr MITCHELL: As it is now.
CHAIR: I thought your term was that governments should step away and allow it to be left up to private individuals.
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Dr PHILLIPS: I was saying that is an argument that is being proposed by some people in the community. We are answering it by saying: no, we think there is a legitimate place for legislating on true marriage—the exclusive union of man and woman for life, but nothing else.
CHAIR: Gentlemen, unfortunately time has beaten us this morning. I thank you for your submission and also for appearing before the Committee this morning and giving your evidence.
Dr PHILLIPS: Thank you very much.
(The witnesses withdrew)
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MARY JOSEPH, Research and Project Officer, Catholic Archdiocese of Sydney,
PETER COMENSOLI, Auxiliary Bishop, Catholic Archdiocese of Sydney, and
ANTOINE KAZZI, Former Research Officer, Catholic Archdiocese of Sydney, sworn and examined:
CHAIR: Would you like to make a brief opening statement?
Bishop COMENSOLI: I would like to if that is okay. Thank you for the opportunity to speak to you all today. I will take our submission as being read and leave it at that, so my remarks today will address the question of marriage within a philosophical framework. The very concept of marriage, as a uniquely human reality, is not simply what an individual or a group of individuals wants to assert it to be according to one's own personal choice. Nor is marriage the kind of union that is based on one's sexual orientation or gender identity. Rather, marriage is a reality common to all of us as human beings that can be objectively determined.
While a person or group of persons may want to interpret other kinds of unions as being like a marriage for them, that does not make such unions a marital kind of relationship. Personal positions are not objectively grounded but subjectively asserted. It is from the unique kind of relationship that laws about the definition of marriage have come about. First the reality, then the law pertaining to it. In Australian Federal law, therefore, marriage is only recognisably a marriage if it is a relationship entered into between a man and a woman.
Marriage has been universally understood as an intimate community of life and love—emphasising both of those—between a man and a woman for the whole of life. This is not something particular to Christians, or even religious people. Rather, it is the tried and tested tradition of all human societies since civilisation began. The word itself, the definition it has taken on and the legal framework given to it all developed from this basic premise. Marriage is an ordered reality endowed with its own unique purpose and meaning for the good of the spouses and for the good of procreation and the rearing of offspring. Marriage makes no sense if it is not ordered to both love and life. Take either of these two elements away and marriage as a unique reality ceases to be.
Marriage is the living sign that our male and female bodies are made for each other. Our sexual complementarity is not an arbitrary or socially constructed thing; the sexual nature of our bodies—male and female—is itself an objective reality, which is then manifested in society. What is the case biologically is the foundation of what ought to be the case socially and culturally. There is a reason why the word "offspring" is used in conjunction with marriage: it is a reminder that children are not the outcome of a manufacturing process but of a gift of begetting. Children are the fruit of sexual union—springing from: offspring. When a third party becomes involved in the having of children then they are no longer truly a consequence of lovemaking. Sexual love ceases to be the cause of new life.
It is often asserted that legalising same sex marriage would end a legally entrenched discrimination. But the accusation of discrimination only arises because the meaning of marriage is being arbitrarily changed: by denying the sexual meaning of our bodies as male and female; by removing the link between sex and life; and by reducing "marriage" to any sexual commitment of love without the concomitant commitment to life. We might say that the real discrimination going on here is towards those who insist on holding up what has always been held: that love with life is at the heart of marriage.
The unique personal dignity of each and every child, and the natural link between sex and life, together affirm that the raising of our children by their own mum and dad is best practice. Children best flourish in a family environment where they are raised by both their natural mother and natural father, who themselves are in a life-long commitment of love. Of course, we all acknowledge that best practice is not always achievable. There are many families who, through various circumstances, end up in situations that are not what they had hoped for, but they can be—and often are—full of goodness and happiness for both parents and children. That does not mean we should begin by discarding best practice legislatively.
In the push for equality, and the claim that such a change would ensure fairness for all, the notion of same-sex marriage actually advocates for a lesser choice for families, something less than best. A legal framework in favour of same-sex marriage would deliberately choose to set the bar at something less than the optimum for families by weakening what is good for the most vulnerable in our community. You do not build a strong society by deliberately choosing to adopt a policy that is less than best practice towards our kids. Real
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discrimination occurs when the personal lives of adults are legislatively prioritised over the good of our children.
Marriage certainly helps to build strong families, and strong families mean a stronger community, as Premier Giddings down in Tasmania has recently remarked. But this strengthening of families and societies depends on ensuring the right kind of sexual union is upheld. That best-practice union is marriage between a man and a woman, for the sake of the children that they have. Parliaments like the New South Wales Parliament have a duty to ensure that what makes for best practice is enshrined in law. Thank you for listening and of course we are open to questions.
The Hon. HELEN WESTWOOD: Thank you for being with us this morning. I want to acknowledge what a wonderful week it has been for the Catholic family across the world with the election of Pope Francis. I am sure you all still really delighting in his appointment.
Bishop COMENSOLI: Thanks for remembering him.
The Hon. HELEN WESTWOOD: If I could just go to a couple of points that you raised in your opening statement. You talked about "like" marriages, in whatever form they take, are not equal to marriage. That is one of the fundamental terms of reference that we are looking at. In fact, what we will be creating, should New South Wales go down this path, is a same-sex marriage. We acknowledge in the evidence that we have received so far that it will not be marriage as defined by the Federal law; it will be a same-sex marriage in New South Wales. What would be your objection if we went down that path?
Bishop COMENSOLI: I think the key issue there for us would be in the use of the word. The word "marriage" has come out of the reality of this coming together of a male and a female for love and for life, both of those being important. That has come to be defined in terms of the word "marriage". If we are talking about what is marriage, then there is the definition of it. To start talking about same-sex unions as marriage is to take this unique reality and apply it to something that is different. If the New South Wales Parliament is looking at some sort of legislation around same-sex unions for whatever purposes you see that that is to be done, it is not marriage—at least as I am presenting it to you today. The use of the word itself is problematic.
The Hon. HELEN WESTWOOD: If New South Wales were to go down the path of civil unions for same-sex couples, would you have any objection?
Bishop COMENSOLI: In the Catholic tradition we like marriages and it is the proper place in the Catholic tradition, the proper place for sexual congress and having children is within marriage. Anything outside of that—so a male and a female in a sexual relationship that is not marriage, two males, two females or some combination of all of them is not marriage. Marriage in our understanding is this coming together for the appropriate activity of sexual love that leads into the having of children.
The Hon. HELEN WESTWOOD: One of the elements of your statement and your submission that struck me was when you referred to the history of marriage. The evidence that the Committee has received from other witnesses is about a change that marriage has taken as an institution in that it is no longer for life for many couples and our laws have accommodated that. Often marriage also does not result in the production of children. Do you accept that marriage has changed? Do you still see it as only as it was originally defined when our Constitution was enacted?
Bishop COMENSOLI: I go well back before the Constitution was enacted. The definitions, and even the word itself "marriage" and the way it has developed in legislative frameworks for centuries have all come out of the reality. There has been development around all of that and that is understandable as we develop as human beings in all sorts of ways. Does that mean you can arbitrarily change what is the reality in which we have all these legislations and the word "marriage" around? Our point is that, no, the reality holds onto this bond between male and female, sexual love that leads to life. If I were to put in as a quip, we have got just as much problem with heterosexual relationships that are outside of marriage as we do with homosexual relationships.
The Hon. HELEN WESTWOOD: Are marriages that do not result in offspring valid?
Bishop COMENSOLI: As marriage is between a male and female, yes. It is the ordering. It is the sense of what is the ordering of our maleness and our femaleness and sexual congress is connected to that. If the order is in that direction, say, how it is ordered and in which direction it is going, its purpose and its meaning,
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does not mean that an individual couple might choose not to have children or an individual couple might not be able to have children. They are personal realities but it does not change the order of marriage.
The Hon. GREG DONNELLY: I refer to your opening statement and pick up on a theme that I understood you were endeavouring to make and giving some, what I understood, as primary focus to the philosophy or the essence of marriage. I take that as a distinction from what would be necessarily a religious perspective, in other words, whilst you come here as a representative of the Catholic Archdiocese of Sydney and what you say is obviously consistent with Catholic teaching on marriage, you are endeavour to focus the attention of the Committee to something more than just a religious perspective on marriage. Is that right?
Bishop COMENSOLI: That is certainly the case. Marriage existed long before the Christian faith commenced with Christ. I come back to this sense of the concept of marriage—I do not know when the word came about—male and female, sexual congress for life, producing kids has been in all societies from civilisation. How long does that go back? Eight thousand or 10,000 years.
The Hon. GREG DONNELLY: On the bottom of page two of your submission to this inquiry you state "respect for the natural reality of marriage" and on the top of page three the statement of Professor Robert George from Princeton University in the United States of America. It states:
Marriage is a community formed by a man and a woman who publicly consent to share their whole lives in a type of relationship orientated towards begetting, nurturing and educating of children together. This openness to procreation as the community's natural fulfilment distinguishes this community from other types.
Does that statement essentially reflect the philosophical argument that you have enunciated in your opening statement about marriage?
Bishop COMENSOLI: Yes, I would be happy enough to say that is the case, yes. Is there some aspect of that?
The Hon. GREG DONNELLY: No, I am just making sure that we have a clear understanding that we are talking about more than just a religious notion but also about a human relationship.
Bishop COMENSOLI: Yes. The Christian faith brings something to marriage, not marriage brings something to the Christian faith—well, it does as well. What the Christian faith brings to marriage is recognising that particular bond as a reflection of the bond between God and the church. That is the value-added bit, if you like.
The Hon. GREG DONNELLY: Is it your submission in looking at that definition and that notion of marriage that other relationships exist as a matter of reality for human beings but they are not marriage?
Bishop COMENSOLI: Yes. I am in lots of relationships; they are not marriage. Mr Kazzi is in a marriage relationship; Miss Joseph is not, sorry Mary. Yes, there are any number of ways in which people come together. There are all sorts of ways in which households come together and one of the things that the Committee has to deal with is legislation around household realities. Marriage is marriage, it is a different kind of reality: that is the emphasis I would be putting on it.
The Hon. GREG DONNELLY: Is it your submission that your secular definition, not a religious definition of marriage, that the issue with respect to that attention given to children—in other words the procreation, nurturing and educating—is a key element and it is perhaps that element which really gives the State, if I can describe it that way, a real key interest in endeavouring to preserve and maintain this relationship as a social institution? Do you agree with that?
Bishop COMENSOLI: Yes. I do not want to presume to be able to tell the Committee what to do in terms of the legislation but it strikes me that legislative responsibility is one of putting in place that which protects certain structures that are good for society. If there is a breaking down of that then other forms of legislation are put in place to overcome where it does not reach that. That was what I was trying to capture using the phrase "best practice". So recognising that there is all sorts of different unions and households in the State, and that is the way it is, but when it comes to the legislative aspect of things, why not legislate for best practice? That was the bell again.
The Hon. GREG DONNELLY: I was gonged out.
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Bishop COMENSOLI: I love the use of bells.
The Hon. GREG DONNELLY: Your 60 seconds starts now.
Bishop COMENSOLI: Hello?
The Hon. JAN BARHAM: In relation to this idea that there is a natural reality of marriage, do you think everyone gets that?
Bishop COMENSOLI: No.
The Hon. JAN BARHAM: Your interpretation of it?
Bishop COMENSOLI: No. I would quite readily admit that lots of people do not necessarily get it.
The Hon. JAN BARHAM: Your view of what our role is, you said, is to protect, but surely our role is to reflect. I mean, we are here to represent the broad range of views and the idea is that we are taking on board the broad range of views. My interest is this thing about the natural reality of marriage, as you have described it. Can you provide any other evidence as to why that is the case?
Bishop COMENSOLI: I might answer, and I might ask Antoine if he can speak of some of the research that has been done in that regard. I heard it and it was also addressed by the previous people who were here. But anyway, the first thing is that I would take it that there are many laws that you enact in the Parliament that lots of people do not get, so you do not enact for the sake of just reflecting; you also enact for what is good.
The Hon. JAN BARHAM: Represent.
Bishop COMENSOLI: But you do not enact laws representing those, for instance, who—using the same analogy—do not get marriage as a one man and one woman idea. There are plenty of people out in our society who would be into polyamorous relationships and are looking for that to be legislated for. Just because they do not get it and just because you might represent all those people, it does not mean you legislate for those things.
The Hon. JAN BARHAM: My interest is that you are presenting that your point of view is the natural reality whereas we have heard, and the Senate inquiry has heard, from other religious organisations who are supportive of same-sex marriage. It is your point of view.
Bishop COMENSOLI: Oh, right. I see what you are getting at. Yes, fair point.
The Hon. JAN BARHAM: You are purporting that that is the natural reality, and that is the difficult point that I find in this. I just wondered if you had reflected on that yourself.
Bishop COMENSOLI: Yes. I did not quite pick that point up. It is a valid point, yes.
The Hon. JAN BARHAM: You refer to the fact that changing that definition would profoundly affect all Australians—this idea that there is an inherent negative. I wonder whether you have put your mind to the fact that there may well be a positive in changing that marriage idea.
Bishop COMENSOLI: As a concept, there are difficulties with changing the understanding of marriage. With the reality of individual people's lives, certainly we recognise that individual households, whether it is in the context of the marriage or in the context of the civil union or in the context of whatever, are relatively good or bad. You are not making a judgement on that relative individual situation, but on the concept. Did you want to hear from Antoine at all—I don't know—or Mary?
Miss JOSEPH: If I could just briefly answer your previous question, I think you were saying you hear from people who do not seem to share a view of the natural reality of marriage.
The Hon. JAN BARHAM: Yes.
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Miss JOSEPH: I think there is evidence that many people in the community, although perhaps they would not fully share it, they do sense that there is something unique about marriage in terms of its connection to children. That was found in the Ambrose Centre study, which we have cited on page 10 of our submission, and which was very interesting. It showed that initially when the people were asked, "Do you support same-sex marriage?", they would tend to give a positive response out of concerns for discrimination. When they were asked, however, to think about, "Is there something unique about marriage as a relationship that is oriented towards children and the social institution of mum, dad and the kids?", a majority did express support for that idea of marriage, that concept of marriage.
So I think we need to be very careful not to take sort of a preliminary or an initial support for same-sex marriage as meaning that our community no longer puts any value on children having a mother and a father, and the value of marriage as it has always been understood. I think the community does still value marriage and there is evidence to show that when they are asked about that connection, they do regard it as very important.
The Hon. JAN BARHAM: So that denies, or is taking away from, the fact of the respect, the love, the support and caring that might be provided by a same-sex couple for children. That is not regarded as highly or equally, or given any recognition at all, that that is possible for the betterment of society?
Bishop COMENSOLI: All acts of love are good. That is how I would answer that. All acts of love are good. Now, what is better comes into play at different times, and certainly what is better for children seems to be around a lifelong committed relationship with their natural mum and dad.
The Hon. JAN BARHAM: Yes, but it is not always lifelong, is it?
Bishop COMENSOLI: That is right. That is the individual reality, that it is not always lifelong, but again I come back to that reality of individual lives are better or worse, just as our individual lives are better or worse. I am better or worse at my celibate life and you are in terms of yours. I do not know what yours is, so—
CHAIR: We might move on, on that note.
Bishop COMENSOLI: That is the individual thing.
The Hon. HELEN WESTWOOD: That could be an interesting survey.
CHAIR: No, no. We have run out of time, I am sorry.
Bishop COMENSOLI: Oh, right. I did not even hear the bell that time.
The Hon. HELEN WESTWOOD: Some of us could be celibate, but not by choice.
The Hon. GREG DONNELLY: There is provision for supplementary questions.
The Hon. CATHERINE CUSACK: I had better plough forward. I just want to ask about the concept of best practice marriages and best practice families.
Bishop COMENSOLI: Yes.
The Hon. CATHERINE CUSACK: It does seem rather harsh to imply that there are bad practice families. I mean, the concept of best practice implies to me that they are second and third class. I suppose as a liberal, every child is special, and there is this issue that individuals are all worthy and all ought to be respected.
