ednesday 26 September 2012

Hansard of the Legislative Council

SAME-SEX MARRIAGE BILL 2012 (No. 41)

(8.03pm)

Mr FINCH (Rosevears) - I, like the member for Apsley, would like to start by congratulating the member for Murchison on her speech. It was very well researched and carefully considered and it demonstrated a compassionate insight into a social dilemma that we have all become very aware of over the last couple of months and, of course, it was groundbreaking. I have been here for 10-and-a-half years and it is the first time that somebody other than a government member has taken the bill.

Madam President, there is a perception among many that the tide has turned, whether we like it or not. It has turned and is turning all around the developed world.

The President of the United States, Barack Obama, expressed his full support for gay marriage in May after saying for several years that his views were evolving. Earlier this month the Democratic Party in the United States endorsed same sex marriage in its platform and, of course, a number of states already have the law.

In the United Kingdom legislation for same sex marriage is being prepared. The Prime Minister, David Cameron, has said he supports same-sex marriage.

The New Zealand parliament has voted 80 votes to 40 in favour of the first step towards legalising gay marriage. The process typically takes several months and allows the public to have their say. There are three votes that take place in the New Zealand parliament to get to a final decision.

Ms Forrest - All their legislation goes to a committee.

Mr FINCH - Yes. The polls show that around two-thirds of New Zealanders support gay marriage. Tasmania may or may not be the first state in Australia to legislate for equality in marriage. If it is not, either South Australia, the ACT or New South Wales could be, and the sky will not fall in. It will not fall in because legalising same-sex marriage will not affect most of us at all. Relationships, and state-sanctioned confirmation of them, between men and women will continue as usual. If this bill is passed in Tasmania all that will happen is that people of the same sex will have state backing for their marriage vows. Is this important? Not to me, and not to most Tasmanians. But it is important for a small number of Tasmanians in same-sex relationships who feel they want society's blessing for their relationship. They say that they want the same recognition as any man or any woman.

There has been a lot of debate about whether this bill is constitutional. We have seen contrary, and rather confusing, opinions but I appreciated the advice we were given in a briefing today by the professor of constitutional law, George Williams. The conclusion was that there are good arguments on all sides but only seven judges can give us that answer. We would be guessing at this stage. We have heard that South Australia is considering similar legislation. New South Wales is going through a very thorough consultative process and there are moves in the ACT. Tasmanian legislation is the template for the development of legislation in those states.

No doubt they, too, will be looking at the constitutional issue and no doubt they are going to hear conflicting opinions. But to reject this bill on constitutional grounds would be a cop-out.

There are conflicting legal opinions, but the only opinion that counts is that of the High Court. If the High Court must rule on this, so be it. That is one of the main reasons why we have a High Court.

Ms Forrest - That is how it is supposed to work.

Mr FINCH- Yes. This has been the most polarising community debate since I was elected to this House two terms ago. Like all such polarisations you have the extremes on either side of the argument - as we have seen, they lobby intensively and are unlikely to change their views whatever they hear. But in the middle you have the majority and I believe that somebody has done a straw poll and distributed a letter, which I did not get, and the straw poll showed 80 per cent might be the figure in the middle.

They are people who either do not care much about the issue, or are not prepared to take sides, even if the swirl of information and opinion tries to convince them to do so. We in this House have all heard at length from both sides of the argument. We have all lost count of the thousands of emails. It has been, and continues to be, a very stimulating debate - calls are still coming in, as I speak now. This is the sort of debate our community should have about legislation they feel strongly about. It is healthy to have such community discussion - so often I have been at this lectern criticising the government because we have not had time to allow the community to debate issues. Particularly with the sex industry legislation, and the relationships bill, the government says, 'no, we have had consultation'. I say, 'yes, but the community has not been involved in the debate'. I believe the community will not be able to point the finger at the government and say, 'We have not had sufficient time to debate this issue'.

We have seen all types of emails. Some, on either side, have been repetitive, based on the common format but some have been heartfelt, individual and very touching. I responded to all of those from my constituents and some of the thousands of others because I have been grateful to receive the views from all sections of our community in the process of making up my own mind about the issue. Some emails have even resulted in continuing exchanges and I value those particularly, especially when they represent a conversation with my constituents.

However, I think we have all received some objectionable material, showing the nasty side of the opposing argument. The material in which this document came in was anonymous, it was cowardly and certainly does not help the cause of those opposing same sex marriage. I think it was distributed to all of us in a plain wrapper. I know the member for Windermere had a copy because I managed to retrieve his envelope before it was shredded, to see if I could find out who had sent it.

