Dissenting report by Senator Barnett
1.1
I agree with recommendation 3 of the majority report, that the Bill not
be passed. I also consider that Chapter 4 of the majority report provides a
fair assessment of the benefits of maintaining the definition of marriage as
currently contained within the Marriage Act.
1.2
However, I do not agree with recommendations 1 and 2, which, in my view,
give succour to those groups within the community that seek to erode and
re-define the institution of marriage. I also disassociate myself from the bulk
of the discussion in Chapter 5, entitled 'Discussion and Conclusion' which
supports recommendations 1 and 2.
1.3
Given the general tone of Chapter 5, which is clearly sympathetic to
those who seek to allow same-sex marriage or a form of formal recognition of
such relationships by the State that mimics marriage and thus undermines it by
stealth, I am somewhat surprised at the inclusion of recommendation 3.
1.4
Recommendation 3 is supported in the conclusions chapter by a single
sentence which reads that 'the committee considers that the current definition
is a clear and well-recognised legal term which should be preserved'. In relying
on this argument as the sole reason for not supporting the bill, the majority
have ignored the bulk of the strong arguments put by the very large number of
submitters and witnesses at the public hearing. In putting up such a half-hearted
argument, the majority are essentially setting it up to be dismissed, thus
leaving the way open to same-sex marriage in the future.
1.5
In so doing, the majority have chosen to ignore the very persuasive evidence
presented that the only credible reason for the State to formally recognise
what is essentially a private relationship between two individuals by
privileging marriage is because marriage between a man and a woman has
particular benefits to society that warrant recognition and protection. As
adequately explained in the evidence, for example in the submission of the
Catholic Archdiocese of Sydney, but also by a broad range of other submitters:
It is a union that is publicly recognised and treated as
special, distinguished from other types of relationships because of its unique
capacity to generate children and to meet children’s deepest needs for the love
and attachment of both their father and mother.[1]
1.6
The majority have also apparently chosen to ignore the evidence put to
the committee that the best outcomes for children are where there is a positive
male and female role model guiding their development towards adulthood. As was
put to the committee in literally thousands of submissions, children need a Mum
and a Dad. Every child should have a reasonable expectation, all things being
equal, of a mother and a father.
1.7
Proponents of same-sex marriage have sought to underplay the importance
of male and female role models in the upbringing of children, and to discount
the importance of children in any consideration of whether same-sex marriage
should be sanctioned. They have sought instead to argue that marriage is
primarily about two people's commitment to each other, and ignore children's
rights. While I recognise that commitment is essential in a marriage
relationship, the raising of children in the best possible environment can
never be taken out of the equation. Accordingly, I find myself in broad
agreement with the view strongly put by the Australian Christian Lobby, which
was that:
Reducing marriage to a simple contract of consent and love
between two people is a revisionist approach that has neither context nor
legitimacy. It is a selfish, adult-centred approach that rejects the broader
cultural significance of marriage and its centrality to children and society.
It discards the significance of marriage as an important social good held by a
shared community as a public commitment to family and the raising of children.[2]
1.8
The majority report also apparently ignores the strongly put arguments
that children have a right to know who their biological parents are, and to be
raised by them, or by extended family. Roots are important, as the recent
lessons of the 'Stolen Generations' and 'Forgotten Generations' have reminded
us with painful clarity.
1.9
The importance of the law as a symbol, and the messages that changes to
this law would send to society at large were also ignored by the majority
report. By reducing marriage's significance to that of little more than a
generic, non-gender specific relationship register, as this Bill would do if
supported, would send a clear message that there is nothing special about the
unique roles of motherhood and fatherhood, or families built round these
concepts. This would further undermine a long-standing institution that is
already being undermined by family breakdown and apathy. The consequences of
this undermining are clear in the outcomes for the many of the casualties of
this process, both adults and children: educational failure, poverty, serious
personal debt, crime and welfare dependency.
1.10
There is a clear public good associated with the marriage status-quo. I
am of the view that this public good should be recognised and strongly
supported, and governments should do much more to uphold and sustain it, for
example through education programs and counselling for people seeking to marry,
and those already married, designed to help them build and maintain their
relationships.
1.11
However, it is clear that there are significant elements within
governments and political parties who seek to advance the cause of same-sex
marriage, thereby undermining the meaning of the institution. For example, in
November 2009, the ALP Victoria’s state conference passed a motion calling on
the Rudd Government to amend the 'Marriage Act to allow for equal access to
marriage', ie. in support of same-sex marriage, and called on the 'Commonwealth
Government not to override the ACT' same-sex civil partnership ceremonies.[3]
The Tasmanian ALP Conference passed a similar motion in favour of same-sex
marriage in July 2009. Finally, the Federal ALP's policy, while stating Labor's
commitment to maintaining the definition of marriage as currently set out in
the Marriage Act, is that:
Labor will take action to ensure the development of a
nationally consistent framework that provides...the opportunity for all couples
who have a mutual commitment to a shared life to have their relationship
officially recognised.[4]
1.12
This clearly supports the idea of officially recognising same-sex
unions, which is a further step towards same-sex marriage.
1.13
I now turn briefly to the issue that is apparently driving this Bill –
the allegation that same sex couples suffer unjustified discrimination under
the Marriage Act, as enacted. This issue is well covered in Chapter 4 of the
majority report, but it is worth reaffirming a number of key points raised in
evidence about this issue.
...there are prudent reasons why societies discriminate on the
basis of good social policy.[5]
...
'Discrimination' should not be taken as a synonym for 'unfair
treatment' or 'injustice', but should be understood as a valid social concept,
as discrimination simply means to 'distinguish' or to 'differentiate'.[6]
...
Homosexual couples now have legal rights almost identical to
those of heterosexual de facto couples... The question of ‘equality’ has
therefore already been largely answered and homosexuals are treated fairly
under Australian law in the same way that heterosexual de facto couples are.[7]
...
It is not unjust discrimination against homosexual couples to
uphold marriage as being between a man and a woman. Marriage and same-sex
unions are essentially different realities. Justice, in fact, requires society
to recognise and respect this difference.[8]
1.14
As was the subject of numerous exchanges during the committee's public
hearing, the law already fairly and rightly discriminates on the basis of age,
polygamy and family relationship.
1.15
Therefore I do not agree that same-sex couples suffer unjustified
discrimination under the Marriage Act as enacted, and consider that this
argument is essentially invalid, particularly noting legislation passed in the
Australian Parliament in 2008 to remove discrimination. For this and other
reasons I particularly reject the need for a further review to remove
discrimination as proposed by Recommendation 1 in the majority report. I also
do not support the element of Recommendation 1 which calls for further
relationship recognition, which can only be seen as an incremental step to
equate same-sex partnerships with marriage.
1.16
I also do not support Recommendation 2 regarding certificates of
non-impediment on the basis that it is inconsistent with Recommendation 3 to
reject the Bill. If the definition of marriage as currently stated in the
Marriage Act is maintained as the applicable law, the proposal to allow the
Department of Foreign Affairs and Trade to issue certificates of non-impediment
lacks integrity and would facilitate further challenge to the current law in
Australia, despite Recommendation 3.
1.17
For these reasons I submit that Recommendations 1 and 2 should not be
supported and the Bill rejected resoundingly. This sentiment was well summed
up in a submission to the committee as follows:
...the state cannot grant the legal status of marriage to
same-sex unions without failing in its duty to promote and defend marriage as
an institution essential to the public good.[9]
Recommendation 1
1.18
That the Bill be rejected.
Senator Guy Barnett
Deputy Chair
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