Bishop COMENSOLI: Yes. I agree with you wholeheartedly on that.
The Hon. CATHERINE CUSACK: It is difficult to judge somebody's household and relationships on the basis of being best practice or not best practice. It seems very harsh when the church also practises acceptance of all things.
Bishop COMENSOLI: It is a turn of phrase, of course, so I am not wedded to the best practice as a phrase, but it is trying to capture some sense of what, particularly when we come to children—this is the key issue here, our children—what do we know to be the kind of arrangements that work best for them, and the
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arrangement of a natural mum and dad in a lifelong committed family structure with the children and the opportunity for their children to also know their biological siblings, and so on. There is your basic structure. So what is good? This is good. Coming back to the Hon. Jan Barham's points before, or that I was making to her, there is the relative goodness of everyone's relationships within their own family structures and we make judgements about that all the time. Oh, yes; well we do—assessments. Not moral judgements; I am not talking about that, but assessments. We do that in terms of legislation around when things are really bad and certain intervention has to happen. There is a relative reality about that individually. As a concept husband-wife, lifelong natural parents with their children and siblings, that is the best.
The Hon. CATHERINE CUSACK: That is the best.
Bishop COMENSOLI: It is in that sense that I am holding up.
The Hon. CATHERINE CUSACK: If a child was being abused in a relationship, could it not be the case that it would be best practice for the abusive father to leave the relationship, and for the abuse and violence going on in the home to cease?
Bishop COMENSOLI: The best practice phrase relates to the concept, the individual situation of good or badness. In your example, it is a terrible situation; so, yes, action should be taken. I have got no problems about that.
The Hon. CATHERINE CUSACK: But in the eyes of the church, that family sounds second-class because there is only a mother.
Bishop COMENSOLI: The using of "class" language is yours.
The Hon. CATHERINE CUSACK: You said best practice.
Bishop COMENSOLI: It certainly would not be my language. I am not certainly looking at it that this is second-class.
The Hon. CATHERINE CUSACK: If someone is not "best practice" then what term would you use to describe them?
Bishop COMENSOLI: I am not referring to best practice as someone. I am referring best practice to a concept of marriage. I am not referring it to individual persons. I would never do that; that would be discrimination of an unjust kind.
The Hon. CATHERINE CUSACK: What would be the term you would use to describe a class of families that are not best practice? Perhaps below best practice?
Bishop COMENSOLI: How did I phrase that? I phrased that in a way—I will refer back to how I actually said it because I cannot quite remember the phrase I used. I am not going to find it immediately so I will not waste the time. Mary is going to give me an answer in a minute. I am trying to avoid this putting of a label on people. I really do not want to put labels on people. That is really quite against what we believe. It is holding up this sense of a relationship that works as a structure.
The Hon. CATHERINE CUSACK: The problem I have with best practice is that it does appear to me to label, and that can be quite hurtful.
Bishop COMENSOLI: As I said, I am not committed to the particular phraseology. Maybe I need to have a little think about what might be a better language around that, so thank you.
The Hon. NATASHA MACLAREN-JONES: I am interested in looking at the concept of discrimination. It has been raised in some of the submissions that marriage under the current definition discriminates against those who want to enter into a same-sex union. In your submission you include a quote from Cardinal Pell as follows:
It is not unjust discrimination against homosexual couples to uphold marriage as between a man and a woman. Marriage and same-sex unions are essentially different realities …
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I ask you to elaborate on your view in relation to civil unions, ignoring the issue of the marriage if you would prefer. If the New South Wales Parliament were to look at civil unions would you predominantly support it or not?
Bishop COMENSOLI: The concept of a civil union has, if you like, a law-like similarity to marriage so there are difficulties with that. I have been using a little bit the language of households and I am doing that specifically. We can talk about various households and within those households, please God, there is loving relationships going on all over the place. It is not always the case, as we know, but it is to be encouraged that whatever the circumstances are that they are working towards what is good. The idea of a civil union as a legislative term has an awful lot of marriage-like aspects to it, so I would be uncomfortable with that. What I am not uncomfortable with is making sure that whatever the circumstances people find themselves in, in their personal decisions, that within those circumstances right relationships are developed.
No-one has a right to unjustly discriminate against a child simply because that child might have as their caring parents a same-sex couple or their grandparents or two siblings or whatever. The child needs to be protected in legislation. The carer of someone in a household needs to be protected in legislation. There are the means by which legislation might offer these protections and respect the persons themselves without going down the line of legislation for civil unions which are marriage-like in its sort of structure. The two people sitting on either side of me know a bit more about the law questions.
Mr KAZZI: Will you repeat the question please?
The Hon. NATASHA MACLAREN-JONES: My question was predominantly around your views in relation to the distinction between civil union and marriage and whether or not you would support the concept of same-sex unions?
Mr KAZZI: In terms of the benefits and responsibilities for defacto couples, which includes same-sex and heterosexual couples, as I understand it there is equal footing now with marriage relationships. What is in issue is the notion of marriage. It is more than a piece of paper and it is more than a bundle of rights. I think the assertion here is that it matters to children, and without using any particular reference to class or however you want to put it, researchers look at different relationships and they try to assess how children fare in order to advise government on which laws to implement. From my reading of the research, there is a lot of reliable research, methodologically, robust research, which says that when you have children that are brought in by loving couple and they are with their biological mum and dad, and they are raised in that particular environment, they fare best. That is not to say all the other children do not do well at all—some of them may very well excel more than some of the married biological children—but it is to say overall there is an increased likelihood that they will fare well in that situation. Now call it what you will—marriage or something else—that is the particular relationship that according to the research appears to be the most beneficial for child outcomes.
I would submit when government looks at these sorts of questions, their interest is in the common good and trying to make legislation that is going to benefit the maximum number of people without discriminating against a small group. But we have to be careful that in order to achieve a good end we do not go about it by improper means. Like I have said, the rights and responsibilities seem to be equal for all couples; we are now really disputing about what is in fact a marriage. If I may say in response to the earlier question about this being our view of what the reality of marriage is, I might clarify—and the Bishop will correct me—but I do not think it is just our view. I think the idea is that there is a reality and the Catholic Church appears to understand this reality. As I understand it, in Australia the Constitution did not define what marriage is. It has always been understood from the old English case Hyde v Hyde what marriage was.
Only after the recent debate in respect of same-sex marriage, as I understand it, did the Howard Government decide to define what marriage was. Again it was not a definition to say, "This is marriage. This is what we say it is." It was simply a reaffirmation of the reality that has always been understood in law. As I am recognised as a man, a law passed to say that I am a woman will have no effect because I remain what I am. I think we need to clarify that our view is not that marriage is what we think it is, which is subjective, but we are talking about an objective reality.
CHAIR: I appreciate your consistency. You say for the same reasons that you do not believe in same- sex marriages, you do not believe in heterosexual relationships sexually before marriage as well?
Bishop COMENSOLI: Or just outside of, yes.
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CHAIR: I appreciate your consistency there but you have used the term "law-like relationships". Do we not already have that in New South Wales where we have the Relationships Register, we have any children in such a relationship covered by laws, superannuation entitlements, particularly in the disillusion of those relationships, are also covered by laws, and property disputes, again if we are talking about disillusion of defacto or same-sex relationships, are covered by laws. Would not a civil union be the next step? If we take away the issue of marriage, would it not be just a rounding out of what we already have here in New South Wales?
Bishop COMENSOLI: Most of the other laws that you have just mentioned strike me as not marriage- like laws; they are laws around the protection of household rights and what have you.
CHAIR: They are laws that are there to treat people that are in marriage-like relationships—that is, defacto or existing same-sex relationships.
Bishop COMENSOLI: But they are laws around making sure that as individuals people are protected in terms of, say, the care of someone else or they are being cared for by someone else, in terms of children and so on. So, the civil union concept is very marriage like.
CHAIR: But it is not marriage. If it is a civil union it is called marriage. Are we just defining the term, is that the issue, or is it because it is marriage like is the issue?
Bishop COMENSOLI: The issue is it is marriage like, yes, whereas those other laws are not necessarily marriage like.
CHAIR: My last question—and I am not Catholic—I guess was prompted by the events of this week. Obviously with the new Pope, there were Catholics who are obviously openly gay expressing their view in relation to the new Pope's stance in this area. If I was a practising Catholic but also gay, what standing does the church hold for people of your faith who are also gay or in these types of relationships? I am just curious as to how that is presented?
Bishop COMENSOLI: You want a bit of theology, do you? I can give you a bit of theology. The first thing I want to say is I hope everyone has picked up very clearly that I have not been talking about homosexual relationships. I want to make sure that is quite clear.
CHAIR: As I said, I have acknowledged your consistency for those other relationships you have been talking about.
Bishop COMENSOLI: Thank you. It comes back to the sense of our own personal lives. Each of us is called to live as fully as possible according to the way that God has made us. This is a theological argument. I do not know how—
CHAIR: Maybe I should explore that at some other time.
Bishop COMENSOLI: Like everyone, like me—
CHAIR: I can reword my question.
Bishop COMENSOLI: I can do it with myself, actually. I am a committed celibate. I have taken on that life. That does not free me up to go off and have a sexual relationship with a woman or another man, whatever. It is outside of marriage. It comes back to this sense of being within marriage. Whether I am homosexually oriented or heterosexually oriented or intersex and so on, it does not come down to that particular question when it comes to marriage. Marriage is about this biological aspect, male and female, not orientation and not gender identity.
CHAIR: That is consistent with your opening remarks about all of those relationships outside of marriage.
Bishop COMENSOLI: Yes. Maybe we have been a bit easy on heterosexuals lately. That was a joke.
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(The witnesses withdrew)
(Short adjournment)
SOCIAL ISSUES COMMITTEE 18 FRIDAY 15 MARCH 2013
RODNEY CROOME, National Director, Australian Marriage Equality, sworn and examined, and
MALCOLM LOUIS McPHERSON, NSW Convenor, Australian Marriage Equality,
GEOFFREY THOMAS, Member, Australian Marriage Equality, and
MICHAEL HERCOCK, Member, Australian Marriage Equality, sworn and examined:
CHAIR: I welcome our next witnesses from Australian Marriage Equality. Would someone like to give a short opening statement? Please keep it to no more than five minutes and you do not need to repeat anything in your submission.
Mr CROOME: Thank you for giving me an opportunity to talk to you today on behalf of Australian Marriage Equality as the National Director and also, of course, as someone who is intimately involved in a similar debate in Tasmania last year. I will start by talking a bit about marriage equality and allowing same sex couples to marry. For us it is about the recognition fundamentally of our equality as human beings and of our fundamental humanity. We believe marriage strengthens relationships and allows greater participation in family life. We reject civil unions as a substitute for being able to marry because they do not provide the same level of social recognition or inclusion as marriage. It is no surprise that entering civil union is far less popular amongst Australian same sex couples when they are surveyed on this issue than the prospect of being able to marry.
This brings me to the issue of State same sex marriage laws. We believe such laws are important because they allow couples to enter legal marriages, which is the aspiration at the core of the marriage equality movement. They bring hope to couples who should not have to wait any longer. Committee members will be aware that in the coming weeks same sex couples will begin to marry in Britain, New Zealand and France, yet our Federal Parliament continues to baulk at the prospect of amending the national Marriage Act. State laws provide an important and perhaps inevitable step towards reform at a national level. We should not forget that in Australia the reform of relationship laws has always begun at the State level and migrated to the Federal level subsequently. That was the case with heterosexual marriages, recognition of opposite and same sex de facto relationships, and with State civil partnerships and relationship registries.
This State recognised same sex de facto partners in 1999, well before the Commonwealth did and well before some other States did. The fact that the Commonwealth and other States had not done that did not hold you back. I have seen evidence from last week's hearing in which some parties felt that State same sex marriage laws would be unconstitutional. But we urge you to put these views in perspective. As some of the more credible witnesses said, there is an arguable case both ways. In such situations we believe it is the role of legislators not to second-guess what a court might decide in the future but to do what is best for the people of New South Wales. In our mind there is no doubt that allowing same sex couples to legally marry and take vows of lifelong commitment to each other is a social good not just for those couples, but for their families and the entire State.
There has also been some criticism in the evidence presented that a State same sex marriage law somehow is different or geographically limited or a second-rate form of marriage and not full equality. I was interested to read the evidence from Professor Twomey in which she said:
I understand that the notion of marriage equality is fundamental to what people are trying to achieve but the reality is if what you are trying to achieve is marriage equality, to be true marriage equality it has to be done under Commonwealth legislation. It will never be true marriage equality if it is done under State legislation …
I disagree with that profoundly. If the aspiration of same-sex couples is to enter lifelong committed exclusive unions and to have them called marriages State laws allowing such marriages is, in my view, marriage equality because they will be entering into unions of a similar quality to their heterosexual counterparts in New South Wales. For those who seek the option to marry it does not matter what jurisdiction offers that option or how the legislation is framed, what matters is that they can make legally recognised vows of lifelong commitment, which a State same-sex marriage law would allow. This deep desire is why so many same-sex couples from Australia go overseas to marry or enter into State unions even though they would prefer to marry here. It is reflected in the fact that last year even though this was a concern in the Tasmanian debate not one single same-sex partner, according to our upper House members, wrote to them concerned that the law would create a second class marriage for them.
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My parents were married in Devonport in 1959 under a State law. They did not know it was a State law and they did not know that the law was any different, which it was in some particulars, to the law in New South Wales or Victoria. All they cared about was that they were able to legally marry and enter into an institution that they and their family members valued. What we are talking about today is exactly the same thing. I urge you to take your mind off, for a moment, what academics, experts and lawyers talk about in terms of the framing of statutes and to think instead about what couples wants. There is no doubt in my mind as an advocate for those couples that what they want is to be able to legally marry and this statute would allow them to legally marry. These couples, after a long, protracted and seemingly never-ending debate in Australia are looking for hope. They will be looking for that hope even more once the law changes in England, France, New Zealand and elsewhere. You have an opportunity to give them hope, please take it. I was going to introduce the fellow speakers.
CHAIR: Each member has five minutes to ask questions.
The Hon. HELEN WESTWOOD: We are rearing to go. Thank you all for being with us this morning and willing to give evidence before the inquiry. If I may begin with Reverend Hercock. We have heard this morning from a number of Christian organisations as to why they oppose same-sex marriage legislation in New South Wales. I am wondering as a man of Christian faith yourself, and clearly a leader in the Christian community, what your view is of same-sex marriage? As I understand it you have changed your own view and if you could share with the Committee what brought you to a different position on same-sex marriage?
Reverend HERCOCK: Thank you for the question. It is not an easy journey. I started a number of years ago with what would have been a more traditional Christian perspective, culturally growing up in the church and in an environment where gay relationships were considered abhorrent and often discussed in terms of immoral. In my ministry early on I came to discover a number of relationships with gay and lesbian people who struggled to come to terms with their same-sex attraction and at the same time felt heavily judged by the church. In response I asked some other questions both of my biblical texts, as a person trained in theology, and also a question of natural justice.
The natural justice question took me to places that I did not feel particularly comfortable with. It exposed some prejudices and fears that I had held as a young man and I started to recognise that Linda and Sarah, who live across the road with their young son Lionel, have every hope and desire to have their relationship recognised under marriage in this country and should have that recognised in law. I understand the churches have some argument about saying whether it should be a decision that can be made or not in a church, I believe that is up to individual churches and ministers to decide but I believe that couple and that family that choose to undertake exclusive marriage vows, the same as myself, deserve that right. I believe they do the best thing for Lionel, their children, and for those other children that come in. My congregation fully supported that and we have been able to continue to see other people—how remarkable is this—actually come into our church because they have felt not judged but accepted and their relationships affirmed and recognised.
The Hon. HELEN WESTWOOD: Mr Thomas, could I ask you as a parent why it is that you believe that our State should legislate for same-sex marriage, what does it mean to you as a parent?