Ms Forrest - There was no indication at all.

Mr Dean - Is that where the envelope got to?

Mr FINCH - It was of no use to you because it had no name and no contact in respect of that information.

Ms Forrest - Very inflammatory, derogatory -

Madam PRESIDENT - Order.

Mr FINCH - I discarded it, in my own mind, quite quickly because we did not really want that element in the debate.

I mentioned polarisation, the two opposing views, the mass in the middle. I do not hold strong views either way on the issue of same sex marriage. I suppose you could put me with the mass in the middle. I am neither emotionally nor spiritually connected to this bill.

However, like my colleagues, I have to do the best I can in the interests of my electorate and all Tasmanians on this issue. I therefore took great interest in the debate and I will be listening to my colleagues and what they witnessed as their discussions unfold. But I see my role as reflecting the views of my constituents and the wider Tasmanian community, tempered with my own values and a sense of what is right, which has to have some play on why I have been elected in the first place and re elected six years later.

As far as the broader principle is concerned, we are looking at legislation to allow people of the same sex to establish an officially sanctioned marriage relationship. It is as simple as that. The long running and sometimes nasty argument about homosexuality does not come into it, as far as I am concerned. Many of those opposed to same sex marriage, however, believe it does. Some speak of HIV and lifespan issues and so on. Often forgotten is the fact that sometimes two women are in a lesbian relationship.

But the idea of people of the same sex going through a marriage ceremony seems to have confused some Christians, especially that section of the Anglican Church who want to stay with the seventeenth century vow to 'honour and obey'. Who is going to obey whom?

Ms Forrest - I didn't say that.

Mr FINCH - No, I just said that. The Anglican Archbishop of Sydney, Peter Jensen, who argues that brides must submit to their husbands, may have to sort that out. Archbishop Peter Jensen, along with the managing director of the Australian Christian Lobby, Mr Jim Wallace, as we know, have suggested that homosexual men have a shorter lifespan than heterosexual men. I fail to see what that has to do with same sex marriage, but it is worth looking at this issue.

A Queensland psychologist, Paul Martin, principal psychologist for the Centre for Human Potential in Brisbane says:

Evidence strongly suggests that the inability to marry has a direct connection with psychological harm through confirmation of underlying negative beliefs, … adding another layer of challenge for those in long term committed relationships through a lack of validation.

Most people are not aware of the causes and existence of the significant mental/physical health problems of those who are same sex attracted.

These problems are strongly linked to issues including:

· Deeply held beliefs about same sex relationships not being valid

· Being excluded from social institutions which normalize same sex relationships such as marriage

· 'Internalised Homophobia' - negative beliefs including GLBTI are disordered, sick, evil etc.

Mr Martin says he has 'treated many people whose self esteem and mental health issues would have been significantly improved if they had access to the ability to marry their partner'. He says not being able to marry has for many of his clients increased their 'sense of defectiveness' and 'hopelessness from a sense that our society doesn't recognize the most important part of their lives'.

We had a briefing from Darren Carr from the Mental Health Council in our offices in Launceston. Some of the things that stood out for me when he talked about 'minority stress' was that these lead to the worst mental outcomes. He talked about stigmatisation and difference from others. He also talked, which I thought was compelling, about good research on capacity to be parents and that research showed that there was no difference. It may be simplistic but imagine if laws discriminated against people with red hair, for instance, including forbidding them to marry. Wouldn't their self esteem suffer? I think so.

I spoke earlier of the vast number of emails we have received that have clogged our offices and office systems for so long now. I would like to quote from some of them. I am not sure of the balance of numbers for and against but when I met with Dr Andrew Corbett he asked me about the numbers I had. He was quite shocked when I said, 'I think it is 50:50 in respect of the representations I've had'. I do not know how other members have felt but that is not the issue I want to talk about. I prefer to group the arguments on their merits rather than numbers. My process was that I would read every email. Anything that resonated that was a new argument or a compelling case I put to one side and then reflected on those when I put this speech together. There is of course a strong Christian element opposing same sex marriage but I feel that the Christian view is only one of those in opposition. In selecting some quotes from both sides of the argument I have tried to show the personal arguments of individuals. I think you could sum up the mainstream Christian argument with what the Anglican Diocese of Tasmania has to say:

As you will be aware the Anglican Diocese of Tasmania has given strong support to the elimination of discrimination against gay and lesbian citizens of this state. We are however concerned about the legislation which effectively changes the definition of marriage in Tasmania. We are strongly committed to the current definition which limits marriage to a union between a man and a woman. The new legislation, in our opinion, legislates against the true meaning of marriage and opens opportunity for any definition to fit. It effectively begins the process of deconstructing the social fabric of the state.

