SAME-SEX MARRIAGE BILL 2012
Mrs ARMITAGE (Launceston) - I take this opportunity to commend the member for Murchison on her second reading speech. It was delivered with compassion and sincerity. If I could truly believe that passing this bill would alleviate all the pain, suffering and discrimination suffered by the gay community I would support this bill.
I also commend the members who have spoken and will not read out any of the emails or letters received as I feel that this has been amply covered by other members' contributions. Whilst I appreciate and respect the fact that I am elected to make a decision on behalf of my constituents, I believe that it is incumbent upon me to seek as many opinions as possible.
To date I have received in total well over 2 000 letters, emails and phone calls. I have done my very best to research and discuss this issue with as many people as possible in a variety of different forums and seek their views. Whilst there have been many in support of same-sex marriage in Tasmania the majority of the electors of Launceston that I have had contact with have been opposed to this bill for a variety of reasons.
I must say that most of the contacts have been respectful and I greatly appreciate the opinions from all areas that have been forthcoming. There was even a Facebook page set up for me by persons unknown, which gained quite a lot of attention.
One of the things that has concerned me greatly about this debate is the fact that people are referring to sides and asking which side you are on. I am not taking sides, I do not believe that there should be sides and I find this disappointing.
This is an extremely emotive issue in our community and it is worth noting that many of the emails and letters in support of this bill dealt with discrimination and people were sure that this would end if this bill passed. I have serious doubts this would be the case. I believe that this debate has been very worthwhile in bringing this issue to the forefront of the community and people are now thinking about the issue, whether opposing or in favour, and the fact that many same-sex couples are struggling with this and do not feel valued in our society.
It also makes you realise how many same-sex families there are in our community that are bringing up children. I appreciate the difficulty in explaining to children that their parents cannot marry.
I feel with this bill that it will be just as difficult if these families move to the mainland and explain to those same children the marriage was no longer legal as they had left Tasmania. How is this equal?
The Oxford Dictionary defines marriage as the term that applies to heterosexual couples in a formal legal union. In Australia the Marriage Act 1961 provides opposite-sex couples with the mechanism to formally and legally register their union. Likewise in Tasmania the Relationships Act 2003 provides same-sex couples with the mechanism to formally and legally register their union. Neither type of relationship is discriminated against under the law. Therefore it could be said that the only way that same-sex couples and heterosexual couples are differentiated - and I stress the word 'differentiated', not 'discriminated against' - is by the term used to define each relationship.
Marriage defines the union of a man and a woman and has done for centuries whereas the terms 'civil union' or 'deed of relationship' are used to define the union of same-sex couples. Relationships between same-sex couples and relationships between heterosexual couples are uniquely different but of equal worth.
While we should be celebrating and embracing the differences and the worth, that does not mean that they necessarily need to be termed the same. I think if we are honest we will recognise that the issue we should be debating is the fact that same-sex couples do not believe the current terms of 'civil union' or 'deed of relationship' are appropriate or acceptable. Perhaps rather than look at changing the Marriage Act, we need to come up with a more appropriate and acceptable term to define same-sex unions.
Yesterday during briefings we were told that many couples feel the deed of relationship has little meaning as it can be overridden by the Marriage Act 1961. That is, if someone who has entered into a deed of relationship gets married under the Marriage Act of 1961, then the deed of relationship is no longer valid. However, we were also advised in briefings that any marriages under the proposed Tasmanian same-sex legislation would not be recognised anywhere but Tasmania and would also be overridden by the Marriage Act 1961 should a person from that union proceed to marriage under that act.
I ask again, how is that equal? It comes back to the fact that marriage is under commonwealth law and this is where any changes should and must be made. I was very disappointed recently to hear in the other place comments that those opposing this bill supported discrimination against, including the bashing of, gay men and I started wondering what I was listening to. Unfortunately I believe it is comments like these that bring violence and disunity into our community.
I thought we were dealing with love. To me all love is equal, whoever it is between and irrespective of what we call the relationship. The issue we are debating is not about homophobia and discrimination in our community; it is about whether Tasmania should go it alone with the Same-Sex Marriage Bill.
I believe part of the problem we have with regard to this issue is a lack of education and understanding of registered same-sex relationships. Perhaps, initially, we should be providing more education in our community on the rights of same-sex couples to avoid the circumstance where a partner can be prevented from attending, for example, hospital with a seriously ill partner purely because of ignorance on the part of the relevant authority. All couples, regardless of sexual orientation, have a right to be respected under the law.
I know lots of wonderful people who are in same-sex relationships and some are very dear friends. I do not differentiate between my friends whether they are same-sex or heterosexual - they are friends. I am not a religious zealot. I am not a homophobic or a bigot. My friends' sexual orientation is of no concern to me. In the weeks leading up to this debate I have been privileged to meet with a number of people both for and against.