Mr THOMAS: Fundamentally it means that my son is equal to everybody else. It is a simple premise, isn't it? I grew up homophobic. I spent nine years in the army, I am a Vietnam veteran and I am a plumber—I come from that environment that didn't like gays. When my son came out shortly before my wife passed away I was confronted with something that challenged my beliefs. I had a very quick look at why it was that I did not like gays and really it comes down to fear, ignorance, prejudice and good old bigotry. Everybody wants to stamp their view on the world and everyone wants the Government to do what they want them to do. I have listened to that this morning with the Catholic church. I have just listened to that this morning.
What the Catholic Church was talking about—and I have nothing at all against the Catholic Church— was excluding my son from having the same dignity and respect as every other Australian in that he ought to have the choice to marry the person that he loves. So, to me, it is a simple matter of confronting those truths and living in a country and a State that values all relationships. I do not think for a second that my son's relationship, or Liam Ezio's for that matter, or Kerryn and Jackie's, are not as valuable as the relationship that I share with my wife. I also do not think for a second, not for one second, that allowing same-sex couples the right to marry would impede one iota my relationship or anyone else's relationship. In fact, what I say is that if people are concerned about that, they are in serious need of marriage guidance counselling.
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The Hon. HELEN WESTWOOD: I noticed, Mr Coome, that you said you did look at the evidence that we received at our last hearing—and anyone else can add to this. There was some argument put that in fact we may be disadvantaging same-sex couples if we go down the path of same-sex marriage law in New South Wales. I wonder if you have a view on that.
Mr CROOME: I understand that there was concern, I think from Professor Parkinson and others, about dissolution of these marriages; that if there was someone who moved outside New South Wales that might make it more difficult. There are always issues when it comes to interjurisdictional divorce; there are certainly much easier issues to solve than the issues currently facing same-sex partners who go overseas to marry. He was, perhaps more importantly, also concerned about partners not receiving superannuation, and partners not being recognised in property division. I think there was a fundamental misunderstanding on his part here. He said: Well, the Commonwealth won't recognise these marriages—well, they are not to begin with, anyway—and therefore it will not recognise these partners as de facto partners within its jurisdiction, and the superannuation entitlements it won't grant, or property division in the Family Court it won't grant.
We had this debate, dare I say, in Tasmania. It was fairly clear, at least in the Tasmanian legislation, that people who would qualify as de facto under Federal law, even if they were married under State law, would be able to go to the Family Court to resolve issues of superannuation or property division. They can, in the first instance, go to the Supreme Court; and, if they wish, they can transfer those proceedings to the Family Court or to the Federal Magistrate's Court. There was no disadvantage there; they would still be regarded as de facto in Federal law. I see some of those concerns as somewhat exaggerated; and, of course, they are nothing compared with the great advantage of being included in an institution that we all value so highly.
The Hon. GREG DONNELLY: Thank you, gentlemen, for coming today. Reverend Hercock, for the record, which church or faith tradition do you represent here today?
Reverend HERCOCK: I am a Baptist accredited minister and trained with the Wesleyan Methodists. But the position I have taken is as a representative of myself. The Baptist Union Association of New South Wales has its own statement.
The Hon. GREG DONNELLY: So you are here today in effect expressing your own personal opinion, is that correct?
Reverend HERCOCK: Yes.
The Hon. GREG DONNELLY: Mr Croome, I go to your submission, and specifically page 11:
We recommend that the NSW Government enact legislation to allow the marriage of couples who are not permitted to marry under the Marriage Act 1961 by reason of the sex, gender identity or intersex condition of one or both partners.
If I could then read the definition in the proposed legislation, that is, the draft bill being examined here in New South Wales. The bill provides this definition for same-sex marriage:
The union of two people of the same sex, to the exclusion of all others, voluntarily entered into for life.
That seems to be a narrower definition than what you are seeking in your submission in terms of the capacity to marry in the State. Would you agree with that?
Mr CROOME: I understand that in the New South Wales legislation there is reference—
The Hon. GREG DONNELLY: No, this is a draft bill.
Mr CROOME: I am sorry, in the draft bill there is reference to the recognition of intersex people; people who are not necessarily of one gender or another.
The Hon. GREG DONNELLY: That is not quite right. There is a notation in the bill; that is not contained within the definition.
Mr CROOME: Okay.
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Mr McPHERSON: I think the bill as it stands should be amended so that it is wider and covers those people who are not covered by the Marriage Act 1961, because intersex people may have on their birth certificates or passports an X, so that they are neither man nor woman in terms of the Federal legislation. Therefore they are excluded from the bill as it is currently worded.
The Hon. GREG DONNELLY: Just in terms of the language in the recommendation, it says "by reason of the sex, gender identity or intersex condition of one or both partners". Can you explain what you mean by "gender identity", Mr Croome?
Mr CROOME: The reference to gender identity is a reference to those who are born of a particular sex but then change through sex reassignment surgery, or through a legal process to recognise a different gender, and who therefore are not able to marry under the Federal Marriage Act, or whose marriage under the Federal Act may be voided or there may have to be a forced divorce.
The Hon. GREG DONNELLY: I am sorry, would you say that again?
Mr CROOME: Those who change their gender and who therefore may have to undergo a forced divorce under Federal legislation.
Mr McPHERSON: An example is Cate McGregor, who was formerly Malcolm McGregor, a lieutenant colonel in the Australian Arm and speech writer for the chief of the Army, David Morrison.
The Hon. GREG DONNELLY: I think I understand the issue of trans-sexuality.
Mr McPHERSON: Right.
The Hon. GREG DONNELLY: I am trying to get a clear understanding of the term in your recommendation. The bill, which is currently in draft form, deals with same-sex relationships. Your proposition is to provide for same-sex relationships and trans-sexual relationships and people who have indeterminate sexuality, namely, intersex. Does that state it clearly?
Mr CROOME: Under the Marriage Act 1961 those people who enter a marriage have to be a man and a woman. So, we are trying to encompass two people who do not fall within that category.
The Hon. GREG DONNELLY: If I could use the phrase to pick up the difference, that is essentially what you are looking to be able to do, which is not provided for in the Commonwealth Act to be able to marry under New South Wales legislation.
Mr CROOME: Yes.
The Hon. GREG DONNELLY: The bill as currently stands falls short of that. Is that your submission?
Mr CROOME: It appears to, yes, as did the Tasmanian legislation.
The Hon. GREG DONNELLY: Right.
Mr CROOME: I understand that that raises some constitutional issues. This recommendation is a point of principle, and we believe that, if possible, it should encompass those people.
The Hon. GREG DONNELLY: I am sorry, what do you mean by "if possible"?
Mr CROOME: If it is considered by the experts to be constitutionally possible, then it should be in the legislation.
The Hon. GREG DONNELLY: Who are the constitutional experts?
Mr CROOME: Those you heard from last week.
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The Hon. GREG DONNELLY: A number of those experts argued that in fact they believe the Commonwealth legislation, the Marriage Act 1961 as amended in 2004, covered the field with respect to marriage; and the effect of that is that in effect extinguishes the capacity of States and Territories to legislate in this area.
Mr CROOME: That is the broader question that they were addressing. I think that some of their claims were exaggerated. It is impossible to know whether the Commonwealth does cover the field; that is in the hands of the High Court. But on this particular point I am saying if there is a concern, particularly from those who think that the Commonwealth does not cover the field, that this may jeopardise the constitutional invulnerability of a New South Wales law then that needs to be looked at but in principle we believe those people should be covered.
The Hon. JAN BARHAM: What is it that marriage equality legislation would give, other than the name? What other rights?
Mr McPHERSON: I was in a marriage with a woman for 27 years. I take marriage quite seriously. I suppose I am in a position, having been there, to understand the difference. Currently in Australia we basically do have two forms of marriage. We have marriage under the Marriage Act and we have de facto marriage through the Family Law Act. For a person of my generation or earlier, de facto marriage had a lower social status. "Jack living down the road with his de facto" was not exactly a phrase in which he was praised. And there is the practical point that during my marriage we never had to prove our marriage. If we did it was a simple matter, we just produced the marriage certificate. Under de facto legislation there are a whole lot of issues that the bureaucrats or courts can take into account. What we want to do at least at State level is have our marriages, our relationships, recognised as being equally valid and valuable. Civil unions just does not do that, it is just putting another name on it; whereas if we have marriage at a State level that is the beginning.
The Hon. JAN BARHAM: Is that because the word "marriage" says so much more than what the constitution says?
Mr McPHERSON: That is right.
The Hon. JAN BARHAM: People get what it means—that you are expressing your love, your commitment, and all those things.
Mr McPHERSON: My ex-wife was able to remarry and marry the man she loves. I do not have the freedom to do the same. Essentially I am a second-class citizen and my children do not deserve to have a father who is a second-class citizen.
Mr CROOME: That is an important point. We are talking about a cultural as well as a legal institution. As long as we say through the law effectively that same-sex partners cannot marry we are saying that the relationships those partners have do not conform with what we understand a marriage to be. And we understand a marriage to be about lifelong commitment, taking responsibility, sharing the joys and the sacrifices and the responsibilities of that union. That reinforces stereotypes of same-sex relationships as short lived, as entirely sexual, as unstable and all of those old stereotypes which are dying away now but still find refuge behind the failure of the law to recognise that we too can have long-term, loving, stable relationships.
The Hon. JAN BARHAM: And marriage does that. Mr Thomas, I want to ask you about this idea that people don't get it and wouldn't accept it. You are someone who has just expressed that you have come a long way. What about your friends and the people you associate with?
Mr THOMAS: I do not have any issue with anybody. I canvass this idea with virtually everybody that I speak to these days. The number of people that are opposed to it are, in my opinion, in the minority. I am just fascinated by one aspect of this. That is that we talk about family and children, I mean there is this great emphasis on children, and yet we dismiss out of hand the children of same-sex marriages as they stand at the moment. Where do they fit? They are dismissed. Why can't they have social and legal recognition of their parents as they are? I am just fascinated by the way these kids are just dismissed. No Australian deserves to be dismissed in this fashion. I find that quite offensive actually.
The Hon. JAN BARHAM: And you have those conversations and you speak from experience.
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Mr THOMAS: In plumbing supply it is not a tough conversation, I have got to tell you. Not anymore. It used to be, but not anymore.
The Hon. JAN BARHAM: Some of the submissions have said that the surveys are skewed or biased. You have done a lot of work on surveys and trying to get that public opinion. Is there something more you can add about the idea of bias?
Mr CROOME: We can send you the information if you want, but there have been literally dozens of national polls on this issue by a whole range of different polling companies, Galaxy and Morgan and Newspoll and all the rest. Over several years they have asked a range of different questions related to this, such as: Do you support same-sex couples being allowed to marry? Do you support gay marriage? Whatever the question is, whatever the polling company is, the result is always the same that between 60 and 68 per cent of Australians support the right of same-sex couples to be able to marry and about 30 to 35 per cent oppose. That is so consistent that I think we have to take it as a very good indication of where Australians stand, including New South Welsh people.
Reverend HERCOCK: Can I just add that I have a young child, he is a five year old, he goes to the local preschool and has just graduated to school at Crown Street. He goes along to the preschool where they had a day for photos of your parents' wedding and so forth. I was fascinated that one of the preschool teachers, obviously of a same-sex relationship, had a photo of her partner but of course it was not a wedding photo. I do not have all the kind of nous around being a legal mind or anything around some of these things, but when you try and talk to a five year old about the recognition and visibility and legitimacy of that relationship, why should he have to work out that that relationship is any different to any other one and not just celebrate that photo? That is essentially what it means to me.
The Hon. JAN BARHAM: Five-year-old children know what marriage means.
Reverend HERCOCK: It is the same. They should have that sense of pride that we all do.
The Hon. CATHERINE CUSACK: It is fair to say, is it not, that the main stakeholders in the relationship are the two people in the relationship. Surely the most important issue is how they feel about each other. It is a political process to change an Act of Parliament. Why is it so important that they be blessed as a marriage? Why does that relationship not just stand on its own legs? Why is marriage so integral to that legitimacy?
Mr McPHERSON: I think that it would not matter in principle and in general terms if I am in a relationship with somebody that I love and I am committed to them then I am married to them. It would not matter whether my relationship is approved of or recognised by the church or by the State. However, it is a matter of injustice that one relationship is approved and recognised and another is not.
The Hon. CATHERINE CUSACK: The argument is that marriage is a heterosexual institution and that there is a different culture for the gay culture and sharing the heterosexual institution is not essential at all in terms of recognising their legal and valid rights. It seems to me to be a political campaign—that is the point I am making—about perceptions; it is not about how people feel about each other in relationships.
Mr McPHERSON: First of all, we speak about the gay culture but the gay culture is very diverse and it includes people from many ethnic backgrounds who do not necessarily see it in the same way. And people come from different family backgrounds. Therefore it is important to some of those people that they be able to join in the same social institution as their heterosexual peers. This campaign is happening throughout the world, including in Asian countries, even in China.
The Hon. CATHERINE CUSACK: I hear what you are saying. I am just questioning whether marriage is a social institution or whether it is really a relationship between two people.
Mr McPHERSON: Fundamentally, it is, yes.
The Hon. CATHERINE CUSACK: I actually support diversity in this situation.
Mr McPHERSON: Yes.
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The Hon. CATHERINE CUSACK: But it just worries me the way that marriage is being elevated as some sort of public institution that is essential to your wellbeing.
Reverend HERCOCK: And some of it is about choice, is it not?
The Hon. CATHERINE CUSACK: Absolutely.
Reverend HERCOCK: Because, at the end of the day, if you do not have the choice, then the perception is different.
The Hon. CATHERINE CUSACK: Yes.
Reverend HERCOCK: But when you do have the choice, then—like, if you have the choice for a wedding, for example, and I conduct a number of weddings—there is a celebration that, if the couple choose to, they enter into with their families, with their community and their friends. It is actually that celebration that they would like to participate in. Some choose not to.
The Hon. CATHERINE CUSACK: Sure.
Reverend HERCOCK: Some choose to go to Las Vegas.
The Hon. CATHERINE CUSACK: Exactly. If you do not mind, can I get onto a different topic? The thing about this issue that particularly concerns me is that those people who believe very strongly that it is a heterosexual institution will be very hurt by a Parliament that changes this legislation. I mean, do you accept that? It is ironic, is it not, that you can have a sense of disempowerment and entitlement about this, but equally there is that group of people who passionately believe marriage is a heterosexual institution, not because they are prejudiced or for any other reason, but just that they passionately believe that. So the Parliament will be hurting a fairly substantial group of people very deeply in terms of their values and their institutions.
Mr THOMAS: Can I answer that? Look, why should my son and my family be hurt by a government that purportedly is there to represent them? Without putting too fine a point on it, I went to Vietnam because I believed in this democracy and I was 18 years of age, whatever you like. But I believed passionately in the ideal of what being Australian is all about. We hear it every day, do we not? It is all about equality, mateship—all that sort of stuff. What you are talking about is a group of people who do not want to give this group of people acceptance in their own country. Think about that for a second.
I travel the world taking photographs. I have spoken to people in Soweto, who became free because of Nelson Mandela. A young fellow looked at me and I said, "What does it mean?", and he said, "You know, I'm free." And tears welled up in his eyes. Why should people in this society, my son, and the Liam Ezios of the world and the Kerryns and Jackies of the world, take a second place to somebody because of a particular view that they have in a democracy like this. Read the Australian Constitution. It does not separate people. But we have a group of people trying to hold onto separation. It is just not fair. It is as simple as that—it is just not fair.
Mr CROOME: In my experience from talking to people that you are talking about, about this issue, I find that they very quickly come to the realisation that we do not want to destroy marriage; that we want to participate in it and share its benefits. When we explain that to them, they then feel less threatened. They realise that their fears about us are unfounded and that it becomes an institution in their eyes that they want to share; that they do not feel will be diminished by us, but will be enhanced by our participation. Just to go back to your point earlier, heterosexual people marry for many different reasons, as same-sex couples do overseas and will here. But for me, personally, it is about family.