Most of those against same-sex marriage dismiss the other side's notions of equality and antidiscrimination. Many who have expressed a view speak of marriage between a man and a woman as the best way to raise children. I mentioned my constituent Pastor Andrew Corbett of the Legana Christian Church. He puts it this way in a special letter - I am not sure if he distributed it to other members but it certainly came to me.

Marriage is a privilege not a right. It is a privilege because it is the best way to raise our most precious members of our society: children. Every comparative study between the various household models for raising children has shown that children raised in a low-conflict, loving, married parent home always fare best in every criteria (emotionally, psychologically, academically, socially, physically). Because Marriage is a privilege it is not owed to anyone - as all universal rights are. This was recently acknowledged by the European Commission of Human Rights.

Because a married mum and dad is the best basis for raising children, it deserves legislative promotion rather than mere legislative permission (which is what Same-Sex Marriage advocates are demanding.

It's worth noting that the Marriage Act does not regulate couples it provides the criteria for individuals entering into marriage. As such, the entire premise for Same-Sex Marriage is without foundation because it claims that the Marriage Act unfairly discriminates against their type of coupling.

The theme of marriage between a man and a woman was very strong in most of those opposing the bill. For example, this email:

I am writing to express my concern on this same-sex marriage bill. I am one who values family and marriage as a union of a man and a woman and wish to express my opinion to all Tasmanian upper House members. Virtually every human culture has defined marriage as a union between a man and a woman and this has stood the test of thousands of years as the only union that ensures the continuity of our species and the health and happiness of our children.

Another theme was that a same-sex union cannot produce a child naturally, although many would argue that is not necessarily the main aim of marriage.

Both the hetrosexual and the homosexual couple enact out a choice. Only the hetrosexual union naturally results in the birth of a child. The child is alive as a product of a remarkable natural union between their now father and mother. There can be no argument that this is in fact the origin of the child. The child has a unique connection with these biological parents which provides a distinct advantage to them as carers for the child during infancy, childhood and beyond. The tradition which gives special recognition of blessing to the form of union called marriage makes sense. We should continue to legally protect this unique institution in whatever way we are able as it performs a role of immense value.

Many opinions against recognition of same-sex marriage see it as the thin end of some horrific wedge. Here is another quote:

If the Marriage Act is changed to accommodate this minority group it will open a can of worms. What is going to stop a man from wanting to marry his sister or mother even?

I do not see the legislation in that way coming before this House in my lifetime or perhaps in any other lifetime. Is the sender suggesting that a gay man would want to marry his sister? Probably not. I get the sense of that. In every society there is a trend to preserve the status quo.

I think things are working well as they are. Gay and lesbian people have the same rights to everything that married people have and I think that is at it should be. By that I mean we humanise people when we do not discriminate. Perhaps you may suspect that I therefore think this last little thing, marriage, should be expanded to include this minority group. Not so and here are my arguments.

I think we should differentiate between how we deal with an individual and how we set public policy. Public policy needs to be very future focused. How will things look 10 years from changing the Marriage Act?

I could go on about those examples but I would like to turn to this quote, from Michael and Jenny Harvey:

Life is pretty simple - as the Bible outlines for the first man and woman: Genesis 2 'It is not good for the man to be alone. I will make a helper suitable for him.' Marriage is introduced by God very early in the garden of Eden and is clearly a union between a man and a woman. The Bible continues with the following where the man says of this woman: 'This is now bone of my bones, flesh of my flesh; she shall be called "woman" for she was taken out of man. For this reason a man will leave his father and mother and be united to his wife and they will both become one flesh.'

Therefore, for this reason above, we know that marriage is set aside for that sacred union between a male and a female.

Like other members of the House I have been lobbied extensively in person and attended many public events. Last week I attended a meeting at the Free Reform Church at Legana in my electorate. They thought they might get 12 - change that to perhaps 40 - we ended up with 80 people there. I was treated with warmth and sensitivity. There was a wide ranging and enlightening discussion. That meeting demonstrates to me that our community has moved on from confrontation and antagonistic argument. Whatever the outcome of this issue at this stage, our community is going to be richer for having this debate. That is how I feel.