A lovely man who came to see me recently mentioned a song by Garth Brooks called We Shall Be Free. I felt really sad that many in the gay community feel they are not free now to express themselves. The lyrics referred to were:
When we are free to love anyone we choose,
When this world's big enough for all different views,
When we all can worship from our own kind of pew,
Then we shall be free.
I believe we are already free to love anyone we choose irrespective of colour, race, religion or sexual orientation. In Australia we have freedom of speech and people are free to have different views. Finally, we all can worship from our own kind of pew. There are many different religions in Australia and as far as I am aware people can worship where they please. However, it concerns me deeply that same-sex couples and homosexuals feel they are not free to express themselves publicly. I believe this is more the issue that should be addressed.
Hopefully debates such as this will bring these matters into the open and more education about human rights will bring more acceptance and understanding, as I do not believe people choose to be gay. However, unfortunately in life we do not always have everything we want and human nature being what it is, we probably never will. I would love to be able to vote in support of this bill to make my friends happy and the many, many couples wishing to marry for whom a deed of relationship is simply not enough.
I have listened to, and also read about, many heartbreaking and distressing stories and I empathise with every one of them. I have spoken to a large number of people in same-sex relationships, including many of my friends, and I have had many sleepless nights lying awake grappling with these issues. As you can imagine there has been enormous pressure from both sides, including intense lobbying from friends, both heterosexual and same-sex. It is human nature to want to make everyone happy, however sometimes that is just not possible.
To refuse this bill is not easy. It would have been much easier in fact to say 'yes' to the bill. I have met a number of people committed to their relationships over the past few weeks and I can see the love and deep respect they have for their partners. But this is not about wishes and wants or helping your friends to get something they really want. This is about trying to do what is right for everyone, same-sex and heterosexual alike.
By now legislating for same-sex marriage, the Tasmanian Labor Party has reversed its very clear and unambiguous 2010 election policy position on marriage. It presently does not have a clear electoral mandate to do this. The Tasmanian Labor Party won government in 2010 after explicitly stating it would not change the definition of marriage. Simply put, there is no mandate for this government on this platform. I believe that Tasmania going alone on this bill will cause much more grief and upset to everyone, both same-sex and heterosexual.
It is very easy to make the case for both sides, but as has been mentioned by other members we have different legal views regarding the constitutionality of this bill and at the end of the day it is likely there will be a High Court challenge. If we should lose a High Court challenge any marriages performed may be deemed not legal and I think that would be doubly hurtful for those involved.
Interestingly, on 20 September 2011 the Australian reported:
Tasmanian Premier Lara Giddings has endorsed a parliamentary motion urging the federal government to legalise same-sex marriage, but says the state won't 'go it alone' in changing the definition of marriage.
… Ms Giddings said she would not move to legalise same-sex marriage. She said, 'The legal advice that I have says we cannot go it alone, because the Marriage Act is very much a commonwealth piece of legislation.
What we have done is go as far as we possibly can in assisting civil unions in that respect, and looking that we ensure that those relationships are given the widest possible protection.
However, following the State Labor Party Conference in August 2012 the honourable Premier said she would move to legislate marriage equality by the end of the year and that she had legal advice that Tasmania could go it alone. This begs the questions as to what has changed in 12 months in the legal advice, and why she will not release the legal advice from the Solicitor-General.
I accept the legal advice may have been from two different Solicitors-General, but the question is still raised as to why this advice is not released. I also note advice from former Chief Justice of Tasmania, William Cox, who states the bill is unconstitutional and asks us to reject this bill.
As mentioned previously, to date I have received over 2 000 emails and letters, not to mention phone calls from my electorate, and currently they appear strongly against the legislation. However, like anything, the vast majority are silent and do not pass an opinion, and may or may not be in favour. I believe the only real poll we can believe is a referendum.
This is a commonwealth constitutional issue and it is my belief that the Tasmanian Gay and Lesbian Rights Group should be lobbying the federal government to hold a referendum at the next election in 2013, which once and for all will definitely determine the will of the people and clearly show us the way forward. It would remove any doubt and everyone would have to support the umpire's decision.
At the briefing yesterday we were asked what we would want for our child if he or she were gay. Of course we would all want the best for our children, but is a second-class marriage bill, not relevant anywhere but Tasmania, and possibly not constitutionally legal, the best or equal? I do not think so. This could be described as a Clayton's bill.
I could become very emotional about this, but I do not stand here as a parent or as a mother; I stand here as an elected legislator representing the people of Tasmania. It is as a legislator and not as a mother that I have to make this decision. As is often said, hard cases do not make good laws. This is an extremely difficult decision, but I believe it needs to be the right decision at the right time for everyone - same-sex and heterosexual alike.