Only marriage joins you to your partner's family and joins your partner to your family and allows you to use terms like "brother-in-law", "mother-in-law", and to have that sense of belonging. Civil unions do not do that; de facto relationships do not do that. That is unique and important. It is not about devaluing other relationships. It is about recognising what is special about marriage. We belong in families, and this is a way to cement that belonging.
The Hon. NATASHA MACLAREN-JONES: I would like to follow on from your comment just then that civil unions do not have the same status as marriage. Could you elaborate a little bit more on that and
SOCIAL ISSUES COMMITTEE 25 FRIDAY 15 MARCH 2013
explain to me why you feel that there is a difference, but also why civil unions could not be elevated to that same status within society?
Mr CROOME: We only have to look to other comparable jurisdictions to see that that has not happened. In Britain and New Zealand, they are moving now rapidly towards marriage equality precisely because the civil union experiment failed. It failed to provide same-sex couples with equal social, cultural and even legal recognition. According to reports that have been produced in both those countries—and I am happy to provide those to the Committee at a later stage—same-sex couples report that their relationships are not respected or understood by others, including family members—their civil partnerships. They report that people in authority do not understand that they have the legal rights that they do, including school principals and people in hospitals and all the rest. They say, "We're in a civil partnership", and people say, "Well, is that a marriage or not?" Again, I can show you this evidence.
That is why, in those countries where same-sex couples have the choice, overwhelmingly they choose to marry and not to be in civil partnerships. I strongly believe people should have the choice to marry or be in civil partnerships of some kind or another, and I was a strong proponent of the deed of relationship scheme in Tasmania to provide people with that choice. But civil partnership schemes can never be a substitute for such a long-term widely accepted and understood institution. Marriage provides us with a universal language of love and commitment. Everyone knows what a husband is, what a wife is, what a wedding is. Far fewer people understand what a civil union is. According to the international experience, that does not change. They still do not understand, and that is why those countries have moved on.
The Hon. NATASHA MACLAREN-JONES: But is that not then the job of organisations, of society, of governments to explain? If we were to look at civil unions, would we not then be in a position to educate and to say, "This is what a civil union is", and "This is what marriage is"?
Mr CROOME: Well, you have had several years to do that with a relationship registry. I am not sure if that has worked in New South Wales. It has not worked in Tasmania. We were the first State and people still do not understand what that means.
The Hon. NATASHA MACLAREN-JONES: But a register is very different to—thinking about the Reverend's comments earlier about photographs—having a service.
Mr CROOME: We have an officially recognised deed of relationship ceremony in Tasmania that has not made any difference in terms of what these mean to people. It allows people to have a ceremony if they do not want to get married—fine. But it has not made any difference, as it has not made any difference in New Zealand, or Britain, or New Jersey, or wherever they have these schemes. You are simply putting a different name on a substitute—a substitute that does not work.
You could create a civil union scheme in New South Wales that is as close to marriage as is possible, like the scheme that they proposed in the Australian Capital Territory [ACT] in 2006. That is like marriage in every way except that it is called a civil union. I do not believe that that would carry any greater weight than your current scheme. That is certainly the international experience. If we look back at what happened in 2006 in the Australian Capital Territory, there would be those who want to challenge it constitutionally in the High Court because it "mimics marriage". I have read the evidence from last week from people saying, "Oh, a civil union scheme would be constitutionally viable. That's fine." Well, I am not so sure. There would be the same people who would object to a State same-sex marriage law who would object to that in the court.
CHAIR: It is quite interesting listening to this discussion around civil unions because we have heard from the bishop earlier saying he opposed civil unions because they were too marriage-like and we had the first witnesses this morning saying that they do not like civil unions because they are a stepping-stone towards marriage equality, but yet you are now saying that you oppose them for the other reason. Is that right?
Mr CROOME: For not being marriage, yes. Like I said, it is—
CHAIR: So the only way that we can get true marriage equality, would you agree, would be for the Federal Government to change the definition of "marriage"?
Mr CROOME: The way for same-sex couples across the nation to be able to legally marry would be for the Federal Government to act.
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CHAIR: Okay. So we are not the Federal Government. So we cannot change that. We as this Committee cannot achieve exact marriage equality, so we are looking at other types of models as well that could be proposed. On one hand, when we are talking about whether it is a State-based marriage equality or whether it is a civil union bill, we have the problem that we are either too much like marriage, or we are not enough like marriage. Is that a fair assumption?
Mr CROOME: I think we are getting caught on terminology, with all due respect, and we need to consider the fundamental issue, which is the aspiration of same-sex partners to be able to legally marry.
CHAIR: Is that not the exact point? We are being told that if we call it a State-based marriage Act, for example, we will have constitutional problems. We are also being told that if we call it a civil union bill, it will be too much like marriage. So, what we need to do is try to find something that would be able to recognise the types of relationships you are advocating for.
Mr CROOME: Which is what this bill does.
CHAIR: It almost looks like the republic debate to me in some aspects. When we cannot agree what the questions are we may not end up with a result that everyone is fighting for. I may be wrong, but when I listen to the fantastic evidence from Mr Thomas and listening to some of the other witnesses, everyone is wanting these types of relationships to be recognised, to be celebrated and to be legally binding and a chance for people to share their commitment and express that to their family and their friends. I am now starting to get the view that we are getting caught up on the terminology, whether it is too much or not enough like marriage, and the whole thing may end up going nowhere because what you rightly agreed to, we are getting caught up in terminology. Is that a fair assumption?
Mr CROOME: That is why I said we need to think about the fundamental issue. The fundamental issue is that same-sex partners want to be able to legally marry. That is what the State law does. The key there is the word marriage. It is pretty clear that is what we are talking about. We are not talking about a civil union scheme.
CHAIR: Our legal experts are telling us that is exactly where we start the constitutional issues when we start to use that term marriage. That is the whole reason why we are having this inquiry. Thank you for your time this morning. We appreciate your submission and your evidence. The Committee may have some supplementary questions to pose to you. If that is the case the Committee has resolved that the responses to those should be back within 21 days. The secretariat will liaise with you for the responses.
(The witnesses withdrew)
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NICHOLAS PARKHILL, Chief Executive Officer, ACON, sworn and examined:
DEAN PRICE, Policy Advisor, ACON, affirmed and examined:
CHAIR: Would you like to make an opening statement before we go to questions?
Mr PARKHILL: Yes please, thank you. ACON is glad to be here today to discuss marriage equality, an issue that raises passion in the gay, lesbian, bisexual, transgender and intersex communities in New South Wales. Our particular interest in this issue is the positive impacts that marriage equality has been shown to have on the health and wellbeing of individuals and these communities. Good health outcomes come from the recognition of human rights. Where you have good human rights you have good health outcomes. The denial of human rights has negative impacts on the physical and mental health of individuals and communities. It is for these reasons that ACON seeks legal and social reforms on a range of issues to promote the human rights and equality of GLBTI people and people with HIV. The World Health Organisation recognises that "vulnerability to and the impact of ill health can be reduced by taking steps to respect, protect, and fulfil human rights." The Ottawa Charter for Health Promotion also recognises the need for social justice and equity as a foundation for health improvement.
Addressing discrimination, stigma and minority status will have a positive impact on our communities' health. Marriage inequality is one form of discrimination that our communities face, and this form of discrimination promotes stigma and reinforces an "otherness" of GLBTI people to the mainstream community. According to a report by the New South Wales Attorney General's Department, 85 per cent of GLBT people in New South Wales have experienced homophobic abuse, harassment or violence in their lives. Furthermore, 56 per cent reported having experienced homophobic abuse, harassment or violence in the past 12 months. It has been widely noted that suicide in the GLBT community is between 3.5 to 14 times higher than their peers who are not gay, lesbian or bisexual. Further, it is well recognised that suicide and self-harm rates for same-sex attracted youth and same-sex attracted Aboriginal and Torres Strait Islander Australians are even higher.
In addition to mental health, alcohol and other drugs are an issue for our communities. The 2007 National Drug Strategy Household Survey reported statistically significant higher rates of cannabis, ecstasy, methamphetamine and cocaine use amongst our communities. A recent report developed by the National Drug and Alcohol Research Centre at the University of New South Wales, and looking only at consumption, stated:
Within the literature examined for this report, a number of potential factors as to why GLBT individuals use alcohol and other drugs to a greater extent, or face higher rates of psychological disorders than the heterosexual population, have been identified.
Many, but not all of these risk factors for psychological disorder—for instance, victimisation—can apply equally to GLBT and heterosexual groups. However, in many cases these factors are experienced to a much greater degree by the GLBT population. In addition, there are other risk factors which may apply exclusively to this population, such as homophobic abuse, or issues surrounding sexual orientation disclosure. Associations between sexual orientation and psychological disorder are likely to be mediated by these causal factors, and research has shown that once these factors are accounted for, there is often little difference between the GLBT population and heterosexual population groups.
The same report went on to argue that marriage equality should be legislated and other "measures which reduce the stigma and discrimination against GLBT people are likely to have powerful public health impacts." This suggestion is backed up by initial research undertaken in international jurisdictions where marriage equality has been legislated. In a recent study undertaken in the Netherlands and Massachusetts the benefits of marriage included a greater sense of social inclusion and fewer feelings of social exclusion amongst the GLBT community. This makes sense when looking at broader research into minority stress and the role that stigma, expressed and reinforced through the legal system, plays in creating poorer psychological wellbeing.
We believe that by the New South Wales Parliament demonstrating leadership on marriage equality, and therefore a commitment to the health and wellbeing of all people in New South Wales, over time will lead to better health outcomes for GLBTI people. These better health outcomes would include improved mental health, specifically a reduction in the experience of anxiety, depression and suicidal ideation, as well as less problematic alcohol and other drug use, and less violence directed towards our communities, which have been generated by homophobic views in wider society. We are happy to answer any questions and thanks again for the opportunity.
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The Hon. HELEN WESTWOOD: Thank you Mr Parkhill and Mr Price for being here this afternoon. In your opening statement you raised some points regarding the health and wellbeing of those who identify as same sex—members of the GLBTI community. Last night I was at a consultation with the GLBTI community in Bankstown, which is a first. A number of issues young people raised were about community safety—not only on the streets but within their family—and attitudes that have led to isolation and health issues for them. If New South Wales were to enact a same sex marriage law, how would that affect those young people? How would it improve their health and wellbeing and change those attitudes that have led to discrimination and often incidence of violence against them?
Mr PARKHILL: I imagine it would have a very significant impact on both the health and wellbeing of those specific young people you are talking to and also to the networks and cultural groups with which they operate and identify. It would be a very strong symbol of equality that certain homophobic attitudes are no longer tolerated and things are changing. This would be a great step forward in saying to them that they are just as equal. That would have a profound health impact.
The Hon. HELEN WESTWOOD: Did you want to add anything, Mr Price?
Mr PRICE: There has been a lot of research around the role that stigma plays in the experience of violence and psychological distress and associated issues. What has been shown is that the importance of societal recognition actually has an individual impact on people. It is that statement that actually has ongoing effects on people and improves their wellbeing and experiences of the world.
The Hon. HELEN WESTWOOD: Earlier today we heard evidence about the health and wellbeing of children who were raised in same sex relationships. It was suggested that the research is clear that children raised in those relationships experience more mental illness and ill health as a consequence. They were arguing clearly that marriage is a union of a man and a woman for the production of offspring and by going down this path of legalising or validating same sex marriages we are going to have a negative impact on any children raised in those relationships. Do you have any experience or evidence to the contrary? Do you do any work with children raised in same sex relationships?
Mr PARKHILL: We do not do any work with children raised in same sex relationships, but from the literature that we have looked at, there is a body of literature and research out there that speaks about other outcomes than what was articulated earlier, from my understanding of what you have said. We would absolutely reject that on the basis that social inclusion rather than social exclusion leads to much greater health outcomes. We would absolutely reject that that would be a health outcome for children in those unions and families.
Mr PRICE: I am aware of research showing the exact opposite, that children within those relationships do actually turn out better than the general community. Whether that is right, I am not too sure, but I guess the premise that the research is clear, I do not think that would be the case from the research we have seen because it contradicts the research they are presenting to you.
Mr PARKHILL: Absolutely.
The Hon. HELEN WESTWOOD: Have you had an opportunity to look at the evidence we received at the last hearing, which was around the constitutionality of a New South Wales law?
Mr PARKHILL: Not in great detail. Dean can perhaps speak to this in much greater detail than I can.
The Hon. HELEN WESTWOOD: One argument put to us last week was that if we enact a law for same sex marriage, we will be disadvantaging those couples, particularly as it relates to dissolution of those relationships. Do you have a view on that?
Mr PRICE: It is probably something we could respond to. I have not looked at that specific part of the evidence. I have looked through some of the other evidence. It is not something that we looked at, but we could respond.
Mr PARKHILL: If we could take that on notice.
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The Hon. HELEN WESTWOOD: It would be excellent if you could do that. In respect to civil unions versus marriage or same sex marriage as it would be in this State, could you provide the Committee with your view on why civil unions are not a path we should go down rather than same sex marriage?
Mr PARKHILL: We absolutely believe that moving towards marriage goes a lot further in reducing stigma and discrimination experienced by GLBTI people than civil unions. For that reason we think marriage is the ideal over and above civil unions for those points articulated by AME earlier. We do not believe that longer term societal change that actually removes discrimination and stigma will be achieved through civil unions. We have not seen that with the register in New South Wales. Certainly the ideal is marriage over and above civil unions.
The Hon. GREG DONNELLY: I am sorry, I have only six minutes so I will have to march through my questions pretty quickly. I apologise for speaking fast. Thank you for coming today to provide some evidence. The recommendation on page 7 of your submission states:
The Legislative Council Social Issues Committee and the two houses of NSW Parliament support the State Marriage Equality Bill 2013.
Have you looked at the bill that is in the public domain?
Mr PARKHILL: Yes.
The Hon. GREG DONNELLY: Have you looked at the definition of same sex marriage in the definitions clause?
Mr PARKHILL: We have certainly looked at it, but I do not have it in front of me.
The Hon. GREG DONNELLY: Do you have a copy of the bill there?
Mr PARKHILL: No.
The Hon. GREG DONNELLY: I will read it. On page 2 of the bill the definition says, "Same sex marriage means the union of two people of the same sex to the exclusion of all others voluntarily entered into for life." As it currently stands, that definition does not provide for persons who are intersex or transgender. The submission of AME was that that is what we should be legislating for in New South Wales—in other words, covering the deal, so to speak, in all areas that the Commonwealth does not pick up in its definition of marriage. Is your position the same as AME or do you actually support the bill that is being considered at the moment? Have I made myself clear?
Mr PARKHILL: Certainly we support the bill in its current form because it certainly is a step forward from where we are at this point in time. Ideally though, and I think this has been articulated in our submission, particularly when it comes to intersex, there is a continual denial of the right for marriage for intersex people. For us that, as a matter of principle, would be an ongoing concern.
The Hon. GREG DONNELLY: And the position with respect to transsexuals?
Mr PARKHILL: Certainly, yes.
The Hon. GREG DONNELLY: To be clear, your position essentially is the same as AME?
Mr PARKHILL: That is right.
The Hon. GREG DONNELLY: So their recommendation is the ideal outcome if it could be achieved but the draft bill as it stands is a step forward, as you see it?
Mr PARKHILL: That is right.
The Hon. GREG DONNELLY: The legal issues of the State Parliament being able to deal with this are quite complex. Last week we spent a whole day hearing from experts on it. A number of those experts have said, although there is an alternate view, that the Commonwealth Parliament has sought, in terms of the definition in the Marriage Act going back to the establishment of the Act in 1961, to cover the field with respect
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to marriage and not leave it to the States or indeed a Territory to deal with marriage. I presume you hold a different view to that—that the States can legislate in this area. Is that your position?
Mr PRICE: We are not lawyers. The advice that comes from professionals was mixed last week so we would ultimately defer to them. In terms of what the State should do, we believe they should do as much as is in their power based on your own legal advice, which I imagine would be sought through the parliamentary process, and go as far as you can in creating marriage equality.