From that meeting I received this email from Andrew Hidding:

Apart from the spiritual and emotional arguments that weigh heavily on all sides, there are in my view a few important facts to consider:

1. the original aim of the federal Marriage Act was to give legitimacy to children. For that reason marriages between some people were not allowed. The closeness of family relationship is one very important factor in that regard. A marriage between persons of the same sex would really be a contradictio in terminis.

2. the benefits which same sex couples miss out on are all available to them under other legislation.

3. the outcome of the vote in our federal parliament does overwhelmingly show that there is no great majority of Australians who favour change of the Act.

I would also like to quote from somebody I respect very much in my community who is the principal of the Launceston Christian School at Riverside and I had a meeting with Erik Hofsink and Rolph Vos, who is the chairman of the board, over a long period of time. Erik wrote to me, though it was countersigned by Rolph as well, confirming what we discussed and this was the conclusion in the letter:

The Christian school community believes that marriage is founded on the wonderful fact of sexual difference and its potential for new life. We further believe that children are best nurtured by a mother and father. The current sentiment that same sex couples can care for a family well - just as well as a heterosexual couple - has not for once considered the consequences for adopted children of the same sex couples and their basic human right to having a mother and a father. This will bring endless difficulties for all children around education in this context.

Finally, but most important to us, laws for same sex marriage are not based on biblical justification. For the millions of Australians who accept the authority of the Bible as the truth about the origin, existence and destination of this world/mankind, accepting this legislation in Tasmania will mark the beginning of the end to religious freedom.

I will turn now to the other side of the debate - those supporting this bill - and they have a range of arguments, some relating to eliminating discrimination and promoting fairness. Many gave us their personal stories - their stories about family members unable to marry those they loved and who wanted to enter into long-term relationships.

I will try to keep it brief. I had one response from a Launceston marriage celebrant, Barb Youd.

Marriage gives social recognition of long term dedicated relationships which in turn creates a stable community.

Barb also quotes her son who summarises one of the issues about same sex marriage. It is put simply but well.

Heterosexuals are the ones stuffing up marriage. The Gays that are Gay for sex are not the ones wanting to get married. It is the Gays that are in a loving, committed relationship who want to be able to get married.

Some of those who support the bill have one or more gay children and want them to be able to marry like their heterosexual children.

My husband and I have been married for over 38 years and have raised two daughters, one an accountant and the other a human rights lawyer. When they were children we often talked with them about their futures, what careers they aspired to and the possibility of them falling in love and getting married. Subsequently both daughters did fall in love but only one has been able to marry her partner. Our straight daughter married her husband three years ago in a civil ceremony conducted by a civil marriage celebrant. Our gay daughter dearly wishes to marry the love of her life but cannot marry in Australia because of the inequality enshrined in the Marriage Act.

A number of opinions rejected one of the main arguments of those who opposed the bill - that children are always better off in a conventional marriage. This quote is from Colin Berry:

My wife and I believe that this is a simple matter of fairness and human rights. We see people who marry and choose not to have children (and for that matter, people in excellent unmarried relationships who do have children). There is no logical connection between marriage and the protection of children. In fact I know children who would be better off far away from their married parents.

As non-religious people, our marriage has nothing to do with religious beliefs. Rather, it is a commitment made before our families and community. How dare we deny others the same right?

Some speak in very heartfelt terms of their wish to marry. This is from Dr Lynch:

Making marriage for same sex couples legal in Tasmania would make a huge difference in my life. To be able to marry the woman I love, who shares my life, helps care for my children and who is in every way my partner in life would bring me so much joy. To share that with our family and friends who accept us as the people we are would be beautiful and right.

Another view:

It is the parents' relationship that counts, not their sexuality. The sky has not fallen in because they have children. The children are just as beautiful as the children from heterosexual relationships. Not allowing same-sex marriage is not going to prevent these relationships from happening so why not legislate for a civil marriage ceremony for those who want this final blessing. It will not prevent heterosexual couples from being married in church or in civil ceremonies.

Some people are worried about the future of the gay people. This from Eamon Gilligan of Howrah:

It is extremely important that we ensure future generations of same-sex attracted young people are not encumbered with the psychological issues, low self worth and high suicide rates that have plagued previous generations. I want to point out that while rejecting this Bill will sadly continue to cause great distress to members of the Tasmanian community, no one who is against the Same-Sex Marriage Bill will actually be negatively affected by its passing. Instead, Tasmania will be making another step towards becoming a truly inclusive society, incorporating the ideal of a 'fair go'.

There has been a lot of discussion about this bill within families. I am sure that members would have received the message from Noel Frankham of Dulcot:

I write as a seventh generation member of a large extended rural Tasmanian family. Our family and close friends reflect normal contemporary Australian social and cultural profiles including gay and lesbian people, some of whom have children.

Most of us admit to being somewhat ambivalent when Premier Giddings and Minister McKim proposed the same sex marriage bill. However the paucity of opponent argument has become a topic of family discussions and encouraged our support for the bill.

...

If one accepts the line of argument advanced by some opponents of marriage equality, homosexuality affects reproductive organs that gay and lesbian people cannot and do not have children.

Promulgating such nonsense, celebrates ignorance, promotes bigotry and prejudice. Consequently I am moved to write to you seeking assurance that your decision making is based on facts and fairness - that it adheres to the long held values of equity that underpin Australia's extraordinary success as a rich and civil society.

There is one also from a young woman doctor:

I am writing to express my support for marriage equality. I am a young doctor, working for DHHS and a straight female. I believe that marriage equality shouldn't even be an issue. It should have been allowed years ago. People should be allowed to formalise their commitment to each other if they wish. Getting married does not affect anyone, other than the people getting married. So I believe no one outside of those two people should get a say in the marriage.

I find the arguments against marriage equality ignorant and lacking any valid facts to back them up. Logically, it is not going to decrease the population, as those who will get married, once equality is available, would not have reproduced, with or with the ability to get married.

It won't make people who may have been straight, gay. Being gay is not a choice - it is genetic.

I will sum up those people who have sent material for the case. This came from Miss Alison French from Trevallyn in my electorate:

Please do not let another child grow up thinking or grow up to think there is something wrong with them just because of their sexuality. Sexuality is not a mere choice and it is not something that can be turned off or ignored. Not allowing a loving couple to marry is a massive breach of morality and in turn sends a very devastating message to our young people. Every child deserves to feel safe, accepted for who they are, and secure in their identity. Sending the right message to children is important for their development and allowing marriage equality is one right message we can send.

This has been a very stimulating and worthwhile community debate. A debate that I have been proud to be part of, and gratified to listen to as well. A debate that I could not have properly participated in if I had been spiritually or emotionally connected to the bill, or if I declared a set views when it began, because I wanted to hear what people had to say.

Concurrent with our debate on this issue, we have had two failed attempts to pass federal legislation. They were defeated partly because the Coalition stated a firm view and did not allow a conscience vote. However, I believe that both bills would have been lost in any case. But it is worth a brief look at the debate in the Senate. Senator Doug Cameron said:

Arguments about children being disadvantaged by being brought up by same sex couples, denies the reality of some children facing terrible lives with heterosexual couples.

Labor Senator John Faulkner said the debate was not really about the value of marriage, or its role in society. 'It is a debate on the simple question of whether it is right for a government to deny some of its citizens access to a secular, government-recognised status on the basis of the gender of the person they choose to share their life with'.

I will not go into the comments by Senator Cory Bernardi on multiple relationships and bestiality because I think they were worse than offensive and threatened the logic and good manners of most opposing this bill.

We also had the move in New South Wales that I want to comment on. There was a news story last week that talked about a cross-party group of New South Wales MPs formed to produce a bill on same sex marriage that will be put to a conscience vote in the state parliament. The bill to allow gay and lesbian couples to marry in New South Wales will be drawn up by a working party of Liberal, National, Labor and Greens MPs. New South Wales will follow the lead of states such as Tasmania and South Australia, in introducing state-based laws.

Marriage equality campaigner, Alex Greenwich - we thank him for his presentation at our briefings today says -

The formation of the New South Wales working party is a strong step forward. This is the first time we have seen such strong, political cooperation. So that will only help the reform get through parliament and New South Wales is a state with more same sex couples than any other.

New South Wales Premier, Barry O'Farrell, has already said that he will allow a conscience vote on the issue.

The only Liberal member in the group, Bruce Notley-Smith, says that the new committee will allow for an unpoliticised discussion of same-sex marriage. He says:

One of the reasons why we have set up this group is so we can all sit down and concentrate and not bicker across party lines and work cooperatively to get some sort of result.

Others include the Nationals' Trevor Kahn, the Greens' Cate Faehrmann, Labor's Penny Sharpe and Sydney Independent, Clover Moore. That could well be a sensible way of going about this issue. It is an issue which needs to be out in the public, whatever the outcome. I think the public debate on this Tasmanian bill has been both healthy and enlightening.

After reading many thousands of words of argument, after having been lobbied personally over many weeks, I am inclined to support this bill because it reduces discrimination, shows tolerance and allows a substantial proportion of the community to enter into the recognised long-term relationships they want. I support the bill