Mr PARKHILL: There is precedent where States have shown leadership in respect of certain issues and brought forward legislation that speaks to those specific issues and other States and the Federal Government have followed. I think this is an example where that could happen.
The Hon. GREG DONNELLY: I am interested in your opinion on this point: It is a matter that was raised in the inquiry in the Commonwealth Parliament last year into the issue of same-sex marriage. In that Senate inquiry there were a number of witnesses, including Justice Kirby, a former justice of the High Court of Australia, who gave evidence. At page 13 of the transcript Justice Kirby is asked a question about changing the definition of marriage to go beyond two people to perhaps more than two people or a loose association of greater than two. He was asked for his view about changing the definition of marriage from heterosexual to heterosexual and homosexual and the implications for the future of there being more than two people involved. He says: "Nothing is finally written. I suggest that it is a matter that needs to be taken step by step." This is looking at involving more than two people in a marriage relationship. Do you have a view about there being more than two people in what would be recognised as a marriage relationship?
Mr PARKHILL: We do not have a view on that but I think it is certainly outside what this proposed piece of legislation is talking to and would raise a whole other set of issues that we certainly do not have a position on.
The Hon. GREG DONNELLY: So it is not in any formal documentation or public statements?
Mr PARKHILL: We do not have a policy position or statement to that effect that speaks to more than two people being in a relationship.
The Hon. GREG DONNELLY: A marriage relationship.
Mr PARKHILL: A marriage relationship, absolutely, and certainly outside—I certainly do not see this as being a step towards that. The passage of time looks at social progress and you see things shift and shape and forms and structures change but this is not a gateway to—
The Hon. GREG DONNELLY: You would not rule it out?
Mr PARKHILL: I think there would be a very slim chance that that would actually be the case.
The Hon. JAN BARHAM: I want to ask about health and wellbeing. You talked about some of the problematic behaviour with people that might stem from social exclusion and negative issues surrounding marriage not being available. Can you elaborate or expand on any of those issues?
Mr PARKHILL: Certainly. When you look at societies that have good access to things that could be perceived as health services or a whole range of things, when you have good human rights, you tend to have better health outcomes. A classic example of that has been the impact of HIV. Homosexuality was once illegal and in order to access gay men Federal legislation was enacted changing that and decriminalising homosexuality. That absolutely was instrumental in creating an effective HIV response. Where we see those rights being removed in other cultures, particularly for gay, lesbian, bisexual and transgender people you see a whole set of health issues that are experienced at much greater levels. In those cultures and societies where there have been greater human rights and greater entitlements put through legislation there has been significant change to the health outcomes experienced in those communities.
The Hon. JAN BARHAM: Does that include substance abuse? Do we see less of that because people feel more confident or less impacted negatively and less in fear of violence or persecution?
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Mr PARKHILL: I think it is across a whole range of health outcomes. In relation to substance use it is often difficult to understand exactly why an individual might be using a particular substance at a much greater level than someone else, but when you see it at a population health level you would question what is going on in that particular population group. Certainly when it comes to the gay community there are a number of potential reasons why that could be happening. Inequality would be one of the contributing factors or inputs to that particular pattern of use within that community.
The Hon. JAN BARHAM: Does that lead to the broader issue you raised in your submission about the social stigma that people feel the rest of society applies to them, and the importance of the word "marriage" defining something that has regard in society—that the broader society respects someone if they have made that commitment? Did that have a lot of impact?
Mr PARKHILL: Absolutely. Not having access to marriage reinforces issues around stigma and discrimination and the sense of otherness.
The Hon. JAN BARHAM: It is not just a sense of feeling lesser but the way other people relate?
Mr PARKHILL: That is right. It is certainly feeling lesser and not equal but it is also the otherness that the general community applies to the perception of that particular population group.
The Hon. JAN BARHAM: Do you have research that goes to the point that it is that feeling that then causes some substance abuse or mental health issues? Can it be drawn right back to that point?
Mr PARKHILL: To that feeling of otherness and social isolation? Absolutely.
The Hon. JAN BARHAM: Some issues have been raised in other submissions about the surveys that have been carried out and whether or not they are biased or lead people to a certain conclusion. Do you have confidence that the surveys that are being done are indicating an increase in broad community support for same- sex marriage?
Mr PARKHILL: Absolutely. That is not just within the Australian context, it is happening in other international jurisdictions, particularly developed countries. That perception has changed.
The Hon. JAN BARHAM: Is that changing the way people see it in Australia, because it is happening elsewhere and that makes a difference to how people relate to it here?
Mr PARKHILL: There is that aspect but there is also a greater sense and understanding that notions of diversity and the need for diversity are essential to social progress and that diversity does not just speak to progress in a social area but has economic impacts, or a valuing of diversity has economic impacts. That is why we are seeing a greater number of corporate Australia coming out in support of same-sex marriage. It has health impacts, so it cuts across the broad range of social outcomes that are trying to be influenced. Broadly the Australian population see that and want that.
The Hon. CATHERINE CUSACK: In the gay community are women often referred to as breeders?
Mr PARKHILL: No, I would have to reject—women are rejected as breeders within the gay community?
The Hon. CATHERINE CUSACK: No, is the word "breeder" slang for women?
Mr PARKHILL: No.
The Hon. CATHERINE CUSACK: Is the word "beard" slang for a woman who is married or seen as a front for a person who is gay?
Mr PARKHILL: I have heard the expression before, I do not know how common it is or how often it is used but I have heard it before. And not necessarily in a derogatory way, I might say. It is as a descriptive.
The Hon. CATHERINE CUSACK: As a term of endearment?
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Mr PARKHILL: It is not a term of endearment.
The Hon. CATHERINE CUSACK: Have you heard the term "fag hag"?
Mr PARKHILL: Yes.
The Hon. CATHERINE CUSACK: What does that mean?
Mr PARKHILL: That means a woman who has a close relationship with a gay man.
The Hon. CATHERINE CUSACK: I have always been a strong supporter of ACON, in fact I was a member of ACON back in the 80s. Then it seemed as if it got taken over by all these gay people and all the straight women like me got kicked out.
Mr PARKHILL: I cannot comment on that. I apologise for that.
The Hon. CATHERINE CUSACK: It is a health organisation. This concept of an exclusively gay group where ACON appeared to separate from the rest of the community to become a place for gay people and people who weren't gay weren't welcome to participate. I am wondering whether that is generally the case. Do you have a diverse membership in ACON?
Mr PARKHILL: I would say that most of ACON's programs and services are directed to the gay, lesbian, bi-sexual and transgender community. We are funded by Government to provide those services to those population groups by and large because often mainstream health services will not provide those. But it was recognised, from a health promotion perspective, that communities affected by certain health issues or diseases are better equipped to respond themselves to those issues. Absolutely the majority of ACON's programs and services which we are funded to provide by Government are directed at the gay, lesbian, bi-sexual and transgender community.
The Hon. CATHERINE CUSACK: I have voted for this legislation and will keep doing so, but it bewilders me sometimes with the gay community that you want to be separate and the same, I say that as a woman who feels very excluded and often looked down upon by gay culture.
Mr PARKHILL: I apologise if that has ever been your experience with ACON. I cannot talk to the specific instance when you were involved.
The Hon. CATHERINE CUSACK: I do not wish to refer to that specific thing. It is a problem, is it not? Do you deny it is a problem, gay attitudes towards women?
Mr PARKHILL: No. Certainly I would imagine within some sections of the gay community that might exist but by and large the gay, lesbian, bi-sexual and transgender [GLBT] community is a community that absolutely values and celebrates diversity and there are many examples of the GLBT community illustrating or demonstrating to the broader community what social diversity and the celebration of that can gain.
The Hon. CATHERINE CUSACK: In fairness, is ACON delivering AIDS programs to people who are not gay? There are a lot of people who are not gay who have AIDS?
Mr PARKHILL: When you look at the data from last year in terms of seroconversions in New South Wales, 80 per cent of those infections were with gay men. There are other programs funded by the ministry of health to address the specific needs of heterosexuals with HIV including Pozhet, which is run through the central Sydney local health district. Anyone who comes in for counselling around HIV at ACON will receive counselling and care and support to an exceptional quality, regardless of their sexual orientation.
The Hon. CATHERINE CUSACK: Given you are the expert body, the AIDS council of New South Wales, would you say that 20 per cent of your services have been delivered to the 20 per cent of the community who are not gay?
Mr PARKHILL: No. I would say that there are other organisations that are dedicated to that 20 per cent. It is about public health and epidemiology. We are placed in the heart of the gay community so a lot of people come to ACON because we are right where they are living within that geographic location. We provide
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outreach services across the State and we have offices in other towns where we would probably see more heterosexuals due to the geographic spread of the epidemic through those branches. Certainly in our Sydney office we would absolutely be seeing more clients who are gay identified than with our branches in regional areas. We have a program and service mix that speaks to all people but because of the epidemiology of the virus itself, 80 per cent gay men, most of our resources are dedicated to addressing that issue both from a prevention and a care and support perspective.
The Hon. NATASHA MACLAREN-JONES: I have just one question in relation to civil unions and marriage. We have heard and read a number of submissions that raise concerns regarding the constitutionality of us having the ability to introduce legislation to bring in same-sex marriage. Do you support civil unions in this State?
Mr PARKHILL: In the absence of access to marriage we would support civil unions on the recognition that it is a step forward or a stepping stone to a much greater goal. I actually do not think it delivers the better health outcomes and the better wellbeing issues. I do not think that it contributes to reducing social isolation or that sense of otherness that marriage will do when it finally arrives.
The Hon. NATASHA MACLAREN-JONES: Can you explain why?
Mr PARKHILL: I think because it does not speak to the long standing, as has been expressed before, language that marriage generates or cultural intonations that marriage brings with it. It is perceived as second rate, not as good as marriage and I think the cultural flow-on effects from that will potentially not be as great as what marriage will be for our community.
The Hon. NATASHA MACLAREN-JONES: Could not the role of your organisation and others be to promote the institution of a civil union?
Mr PARKHILL: I am not sure if that would be ACON's role.
The Hon. NATASHA MACLAREN-JONES: If you are advocating for marriage equality, ACON's role is part of that, would that not be the same for the health and wellbeing?
Mr PARKHILL: I think there is a universal language that comes with marriage and it is a long entrenched cultural tradition with that language attached to it. I would think it would need greater social change and social inputs than ACON trying to shift a language or a cultural around that to achieve what it is that is trying to be achieved through access to marriage and the full equity of access to marriage.
CHAIR: Can I take you back to your submission for a few moments and you said you support the draft bill that has been presented to the committee for consideration. In your submission where you talk about why civil unions are not an adequate alternative you say that one area of difference is that marriage is recognised and portable internationally whereas civil unions are specific to certain jurisdictions and are not necessarily portable between jurisdictions that have civil unions. Are you aware of the residency clause in the draft bill before us, and particularly around the issue of dissolution where it states at least one of the members must be residing in New South Wales for that State-based marriage to be terminated?
Mr PARKHILL: I was not specifically aware of that clause.
CHAIR: It is saying what you are arguing against when you talk about civil unions. There is a provision within that bill that will only apply to residents of New South Wales and if those people did move interstate, we heard from one constitutional expert that they could be caught in this limbo where they cannot divorce if they want to. Then if the Federal Government brought in marriage equality those people would be discriminated against because they would have to move back to New South Wales to divorce. You are not aware of that?
Mr PARKHILL: No, I will need to take that question on notice and provide additional detail as to what ACON's position would be on that.
CHAIR: Would need to take the recommendation that you wholly support the bill on notice, or is it the concept of the bill that you would support?
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Mr PARKHILL: The concept of the bill. Absolutely the concept of the bill from a human rights perspective and contributing to better health and wellbeing outcomes for the gay, lesbian, bisexual, transgender, and intersex community—well, for the gay and lesbian community.
CHAIR: You heard my questions earlier to the witnesses from Australian Marriage Equality. As a Committee, we fundamentally have our problems because we have the legal system to traverse at a State and Commonwealth level, yet we also have the social and equity issues that surround the celebration and the joining of a relationship between two people who want to express their love to each other and their community. We are ultimately getting caught up on terminology, such as in your submission. We seem to have an issue with things that cannot transform across borders internationally. You would agree with the statement that the only way we can get true marriage equality in Australia is for the Commonwealth law to be amended; is that right?
Mr PARKHILL: Certainly. That is what we have said in our submission and that would be the ideal but, as we have said before, this will be an iterative process. There are complexities involved, but there needs to be leadership shown at the State level. New South Wales has had a strong commitment over the years to the gay, lesbian, bisexual and transgender community. It is a vibrant community in New South Wales. The response to HIV has been exceptional. It would be wonderful to see that taken to a level where New South Wales shows leadership for the rest of the country about what that could potentially look like and work through those legal and jurisdictional complications.
CHAIR: Should that be done at all costs?
Mr PARKHILL: All costs? I am not sure what you mean by that.
CHAIR: A State-based bill will either be defeated or it could have people trapped in a legal limbo such as the residency issue that I spoke to you about, or if you take the point from the Hon. Greg Donnelly, some people may slip through the cracks because of the definitions. Is your organisation and the people you represent looking for us to show that leadership at all costs, or is it something that should be done—
Mr PARKHILL: I think "at all costs" is a blanket expression. There will always be people who will experience relationship difficulties and a number of legal implications because of those difficulties. That is the nature of a relationship. It does not matter where you reside and the jurisdictional lines that sit there. The greater good that will be established through this is much more worthwhile.
CHAIR: Perhaps I will rephrase it. We have been told on one hand that we should take the plunge, go ahead with a state-based marriage bill, let it get tested in the High Court, show that leadership, the other States may follow, and away we go. There may be some legal problems with that. Some people might get caught in or out, some people might get missed, but that is the leadership you are talking about. On the other hand, we have people who are saying, "We will do this properly. Maybe we will not go the whole way, but make sure that anything that is done stands up to legal challenges and is carefully worded and tempered to progress the cause", for want of a better word. Do you have a view about those two different scenarios?
Mr PARKHILL: The scenario you outlined at the beginning is in terms of where we are at, rating the environment, the way to move forward. I think that is how the change will come about.
CHAIR: I will ask one more question and then, unfortunately, we will be out of time. If the first option that you spoke about was put forward and politically did not get out of Parliament and was not passed as a bill, what do you think that would do to the cause, again for want of a better word? Do you think that would progress it or put it back?
Mr PARKHILL: I absolutely think it is an evolutionary thing. Like all social change, there are always steps forward and steps back. We have seen that in the States with equal rights for African-Americans. There will always be steps forward and steps back for all longer term social change. I cannot foresee into the future what that would look like.
CHAIR: That is difficult, I agree.
Mr PARKHILL: I would imagine it would be a catalyst for ongoing change with a greater articulation and understanding about how we move forward.
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CHAIR: Again, do you accept there are differing views on that? Some would say that something that got up—whether that is a civil union or something similar—would progress the cause that you are advocating for versus something that goes in and gets voted out at the very first instance, and legislators may be reluctant to bring it back again at a later stage. Is that the counter view?
Mr PARKHILL: Yes.
CHAIR: Thank you for your time this afternoon and your submission. The Committee appreciates you coming before us today. The Committee has resolved to have the responses to questions you have taken on notice to be returned within 21 days. The secretariat will liaise with you about the response to those questions.
(The witnesses withdrew)
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JUSTIN ELLIOTT KOONIN, Co-convenor, NSW Gay and Lesbian Rights Lobby, and
ALASTAIR RODERICK ELLIS LAWRIE, Committee member, NSW Gay and Lesbian Rights Lobby, affirmed and examined:
CHAIR: Would you like to make an opening statement? If so, would you keep it to no more than five minutes. We have read your submission, so there is no need to reiterate any of the points in it.
Dr KOONIN: Thank you for the opportunity to appear before this hearing. The Parliament of New South Wales has a proud history of legislating for the rights of gay and lesbian people and their families. The passage of the Property (Relations) Legislation Amendment Act in 1999 paved the way for the recognition of same-sex de facto couples in Federal law in 2008; and in 2012 members of the Legislative Council sent a clear message to their Federal colleagues by passing a motion in support of marriage equality. Today, the New South Wales Parliament once more has an opportunity to show leadership in this area.
Each of us in the gay and lesbian community has felt the pain of discrimination and social exclusion, either our own or that of someone we love, in some way. We are here today asking for recognition of the depth of our relationship and the dignity of our sexuality. My parents brought me to Australia from apartheid South Africa as a young child; and when they did so it was with the promise of a life in a country which respected human rights and dignity and valued all of its citizens equally. In the country of my birth it was illegal for two people of different races to marry; discrimination was justified under the rhetoric of "separate but equal". However, separate but equal is never equal; and while a tiered relationship structure remains in place which privileges heterosexual relationships over others, our full humanity is denied.
Of course, what we ultimately seek is a change to the Federal Marriage Act. However, given the reluctance of the Federal Parliament to act, State or Territory based same-sex marriage legislation here and elsewhere would send a powerful message of acceptance to the country. We understand that there are some limitations to what a State law can do, and that there are with the bill before this Committee issues that need to be addressed. This inquiry is a welcome opportunity to address those issues and to move forward on an issue that affects many of us personally and deeply. I think Mr Laurie would like to say something if there is time for that.
CHAIR: Yes.
Mr LAWRIE: I have been asked to appear on behalf of the lobby both as a committee member and as someone who is directly affected by this inquiry. My fiancé Steve, who is seated behind us, and I have been together for more than four a half years, and we have been engaged for more than three years. However, unlike most engaged couples, we knew that at the time we got engaged that because of the Federal 2004 Marriage Act amendments our prospective wedding would not be legally recognised in our own country and that the Federal Government at the time did not issue certificates of no impediment to get married overseas. Since then we have been actively playing the waiting game—waiting to see if the Australian Labor Party National Conference would agree to marriage equality; waiting to see how Federal Parliament would vote; and now, waiting to see whether New South Wales will introduce same-sex marriage. More than three years since Steve said, "Of course I will," we are still waiting to see whether we can both legally say, "I do." Of course, we cannot and will not wait forever.
Fortunately, certificates of no impediment can now be issued, so that getting married in another country is a possibility. This could even include New Zealand after this week's debate. But getting married in another country is significantly more expensive; it means that many family members and friends will not be able to attend our special day, and the marriage would still not be legally recognised at home. Please do not misunderstand me; we are glad to have more choices now than we did in January 2010. But those choices come with costs—legal, financial, social and emotional.
Steve and I, and thousands of other same-sex couples across New South Wales, are confronted with these negative consequences right now. Critics of marriage equality often claim that its introduction would be a form of social engineering. To the contrary, I submit that it is social engineering to determine that only people of a particular sexual orientation or indeed gender identity or sex have certain rights. Surely it is an arbitrary and intrusive level of State intervention for governments to determine on these grounds whether a couple can get married under the law, how long they might have to wait, where they can do that, whether they have to go
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overseas, how much it costs, and who can attend. These are the real world consequences of the decision of this inquiry and the Parliament.
The Hon. HELEN WESTWOOD: Thank you for being here this afternoon to give evidence. I will begin by referring to some of the evidence presented to the Committee at the last hearing. Have you had the opportunity to look at that evidence?
Mr LAWRIE: Yes.
Dr KOONIN: Yes.
The Hon. HELEN WESTWOOD: I particularly refer to the draft bill, and I know you have also seen that. The evidence was that the inclusion of transgender and intersex people being able to marry under same-sex marriage law in New South Wales presents constitutional problems. Indeed, the advice presented by Professor George Williams was that even in its current form the bill would be inoperable and would be in conflict with the Commonwealth law. Do you agree? If we amended the legislation to remove that reference and to change the long title of the bill so that it no longer included transgender and intersex people—that is, it included only people of the same sex—would the lobby still support it?
Dr KOONIN: To answer the last question first, yes, if the scope of the bill had to be narrowed for constitutional reasons to include only same-sex couples and if that meant it had a far greater likelihood of passing, we would support it. In fact, our submission draws attention to the fact that this is called a marriage equality bill and that there is a note to the extent that there was no intention to discriminate against people who are intersex. However, the bill does appear to discriminate. If an intersex person presents with an X on their passport, as can happen, it appears that under this bill they can marry other people who also have X on their passport. So, even though we completely understand the intention to be inclusive, the bill does not appear to be. Under those circumstances, and given the additional constitutional issues, we would rather it be called a same- sex marriage bill and have a stronger chance of passing.
Mr LAWRIE: Obviously we think all adult couples, including everyone from the lesbian, gay, bisexual, transgender and intersex community, should be able to marry the person they love. The Commonwealth Parliament failed in its duty last year to enact that legislation. That has put the responsibility back on New South Wales. If the consensus of the advice is that New South Wales can do it only for same-sex couples, that would be disappointing for the other people involved, but we think that it should legislate to the fullest extent possible.
The Hon. HELEN WESTWOOD: Do you have a view about the advice the Committee received on the constitutional grounds of the inclusion of transgender and intersex?
Dr KOONIN: I think we would probably defer to the esteemed legal experts who gave evidence last week but who could not necessarily agree amongst themselves. It is a difficult constitutional issue and we would be seeking advice on it.
The Hon. HELEN WESTWOOD: Reference was also made dissolution. We heard evidence that same-sex couples who marry under New South Wales same-sex marriage law would be disadvantaged if those marriages were dissolved compared to those who have de facto relationships under existing laws. Do you have a view about that?
Dr KOONIN: My understanding is that this was raised especially by Professor Parkinson.
The Hon. HELEN WESTWOOD: That is correct.
Dr KOONIN: The issue related in particular to the partitioning of superannuation. A couple married under a State same-sex marriage law would have access to the State Supreme Court whereas a couple registered as a de facto couple under Federal law would have access to family law. We certainly would not want this bill to be retrograde step for same-sex couples. I understand that the Tasmanian bill was different and did allow access to people registered under the bill to Federal family law. Perhaps you could ask Australian Marriage Equality and Mr Croome, who had a lot to do with that bill. I think this inquiry is important so that we can iron out these difficulties with the bill as it stands. We would support an examination of these issues.
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The Hon. HELEN WESTWOOD: Mr Lawrie, do you have anything to add?
Mr LAWRIE: Nothing further on that, no.
The Hon. HELEN WESTWOOD: You may have heard some of the evidence that we received this morning regarding children raised by parents in same-sex marriages and the impact on them. I know that you advocate for the children of parents in same-sex relationships. Again I ask you to lend your mind to that in terms of family law. Do you think that children of same-sex couples would be disadvantaged if they married under a New South Wales law?
Dr KOONIN: I think the current disadvantage is that children of same-sex parents do not have the opportunity to say that their parents are married. There has been a lot of evidence that same-sex marriage for example in the United States and through the research of Professor Lee Badgett—I know Lee Badgett was referenced in the Australian Marriage Equality submission but we would be happy to supply evidence. This is an important thing for children to be able to say that their parents can be married. We can only see that for these children this law would be beneficial.
Mr LAWRIE: Just to add a real world example to that: My fiancé's sister and her partner have now been engaged for just as long as we have. They have two beautiful young daughters. They desperately want to be married and to have their children have married parents. They are prohibited from that at the moment.
The Hon. GREG DONNELLY: Thank you for coming along today to give evidence. Mr Lawrie, in your opening comments you said words to the effect that it is arbitrary to restrict marriage to the way in which it has been defined up to this point. Is it arbitrary to restrict marriage to just two people?
Mr LAWRIE: I think if you are wanting to ask questions about polyamorous relationships that that is not in the terms of reference or in the content of the bill, but I do not particularly want to take a position on that. I think we are advocating for the recognition of same-sex relationships between two people.
The Hon. GREG DONNELLY: So you have got no comment about that?
Mr LAWRIE: On polyamory I personally do not have a comment about that.
The Hon. GREG DONNELLY: Perhaps Dr Koonin, do you have a position or does the organisation you represent have a formal position in regard to that matter?
Dr KOONIN: We do not have a formal position. It is not part of our submission that we should be recognising relationships between more than two people at the current time and in none of the jurisdictions around the world where same-sex marriage has been legalised has that been put forward as a credible next step.
The Hon. GREG DONNELLY: Without cutting you off, you specifically said in answering that question "at the current time". What do you mean by that?
Dr KOONIN: We have no intention of advocating for polyamorous marriages. I would suggest that the same argument could have been made in my country of birth when interracial marriages were illegal. We could have said at that time that we cannot make interracial marriages legal because one day people may be advocating for same-sex marriages. If we did that then interracial marriages may still be illegal.
The Hon. GREG DONNELLY: That is a false dichotomy using that example because we are talking about a difference in skin colour, if I understand that it is a South African example being given. The example that we are dealing with here is the sexual acts of two people. There is a distinction surely between those two.
Dr KOONIN: But the definition of marriage has evolved throughout time.
The Hon. GREG DONNELLY: Would you like to explain what you mean by that?
Dr KOONIN: There was a time where women were the property of their husbands. We now do not recognise that as a reasonable definition of marriage.
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The Hon. GREG DONNELLY: The key elements of marriage, as I understand it, have been between a man and woman in a relationship that is intended to be permanent for life. Those elements have been elements for a marriage, as far as I can tell, going back heaven knows how long. Are you saying there have been different understandings of marriage generally accepted by cultures over time?
Dr KOONIN: That is true. The cultural definition of marriage has evolved over time.
The Hon. GREG DONNELLY: Do you think what is being proposed here is just a further evolution of the issue?
Dr KOONIN: We would regard it as an evolution in the context of a society which knows more than it did centuries and millennia ago and which is more tolerant and accepting. We recognise that there are different views. I think it is important to point out that at no stage have we suggested that organisations religious or otherwise who do not wish to solemnise marriages between two people of the same-sex should be forced to do so. We recognise there are different views. But in the context we are talking, marriage is a civil institution governed by secular laws and we are a pluralistic society and I think our Parliament needs to take that into account.
The Hon. GREG DONNELLY: On the issue of the constitutional matter that has been asked about to some degree up to this point, your submission does not deal with that in significant detail except for pages 2, 4 and to some degree page 5. In that you draw on the opinion of Professor George Williams. Do you have any other legal opinions or advice or references that we could go to support Professor Williams's position?
Mr LAWRIE: I think from our submission we have certainly said that Professor Williams has said it leaves open the possibility that States can legislate. I think listening to and reading the testimony of last week's hearings there are definitely multiple views and multiple people who hold the view that it is a possibility. In our position we are not constitutional lawyers, we are not submitting on the constitutionality of it other than to say if it is a possibility, and we think that is a plausible case, then we think it is incumbent on the State Government to attempt to do it and then it would be up to the High Court to decide.
The Hon. GREG DONNELLY: Are you saying it is a plausible case because Professor George Williams says so? I am just trying to understand the basis of your assertion that there is a plausible case.
Dr KOONIN: I think there were a variety of opinions expressed by the professors last week. Professor Williams is an eminent lawyer and an eminent scholar. If you are asking for particular individuals to reference, we do not have any right now. But, as my colleague said, we need to show that this is arguable at the level of the High Court; not that we have to go any further than that.
The Hon. JAN BARHAM: One of the terms of reference is about changes in social attitudes. You mentioned marriage changing over time. How has your organisation seen that change? With the surveys and work that has been done, what is the general feeling in that movement on the position of marriage?
Dr KOONIN: We know that in 2004 when people were asked, "Do you support marriage equality?" or some similar question less than 40 per cent—I think the figure I have in my head is 38 per cent—of people were supportive. By about 2010 that figure was over 60 per cent. Consistently in virtually every poll that we have seen the figure now across Australia is between 60 and 65 per cent. So there has been a significant change in public support for marriage equality, not just in Australia but around the world. We know that our neighbours in New Zealand are very close to legislating. We know that the United Kingdom is very likely to legislate. We know that the American President has indicated his support. Within our own community the figure quoted in our submission was a 2006 figure that 86.3 per cent of people think that same-sex marriage or marriage equality should be legal. We have not surveyed on that particular issue within the community since then but I think it is a pretty fair guess that the figures would be higher.
The Hon. JAN BARHAM: And the idea of "marriage" being the important word in this, we have heard about civil unions but marriage is important because of that broader social context and understanding that people have about the meaning of it and the intent. When was the parents group established and how much has it grown? Is there a broader group of supporters around family and friends? How big is that, or is that giving an indication that there is growing support in society?
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Dr KOONIN: I cannot tell you when Rainbow Babies, as it is called, was established but we have worked collaboratively with them over a number of years. I believe approximately 20 per cent of lesbian couples have children at the moment, and that number is growing. We have seen that in the past few years when lesbian couples are finally allowed to register the names of both mothers on a birth certificate that has been taken up by many couples. I believe the figure is approximately 1,000. It is certainly true that in our community having children is more accepted and more normalised than it was, and that is only increasing.
The Hon. JAN BARHAM: I was asking about the parents and friends who support same-sex marriage and the broadening in society of not just the surveys but more people are turning up to Mardi Gras and more people coming out. This morning a gentleman spoke out as a father to the Committee. Is there more than just the polls and surveys? Is the change happening for people within the LGBTI groups who feel there is a stronger support in society for the idea of marriage?
Mr LAWRIE: I think absolutely. This is an issue where acceptance and support in the population has left our parliaments behind; there is clearly the majority of the population who support it. It is important to remember that for every same-sex couple, or non-opposite sex heterosexual couple who wants to get married, they have their own parents, friends and networks who support them in that decision. Those people are also affected. They should be able to go to the weddings of their children who are gay or lesbian in the same way they go to the weddings of their children who are heterosexual. I think that we are not just talking about people who are LGBTI themselves but everyone with whom they are connected in society and that is why there has been such a groundswell of support for it.
The Hon. JAN BARHAM: What is the effect of the current situation where there is discrimination on the health and wellbeing of people? Have you got evidence or do you want to add anything more about its effect?
Dr KOONIN: I can point to the research done by the national LGBTI Health Alliance. We would happily forward the Committee some of that information about the impact of social exclusion on the mental and physical health of our community. The Committee heard from ACON this morning. As I mentioned earlier in this hearing there is also evidence from America that when same-sex marriage is legalised, that has a positive impact on the community.
The Hon. JAN BARHAM: Is the word "marriage" important for the reason that it gives that broader social context? The position on "civil union" is second-class, as you and others have referred to, but still preferable to the current position? Is that what you say?
Dr KOONIN: I would say that civil unions may be an improvement, but a very marginal improvement over what we have. The two issues are that marriage is recognised. If you turn up to a hospital and say you are married people understand what a marriage is: they may not understand what a civil union is automatically. Marriage is recognised. The second issue is one of differential treatment. I think our community regards the differential treatment whereby we do not have the same choices and the same rights as a statement that our full humanity is not being respected.
Mr LAWRIE: I think it is about cultural acceptance, and it is about very real examples. My sister married the man she loves, my brother married the woman he loves, why should I not marry the man that I love? When we propose to each other we do not say, "Will you civil union me?" It is, "Will you marry me?" because of the cache and the meaning of that term.
The Hon. CATHERINE CUSACK: I think we all agree that the institution to date in Australia has evolved envisaging a man and a woman in a relationship. Do you have any comment on the use of the terminology that reflects it is husband and wife? How would it be impacted by removing the gender requirement of the partner?
Mr LAWRIE: My partner and I would certainly refer to ourselves as husband and husband. In terms of legislating, there is certainly a range of options that you can include. Everyone could be spouse and spouse. I do not know whether we have a formal position on what should be prescribed in that sense though.
The Hon. CATHERINE CUSACK: Are there any tax law implications? Would it differ whether it was State or Federal legislation?
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Dr KOONIN: That is a good question. We would be happy to take it on notice. I do not know the answer off the top of my head or to otherwise refer to the evidence of the legal experts last week.
The Hon. CATHERINE CUSACK: Tax laws seems to presume a man and a woman so there are benefits such as the dependant spouse rebate which has been available for ages, which envisages a mother at home looking after her children. I do not have any in-principle objection to all of this extending but I wonder if the nature of marriage as it currently stands being between a man and a woman that the environment itself will need to adapt and evolve if it is opened up on the basis of gender.
Dr KOONIN: That may be true. If the environment has to evolve, that is a good thing. If there are particular questions around taxation, as I say, we are happy to take those questions on notice.
The Hon. CATHERINE CUSACK: Is this the number one issue for the Gay and Lesbian Rights Lobby at the moment?
Dr KOONIN: It is an important issue there is no doubt. There is another very important issue which is the consolidation of Federal anti-discrimination legislation. Currently, Federal anti-discrimination legislation does not protect people on the grounds of sexual orientation or gender identity or inter-sex status. So that is a really important issue for our community as well.
The Hon. CATHERINE CUSACK: Do you have any other issues or are they the two?
Dr KOONIN: I would say those are the biggest two. We are also working on the so-called gay panic, or homosexual advance defence whereby a non-violent sexual advance can be used as a ground to turn a charge of murder into something lesser. In fact, there is a current inquiry before New South Wales Parliament. There are other issues around domestic violence, in particular, and issues around homophobia in schools. If you are asking about the two major legislative issues, it would be marriage equality and anti-discrimination.
The Hon. CATHERINE CUSACK: Earlier you referred to recognising the secular nature of the institution. It is envisaged, as I understand it, that your advocates do not want churches to be force to perform ceremonies that they do not want to perform. Is that correct? Do you see that changing in the future because the incremental nature of change which we have seen through the years, the issue of discrimination by church groups is a terribly big step. Where is that issue heading?
Dr KOONIN: I wish I had a crystal ball but we have been completely consistent throughout all of the submissions on our position here and at the federal inquiries. Also I should add that anti-discrimination legislation inquiries that what happens inside a religious organisation with regard to functions which are inherently religious should be controlled by that religious organisation. So we have been consistent that if a religious organisation does not want to solemnise the marriage between two people of the same sex they should not be required to do so.
The Hon. CATHERINE CUSACK: What about discriminating against the child of a same-sex couple at a school?
Mr LAWRIE: I think that is a separate issue from what we are talking about here and arise irrespective of whether State-based marriage is implemented or not.
The Hon. CATHERINE CUSACK: But the principle is should religious groups be exempted from all these reforms?
Mr LAWRIE: I think we are talking about whether they should be exempted from having to perform same-sex marriages. I think if we are starting to talk about what schools are required to do that is an anti- discrimination law discussion and not necessarily this bill.
The Hon. CATHERINE CUSACK: So there is an application of anti-discrimination law to religious institutions, do you think? I can see us going down that path.
Dr KOONIN: As it currently stands, religious institutions are exempt from anti-discrimination law in this State. As I mentioned there is no anti-discrimination law which protects people on the grounds of sexual
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orientation or gender identity at a Federal level. Our position has been that functions that are inherently religious, and we would include marriage in that, should remain essentially religious.
The Hon. CATHERINE CUSACK: Okay.
Dr KOONIN: When there are issues of public funds and in particular in the provision of services, for example, aged care facilities and hospitals, that becomes a different issue.
The Hon. CATHERINE CUSACK: Thank you. I think that is a really great distinction.
The Hon. GREG DONNELLY: And education as well?
The Hon. CATHERINE CUSACK: No, it is a service. I think he has given a pretty clear distinction, and it is a very helpful one, too. Thank you.
The Hon. NATASHA MACLAREN-JONES: I just wanted to ask a little bit more about civil unions and whether or not you thought having a civil union bill would overcome the constitutional challenges that this Committee was presented with during our previous hearings in relation to marriage?
Dr KOONIN: It appears from the evidence of last week that it would be easier to pass a civil union bill constitutionally, but we do not believe that this Parliament is here to do easy things. We think it should do everything in its power to pass a same-sex marriage bill. How narrow that bill is in order to survive a constitutional challenge will need to be determined.
The Hon. NATASHA MACLAREN-JONES: Do you support the path of looking at a civil union bill?
Dr KOONIN: As I mentioned in response to the previous question, we would regard it as a microscopic step forward. It is not clear that it offers us that much that we do not already have, but we have not seen a State-based civil union bill before us. I guess we would need to see what it looks like before we commented further.
The Hon. NATASHA MACLAREN-JONES: What are your concerns about the differences between a marriage bill and a civil union bill?
Dr KOONIN: The concerns are: first of all, recognition—people know what a marriage is, but people do not necessarily know what a civil union is; secondly, your own differential treatment. If my friend and his female partner can get married, but I cannot get married, our relationships are seen as less than.
Mr LAWRIE: I think in our submission we did talk about not supporting civil unions as a substitute for marriage equality, and we say that on the basis that there should not be a distinction between heterosexual and gay and lesbian, transgender, bisexual or intersex. There should be no distinction in the rights that they are given, in which case everyone should have the same access to marriage as a term. If they cannot be given that at the current time by the Federal Government, if it can be given by the State Government, it should be, we think.
Dr KOONIN: If I could add this: We have seen in jurisdictions where civil union laws have passed— for example, New Zealand and the United Kingdom—that those laws have been superseded by marriage equality laws for precisely these reasons.
The Hon. NATASHA MACLAREN-JONES: Thank you for drawing my attention to the comments you made in your submission. You say that civil unions are not able to be transferred or are not portable in the same way a marriage is, and that it also creates legal inequalities. I am interested because I have been looking at some of the comments that have been made by Australian Marriage Equality in a statement that they put out in October and also December 2011 in response to Queensland. It actually states it is from the national convenor, Alex Greenwich, and that the civil union bill passed by Queensland allows for the recognition of overseas same- sex marriages. They also state that it provides legal security. Would you disagree with that, or would you think that there is scope for States to be actually able to implement something that could be recognised?
Dr KOONIN: I guess it would depend on the bill. The bill in Queensland you are talking about is different from the bill in New South Wales and different from the bill in Tasmania.
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The Hon. NATASHA MACLAREN-JONES: No, but if there was that scope—you would think it is enough?
Dr KOONIN: If there was scope for it to be recognised in other jurisdictions, certainly that would be a good thing. It is not clear that they would be.
The Hon. NATASHA MACLAREN-JONES: But you would accept that it would satisfy?
Mr LAWRIE: It depends on what you are talking about in terms of recognition. So saying overseas same-sex, or other jurisdiction's same-sex marriages, are recognised, are they recognised only as civil unions in that jurisdiction? So they said, "Even though you are married legally in another country, we're going to tell you that you are civil union partners, and that's all you are."
Dr KOONIN: To answer the question, "Would it satisfy?", well, it would satisfy the fact that we would like our relationships to be recognised overseas. Would it satisfy the fact that we would like the same relationship recognition as heterosexual couples, no it would not.
The Hon. NATASHA MACLAREN-JONES: But I am not sure exactly why. If you are recognised within the State under our law—you are recognised. You have a ceremony where it is acknowledged and, as previous witnesses have raised that concern about a ceremony, I cannot see how it would differ. If it is the issue of not publicly being aware, then would that not be a matter of educating people for what a civil union means?
Dr KOONIN: And what it would mean is that same-sex couples are treated differently from opposite- sex couples in law, and that is problematic for us.
CHAIR: Mr Lawrie, can I just check something you said earlier? I do not if I heard you right. Did you use the term "non-opposite heterosexual couple"?
Mr LAWRIE: I would have to check the transcript.
CHAIR: But I just want to check: Is there such a thing? Is that a term?
Mr LAWRIE: I was just simply saying in terms of opposite sex, heterosexual couples—so people who would not necessarily be called male and female and not raising issues of intersex or other forms of gender diversity.
CHAIR: Okay. I just was not sure if that was a term that is used, "non-opposite heterosexual couple", because we are looking at definitions in the proposed bill.
Mr LAWRIE: If I said that, I probably misspoke what I was trying to differentiate.
CHAIR: I am not going to get caught up.
The Hon. CATHERINE CUSACK: It sounds like a tautology.
CHAIR: I was actually very confused. Your organisation represents a number of people. Roughly how many people do you have who are committee members, or purport to be represented by your organisation?
Dr KOONIN: We have a board which is currently 13.
CHAIR: Right.
Dr KOONIN: We have many volunteers. We have several thousand Facebook fans, if that counts.
CHAIR: Yes, good. It does count. I guess something that is not lost on me from today is that we have had three organisations representing those who support marriage equality, of which we have had no female representatives comes before the Committee; no-one before the Committee who is giving a lesbian's perspective in relation to this. I just want you to allay my fears in my mind that this is something that you represent and you speak for those people, which I think you do. It is just that we have not been able to hear that today, as evidence.
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I would have thought that if we are hearing from all of those who are affected by this, then we may have heard from some of those people today. I know that we have had submissions, and plenty of those, but please put my mind at ease in relation to that.
Mr LAWRIE: I would just add something quickly on that. Obviously we have a co-convenor attending. We actually have at least two members of the committee of management who are engaged to be married—there is myself and there is a female member of the committee, who is busy planning her overseas wedding, and that is partly what she is doing today—so it is not that it is not an issue that cuts across both the gay and lesbian communities. It is just the way that it turned out today.
CHAIR: For all of the organisations that came along?
Dr KOONIN: We cannot speak for the other organisations.
CHAIR: I understand that.
Dr KOONIN: There are two of us here.
The Hon. CATHERINE CUSACK: The sense is that it is more an issue for gay men than it is for gay women. That is the sense that I have been getting.
Mr LAWRIE: That is certainly not my sense of it. I have also spoken about my fiancé's sister and her partner, who are quite keen to get married, I think. We can check the figures from our 2006 survey, where more than 80 per cent of the entire community supported it, and see if we can do a demographic breakdown, on notice. But I think to get 83 per cent means that it is broad-based support.
CHAIR: Sure. But you can understand, though, the perception and how it has looked today when we have had three witnesses just to give—and I will use this term—your side of the story, and we have no representatives from the lesbian community giving their side. I know that you represent the lesbian and gay community and I am not trying to downplay this, but I think that if you could potentially provide us with some further information, we can allay this. We want to have a balanced view when we look at all of this. The perception has been created today that it has not been as balanced.
Dr KOONIN: No. We understand that and we are happy to provide further information.
CHAIR: That is great. On behalf of the Committee, I thank you for appearing this afternoon and for your submission. There are some questions that you have taken on notice. The Committee has resolved that the answers to those questions on notice be returned within 21 days. The secretariat will liaise with you to facilitate the response to those. On behalf of the Committee, thank you for your time.
(The witnesses withdrew)
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ROCCO MIMMO, Founder and Chairman, Ambrose Centre for Religious Liberty, sworn and examined:
CHAIR: Mr Mimmo, welcome to this inquiry. Would you like to make a brief opening statement?
Mr MIMMO: I should inform the Committee that I do not claim to have great expertise in the area of family law itself; I have a working knowledge being a lawyer. I do not claim to have any expertise in constitutional law as I studied it many years ago but I did major in that subject as part of my law degree. As part of my duties with the organisation I do monitor international movement in terms of the discrimination question with respect to family and relationships and also questions of human rights, which was a subject in my Master's degree in law. With that, I would like to help in any way I can.
CHAIR: Are you happy to start with questions?
Mr MIMMO: Certainly.
The Hon. HELEN WESTWOOD: When I had a look at your website I noticed your survey on marriage equality. I was particularly interested in the findings that you referred to as the "first cut" findings of that survey. In response to the statement: "If same-sex couples value marriage highly, they should be allowed to share in it" 64 per cent of your respondents agreed, 9 per cent disagreed and 27 per cent were neutral. Having done that survey, I am wondering why your conclusion still is that there should not be marriage equality for Australians?
Mr MIMMO: Thank you very much for that question; it is a good lead-in question. I just happen to have brought copies of that survey with me and I am happy to give them out to Committee members. Along with the copies of the survey I also have extracts from that survey, some of which are opinions arising from the survey and some are facts. One of the questions that arises, despite that figure that you gave, is when the question was put to all of those same respondents: Do you think it is an important matter that people should be allowed to enter into same-sex marriage or that the marriage laws should be changed to allow that to occur? only 14 per cent regarded it as important, whereas on the other hand 18 per cent strongly opposed it. So if we were to take that as a measurement, whilst sentimentally many people do regard people being allowed to get married perhaps should be okay, very few people—14 per cent only—regarded it as very important in any sense. It is for that reason in my submission that I draw the conclusion that there is no public hunger for this subject at all.
The Hon. HELEN WESTWOOD: Public hunger is an interesting point. You talked about the areas of law in which you are interested—you talked about discrimination and human rights. Taking it from the perspective of human rights, even if there was no public hunger for laws that enshrined people's rights do you think that is a reason for a government not to act upon it?
Mr MIMMO: I did not mean that. Whether governments act on it or not is a decision, the question of the human rights is in response to those people who advocate for same-sex marriage and say that the denial of same-sex marriage in fact boots this human rights law. That was the reason why we refer to the fact of no human rights are involved. International jurisdictions in particular, I might point out, the European Court of Human Rights just in the past 2½ years has twice reaffirmed that there is no human rights for same-sex marriage. Again, if you would like, I am happy to provide the citations for those two cases.
The Hon. HELEN WESTWOOD: You also talked about discrimination. I am sure that as a lawyer you would come across cases of acts of discrimination against clients. I am wondering whether or not you accept the argument that discriminatory attitudes come from a culture and perception about groups within our society and those groups are discriminated against, and it is argued that whilst same-sex attracted Australian people do not have equal rights to marriage, that categorises those Australians as not equal to and reinforces negative stereotypes and actually validates discrimination against those groups in our society. Do you believe there is any validation to the argument I am putting to you?
Mr MIMMO: With respect to the issue of whether they can or cannot get married, that being a factor which determines the definition of discrimination, the answer is no, I do not believe there is any discrimination on those grounds. If there was a denial of entitlement, such as welfare, government assistance or no equal access to the law then clearly that would constitute some grounds for discrimination. The word "discrimination", of course, means all sorts of things to all sorts of people—this is one of the unfortunate things about it. In the international area of human rights, discrimination is largely confined to matters of personal characteristics:
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colour, race, gender and so on, and also, I might add, religious beliefs. Nowhere does it appear that same-sex attracted people have a special category or recognition under the general definition of discrimination. That in no way, by the way, undermines or lessens the respect for or attitude towards the individual who is same-sex attracted. Those people are equal in rights and dignity.
The Hon. HELEN WESTWOOD: If I can put to you though that people who identify as gay and lesbian experience discrimination in everyday life. They may be discriminated against in their workplace. They could experience name-calling, the lack of promotion within their career, which they believe is a consequence of their sexuality, and their colleagues' or employers' discriminatory attitudes to their sexuality. Do you believe that that exists? Do you believe that is something we as a society should try to address?
Mr MIMMO: Yes, I do. There are laws in every State that prohibit that right now, and the Commonwealth even has laws to that effect. So, anybody who behaves in a discriminatory manner in the workplace is subject to the laws, and that is prohibited at the moment. There is no doubt, all people are equal in this respect. Their sexuality is not a determinant issue at all. In that respect I would have no reason whatsoever other than to support discrimination laws that prevent people treating others differently just for the sake of it or because of prejudice or because of a bias. I see no value in that at all.
The Hon. GREG DONNELLY: What I want to particularly focus on is this issue of religious exemption. Have you seen a copy of the draft consultation bill?
Mr MIMMO: No, I cannot say I have.
The Hon. GREG DONNELLY: In the draft consultation bill there is a clause 7, "Ministers of religion not bound to solemnise same-sex marriages," and it goes on to provide what I think people supporting the proposal to change have articulated as protection of sorts for religious ministers being required to solemnise same-sex marriage. Can I go to this more general point, though, about religion being more than just a minister inside a church overseeing a marriage itself. Are we really providing protections for religion by having a provision like this or are we fooling ourselves? Such a provision is very narrow and such a provision, for example, does not cover other activities, faith traditions, whatever they are.
Mr MIMMO: Yes, thank you. I think there are several parts to the answer here. One is that the current Marriage Act 1961 already has a provision that prohibits ministers of religion from officiating at any marriage ceremony they choose not to officiate at. In other words, there is no compulsion. That already exists in Commonwealth law. The fact that it would be mirrored in any proposed legislation in New South Wales would not be surprising and would be consistent with that provision.
Number two, I think the question was is ministers of religion too narrow an area to give exemption to? In terms of celebrating a marriage or solemnising marriage, it should extend to all celebrants in terms of religious beliefs, and, thirdly, the question of whether it should apply to a wide range of people in the community engaged in various activities, particularly people involved in delivery of goods and services who might be called on to somehow participate in and by their participation be deemed to be supporting the concept of same-sex marriage, they would have no protection at the moment and certainly would not be covered by that reference you put to me.
In that respect it would be very narrow. In that respect it could be very harmful to the people who have religious beliefs. One of the issues, again, at international law that has been accepted and one of the reasons also why religion and conscience and thought are protected under all international human rights instruments is that it is accepted that a person who adopts a religious belief in their life, that religious belief becomes part of the person. This has also been recognised by the High Court in the payroll tax case. It means that a person who adopts a religious belief to that level, to that depth, forms their life around that belief and behaves in accordance with that belief, and that belief to them represents the pathway to life after death. So, it is no small matter in their make up and it is deemed and recognised at international law that that belief in fact becomes part of the person. So, any disturbance to that belief by way of a coercive State law that compels people to act against that belief upon pain of some lawful sanction would be very oppressive and coercive.
The Hon. GREG DONNELLY: Related to that, can I also ask you to comment on this? With respect to the notion of exemption or protection, that they in and of themselves are potentially quite fragile in that they may sit in a piece of legislation but—for example, it is my understanding that the review that is taking place
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now with respect to anti-discrimination at the Commonwealth level, there are organisations that support same- sex marriage seeking to remove exemptions that exist for religious organisations in existing legislation?
Mr MIMMO: Yes, that is correct. It goes further than that. There is a very strong body of opinion inside the Human Rights Commission that it is a good argument to run that all exemptions ought to be removed in order to treat everybody equally, and applying exemptions puts a bar on treating all people equally. Secondly, I think we need to see some case laws in Australia where there are exemptions for religious organisations and religious beliefs that have come up for challenge. There is a current case before the Victorian Court of Appeal in which the Ambrose Centre was given leave to intervene as amicus curiae. The case is generally known as COBALL. The Victorian legislation at the time, the equal opportunities legislation at the time, provided for exemption for organisations of a religious character and/or for religious purposes.
COBALL was an acronym for a group of organisations who recruited and provided forums for people who were same-sex attracted or who had some doubts about their sexuality and they wished to hire a resource centre from the Christian Brethren organisation on Phillip Island. The Christian Brethren organisation said it boots their religious beliefs. It went before the Victorian Civil and Administrative Tribunal and has now been appealed to the Victorian Court of Appeal. The issue before the Victorian Court of Appeal is to what extent should the exemptions be applied? In other words, should the religious belief trump a question of sexual orientation and, secondly, what is a religious purpose?
They are difficulties. Even though they exist in legislation, they are not an automatic term that the courts hang on to and say, "This will apply". I think this is one of the great challenges facing the Australian community and society at the moment: How to bring a balance in terms of recognising the respective rights of all people. So they are fragile terms. Exemptions are fragile. Alternately, they are subject to further scrutiny and review by the courts and ultimately subject to the eloquence of the submissions put before the court so they do not automatically apply.
The Hon. JAN BARHAM: In your submission you refer to the fact that you believe there is very little public demand for this.
Mr MIMMO: Yes.
The Hon. JAN BARHAM: It is actually "a small handful of ideologically driven individuals".
Mr MIMMO: Yes.
The Hon. JAN BARHAM: What do you make of the broad support that has been out there? We have seen it in the Parliament, a level of support, and in other parliaments in Australia. Does that negate some of your other positions when you make a comment like that when it is obviously against the tide?
Mr MIMMO: No, I do not think so. This question has never been put out there for a full public debate in the true sense of it. If people truly wanted to test the extent of this matter, let it go to a referendum. I am quite comfortable with that, and I feel quite comfortable with the outcome of such a public referendum. The issue of same-sex marriage is always preceded by allegations of "You are discriminating. You are treating us unfairly". Very few people want to be associated with behaviour which is said to be discriminatory. Very, very few people wish to be accused of saying, "You are not treating us equal". They are very loose terms but they do not apply in fact. I know of no law at all in Australia which treats any person in the community differently. If you can enlighten me on that, I would be very grateful. But I am not aware of one law which treats people differently. If you are talking about couples, then you are talking about a different concept of the person. You are talking about a couple; you are not talking about the individual.
The Hon. JAN BARHAM: But in this situation we are talking about marriage equality so that people can be treated equally. Do you have a position about whether or not people are disadvantaged and discriminated against and that affects their quality of life and the way they live in our society?
Mr MIMMO: And they live perfectly the same as you and I. That is the first point. The second point is there is no discrimination towards their attraction to one another. If it is based on love, it is love.
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The Hon. JAN BARHAM: But the inability of people to express to others in society that they do in fact have a life that includes a loving relationship, a special connection with another human being. We live in a society where people wish to express that to the world but they are denied that right.
Mr MIMMO: And they are entitled to have it.
The Hon. JAN BARHAM: They are entitled to have the right to express that?
Mr MIMMO: They are entitled to have the right to be recognised as a loving couple. That is an entirely different question to what underlies that question to me in this respect. Your question to me can only be fulfilled by legislation.
The Hon. JAN BARHAM: No. My question is: Can you give me another word that someone who is in a relationship and wants to express and explain to the world that they are in a relationship of value, they love someone, they wish to spend the rest of their lives with them? What other word is available for them to use to let everyone know that that is the life they live?
Mr MIMMO: Other than marriage?
The Hon. JAN BARHAM: Yes.
Mr MIMMO: Other than "marriage", because "marriage" has throughout civilisation and tradition carried a different meaning. The idea of marriage needs to be seen in the context of why the State takes an interest in marriage for a start. The State does not take any interest simply because two people are in love.
The Hon. JAN BARHAM: My interest is on page 4 of your submission, cultural impact. I am interested—it is one of our terms of reference—in the cultural and social impact because I believe that is where the discrimination is. A certain group of people in our society are not able to announce to the world their relationship in a way that has meaning and understanding for the rest of the world. That is the crux of it being a discrimination, I believe. I am wondering whether you know of another word that could be used or any other way around that point of discrimination.
Mr MIMMO: I am not sure that the usage of words conveys the full message. The word "marriage" conveys a message. The message of marriage is one that two people come together and have in a sense committed themselves to try and found a family. That is what the protection under the international instruments on human rights is all about when it refers to "marriage".
The Hon. JAN BARHAM: Is it purely for that purpose of family and children?
Mr MIMMO: It is for the purposes that two people who have a capacity for it—not who do but in fact who have the capacity to do—may deliver back to the community issue which regenerates society.
The Hon. JAN BARHAM: What about seniors?
Mr MIMMO: What about seniors?
The Hon. JAN BARHAM: People who are beyond the physiological ability to do that. Are they denied the right to marry?
Mr MIMMO: I was once told a story.
CHAIR: Here we go.
Mr MIMMO: Not a story. I was once told this in a law class on marriage law. The common law does not say that the woman is ever beyond the capacity to reproduce. I would like to see that, by the way. Nonetheless that is not an issue here.
The Hon. HELEN WESTWOOD: There are a lot of women who would not, I can assure you.
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The Hon. JAN BARHAM: Can you think of another word that for all intents and purposes has broad understanding in society about the love between two people?
Mr MIMMO: You live by example. I think the real issue is that people in a same-sex relationship simply want to adopt the term "marriage"; its cultural effect is not to enhance the relationship—I say that respectfully. It does not endow the couple with any greater liberal rights, social rights, welfare rights or recognition rights per se. What it does do is open up the issue of relationships to public scrutiny. Relationships are not an interest for the State. I would respectfully submit that the State does not have an interest in merely endorsing relationships for the sake of relationships. They are private matters. Once the State says, "We will endorse and recognise that relationship", then all laws must fall in line with that recognition. That is in a discrimination area. If any human rights are impacted, then they must follow. That means that schools must comply with those laws. That means that young children need to be told that this is a natural, normal relationship.
The relationship itself, physical without sex, is okay. The implication that it involves a sexual relationship is not okay to suggest that it is a normal, natural relationship. There was a case in England called the Burden sisters before the European Court of Human Rights. Because they were not in a relationship—they were elderly people who were denied the right to enter a civil partnership, and they were only denied because they were not engaged in a sexual relationship—they were not entitled to various benefits of the State. The Burden sisters case went to the European Court of Human Rights and they upheld that position, even though they were disadvantaged, even though they were forced to lose their home, the only abode they had, and were forced to live separately as a result of that. The absence of a sexual relationship is critical to the State recognising their relationship.
Your question to me is: In what other way can they express to the world their relationship, their love for one another? They do it by living together. That is their business. The State has no interest in that. The State's interest is only in the capacity of a procreative relationship, only because it might derive benefits. If you say to me that marriage therefore would be regulated and only women under 45 should get married, you would be game. I am not game to say that. I will leave it to you.
The Hon. JAN BARHAM: You have just said it. I did not say it.
The Hon. NATASHA MACLAREN-JONES: Obviously, the key issue with civil unions is the word "marriage" and the constitutional challenges particularly for this bill. Do you have a particular view on civil unions for same sex couples?
Mr MIMMO: By way of legislation?
The Hon. NATASHA MACLAREN-JONES: Yes.
Mr MIMMO: Again, it is just adopting a title. It does not confer any greater rights, recognitions or benefits to the couple in the relationship. Incidentally, New South Wales already has the Relationship Registration Act, so people can register their intentions of wanting to be together and as a result of that they get special recognition. A civil partnership Act or civil unions Act in the sense that—I just gave the example of the Burden sisters—a sexual activity is seen to underlie that relationship, to that extent I would oppose the State endorsing that relationship because it leads to the same position as same sex marriage consequentially. That is, the effects on discrimination laws, what skills need to teach what people can and cannot do in their private lives et cetera. It is for that reason and no other reason I simply say the State has no interest in simply endorsing a relationship because it is based on love and emotion and application of personal gratification or satisfaction, whatever.
The Hon. NATASHA MACLAREN-JONES: In your submission you referred to research from overseas. You referred to the Witherspoon Institute journal talking about cultural change in Canada. Could you go into more detail on that?
Mr MIMMO: Yes. In Canada there have been several cases recently before the Supreme Court involving the education of children. New legislation that has come through is that every school must have what they call a sexual orientation club—every school. This means that for people who identify as same sex attracted—these are young kids; I am not talking about adults, and I cannot recall precisely at what grades it comes in, my recollection is that it just applies to the school—they must offer these clubs to all of the students.
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Once a club has been established the school must support that by way of funding and time allocated to its people. They can receive tuition about their sexuality. That might be a consequence of the same sex marriage legislation, but parents cannot withdraw their kids from it. The parents have lost their right under that legislation to prevent or prohibit their children from attending. That is one cultural effect. With respect, I think I need to be clear on this, it is either Article 2 or Article 4 of the International Covenant on Civil and Political Rights where parents have the primary obligation and responsibility as their fundamental human right to educate their children in the areas of their choice. The Canadian development here defies that human right. So parents have lost that.
The Hon. NATASHA MACLAREN-JONES: I am interested in your comment about religious institutions being prevented from teaching marriage between a man and a woman. Is that correct?
Mr MIMMO: Yes. You cannot restrict it to just that. That is what it means. They cannot be restricted to just teaching that. They must teach all things.
CHAIR: Earlier you said you did not know of any Australian law that discriminated against people. Is that not why we are here? Is there not a perception that the Marriage Act as amended in 2004 to include that clear definition between a man and a woman prevents a woman and a woman or a man and a man from getting married? Am I missing what you were saying? Could you please explain that?
Mr MIMMO: The question was not put like that. The question was about not being treated equally. I said I know of no law that does not treat everybody equally.
CHAIR: I now put it to you. Does that treat it equally or is that separate to what you were talking about earlier?
Mr MIMMO: No because marriage has a meaning in its tradition—across all ages and all civilisations—of what it is designed to mean. I have gone into that. It was designed to accept that people come together with an intention of furthering to the community, to society, by appropriation. So it is appropriated relationship where people commit themselves with a purpose to that extent. The follow-up question was, What about people beyond capacity, which is a fair question. The question was, If you are beyond capacity, how do you say, "You can't get married, you can't fulfil"? But I presume even in those categories they have children from previous marriages or children through some other way.
The Hon. JAN BARHAM: Presumably.
Mr MIMMO: So there is still that sort of connection.
The Hon. JAN BARHAM: That was not what I meant when I asked that question.
Mr MIMMO: I am sorry.
The Hon. JAN BARHAM: It was about people later in life. I have never married.
Mr MIMMO: That is your choice, of course. You are not denied from doing that. That is the point.
The Hon. JAN BARHAM: Some might say it is bad luck and now I am hearing I would not have the right.
Mr MIMMO: But every individual has the right to marry. That is not the issue. The issue is, can individuals therefore choose a different course to what marriage is understood to be and still claim to be married and just say, for what purpose? If it is to announce to the world that you love one another, then the law is not necessary for that. What interest does the law have in that anyway when it does not prohibit you from doing it? They are practical questions that apply here. A five foot five inch, in the old system, person—
CHAIR: Be careful where you are going with this.
Mr MIMMO: Yes, I understand perfectly well. A five foot five person would have great difficulty breaking into the Kings basketball team compared to someone who is six foot four or six foot five. Is that inequality? Is that a bad hand at birth? Is that being discriminated against?
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CHAIR: But would they be allowed to try out?
Mr MIMMO: They could.
CHAIR: Is that not the point? Even though they might not make the cut, they still have the ability to turn up and play the game?
Mr MIMMO: These people do play the game.
The Hon. CATHERINE CUSACK: I do not know that people have a right to play basketball for the Kings. I do not think that is a right.
Mr MIMMO: These people do play the game. They live together, they enjoy one another's company. They are not prohibited from doing that. The question is that if you want to get to a particular level, there are horses for courses they say.
CHAIR: I understand your point. The example you use of the sisters living together, the distinction was the lack of a sexual relationship; there is no fear that that could then be applied to marriage.
The Hon. HELEN WESTWOOD: There are a few marriages in trouble.
CHAIR: Dare I say that potentially there are a few marriages in trouble if that were the case. Is there a distinction?
Mr MIMMO: It would be a problem I suppose. But that means that the State endorses the sexual activity of a same sex attracted couple. That is the point I am saying. It is debatable why the State has any interest in doing that for a start. It is personal gratification, personal satisfaction, whatever the case, I am not sure what interest the State has in doing that. Once the State does do that, all things must follow in terms of the law and the behaviour of people subject to the law and how they go about dealing with these relationships. Can they seek the exemption? Can they not? And so it goes on. What do schools teach?
CHAIR: We have run out of time. Before we conclude I need to ask about the documents you have supplied. One has the notation "strictly confidential". By you tabling this document it rests with the Committee to decide whether it publishes it. Are you happy if the Committee decides to publish it?
Mr MIMMO: Thank you for the courtesy on that. The Ambrose Centre for Religious Liberty commissioned that document. When it was sent to us it was sent on the basis that it was for us. We have elected to publish it, which we have done by making it available on our website and by distributing it to other people. I am very happy for you to make whatever use of that document you wish.
CHAIR: Thank you. The Committee has resolved that if Committee members have any further questions to put on notice to you the responses should be returned within 21 days. The secretariat will liaise with you to facilitate that. On behalf of the Committee thank you for your submission and for your further evidence today and for appearing before the Committee this afternoon.
(The witness withdrew)
(The Committee adjourned at 3.10 p.m.)
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