RELATIONSHIPS REGISTER BILL 2010
Agreement in Principle
Debate resumed from 23 April 2010.
Mr GERARD MARTIN
(Bathurst) [9.21 p.m.]: I speak in support of the Relationships Register Bill 2010. As the Parliamentary Secretary and member for Miranda, who is at the table, said in the agreement in principle speech, this Labor Government has a proud record of ensuring that couples who are in serious and committed relationships are afforded the respect and acceptance they deserve under the laws of this State. The New South Wales Labor Government has been one of the most forward-thinking governments in recognising the broad range of intimate relationships that the citizens of this State are choosing to enter into and the desirability of ensuring those relationships are formally recognised. This could be controversial, particularly in church organisations, but it is overwhelmingly a fact of life in today's society.
Ms Clover Moore: Actually also very Christian.
Mr GERARD MARTIN: Indeed. This is particularly so when these relationships involve children and significant shared financial assets. It is not good enough to simply let these families fall through the cracks. In 1984 the New South Wales Labor Government introduced the De Facto Relationships Act, the first legislation in Australia to give clear statutory rights to people living in de facto relationships to seek court orders for an adjustment of property interests when their relationships broke down, which happens from time to time. In 1999 the Government enacted the groundbreaking Property (Relationships) Legislation Amendment Act 1999, which, for the first time, incorporated same-sex couples into the definition of "de facto relationship", giving them the same rights and protections in relation to their property as heterosexual de facto couples and extending this new definition to a range of other legislation to achieve equality for people in same-sex relationships.
These were important reforms for same-sex couples faced with life and death situations such as making decisions about their partners when they were in hospital or accessing rights following the death or permanent disability of their partner—truly very stressful times. In 2002 the Government introduced the Miscellaneous Acts Amendment (Relationships) Act 2002 which gave same-sex spouses employment benefits and entitlements that had been previously denied them, and conferred on them benefits, rights, powers and protections or other legal consequences arising out of a person's relationship as a spouse.
In 2008 the Government introduced legislation providing for a consistent definition of "de facto partner", including same-sex partners, across all New South Wales laws. With the Relationships Register Bill 2010 being debated in the House today, the Keneally Government has again demonstrated Labor's commitment to removing discrimination against unmarried people in heterosexual and same-sex relationships and their extended families. The Relationships Register proposed in the bill will make it easier for unmarried couples who are in de facto or committed relationships to prove their relationship for the purpose of accessing government services, entitlements, and records. And that is as it should be.
Under current laws it can be very difficult for couples who are in de facto or committed relationships to prove their relationships for the purpose of accessing New South Wales and Federal Government services, entitlements or records. The register will rectify that by allowing couples to provide one certificate as conclusive proof of their relationship. That is a very important provision because the last thing someone wants at a hospital, when worried about a loved one, is to have to convince someone of the quality of their relationship. It will also ease the administrative burden and cut red tape for the government agencies involved. Registration will assist those in New South Wales to gain access to benefits under Commonwealth law in social security, veterans affairs, workers compensation, educational assistance, superannuation, and other human services where evidence of a relationship may be required. Registration will offer practical benefits to all couples who register their relationship as well as provide a simple and dignified means of formally recognising a couple's relationship. The Coalition, in its wisdom, has decided to agree to its members having a conscience vote on this bill.
Mr Greg Smith:
Something the Labor Party would not do.
Mr GERARD MARTIN:
The bill shows that the Opposition is perhaps not as accommodating as we are on this side of the House in recognising and supporting sensible and straightforward policy initiatives that offer practical benefits to the people of New South Wales. I would like to think that the Opposition would stand united behind this bill. Instead, it will leave it to a conscience vote. It is probably pointless denying that prejudices are involved in legislation such as this. I have been involved in much legislation in this House that have involved conscience votes. I am on the record as a conservative Christian. In this case, I take an open, humanitarian and compassionate view.
Mr Greg Smith:
Why don't you respect people's views?
Mr GERARD MARTIN:
The member for Epping is interjecting. In a Coalition government he would be the man responsible for a just and fair legal system in the State. He has made it abundantly clear that he does not believe that strong, committed, loving relationships between people of the same sex are as valuable and important as those between people of the opposite sex. During debate on the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008 the member for Epping said:
I do not wish to offend anybody.
That sounds like Gordon Moyes. He continued:
As I say, I have gay and lesbian friends, but I believe the majority of the community, like me, objects to putting gay and lesbian couples on the same level as married or de facto heterosexual couples.
And that is exactly what those opposite are about.
Mr Brad Hazzard:
Point of order: Obviously this is a delicate and difficult issue for members, and members on this side of the House have indicated that they will take a conscience vote. The member for Bathurst has reduced this debate to an attack on a member, when he knows very well that that can be done only by way of substantive motion—particularly when the member has not yet spoken. I ask that the member for Bathurst be directed to the substance of the bill and not to behave in a reprehensible and child-like fashion. Let us stick to the debate at a mature level.
ACTING-SPEAKER (Mr Thomas George):
Order! I uphold the point of order. The member for Bathurst will return to the leave of the bill. He will not attack another member except by way of substantive motion. The member for Epping has not yet spoken in the debate.
Mr GERARD MARTIN:
To the point of order: I am quoting what the member said in the House on this very subject.
Mr Greg Smith:
But not on this bill.
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Bathurst is quoting the words of the member for Epping in relation to another bill.
Mr GERARD MARTIN:
It is to do with the same subject. Okay, that just goes to show how thin-skinned they are.
Mr Andrew Stoner:
It is not part of this debate. Pull your head in.
Mr GERARD MARTIN:
And, of course, we have Dopey who has finally come down into the House.
ACTING-SPEAKER (Mr Thomas George):
Order! I call the member for Bathurst to order.
Mr Brad Hazzard:
Point of order: Mr Acting-Speaker—
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Bathurst will come to order. This debate is of a sensitive nature. The member for Bathurst will direct his comments through the Chair. He will refer to members by their correct titles.
Mr GERARD MARTIN:
The member for Oxley.
Mr Brad Hazzard:
Point of order: It is in the interests of members on both sides of the House that this debate be carried on in a mature and sensible way. I ask the member to respect that, and to apologise to the Leader of The Nationals and to all members for the way this debate has commenced. Just apologise and withdraw the comments.
Mr GERARD MARTIN:
I have already done that. You are about five minutes too late. How long can a point of order go on?
ACTING-SPEAKER (Mr Thomas George):
Mr Brad Hazzard: I am asking you to withdraw the comment and apologise.
Order! The member for Wakehurst will resume his seat. The member for Bathurst says he has withdrawn the comment, but I did not hear him do that.
Mr GERARD MARTIN:
I will do it again. I referred to the Leader of the Nationals, who is late.
ACTING-SPEAKER (Mr Thomas George):
Order! The member for Bathurst will return to the leave of the bill.
ACTING-SPEAKER (Mr Thomas George):
Mr GERARD MARTIN: I make the point that I have come into this Chamber with carefully crafted ideas about this bill and I have put them to the House. The interjections of the member for Epping have got the debate off track.
Order! The member for Bathurst has been reading notes.
Mr GERARD MARTIN:
Mr GERARD MARTIN: Copious notes. Is there something wrong with that?
ACTING-SPEAKER (Mr Thomas George): No, but the comments came out of the notes of the member for Bathurst.
Mr GERARD MARTIN: They are copious notes.
ACTING-SPEAKER (Mr Thomas George): I do not think the copious notes of the member for Bathurst refer to the interjections.
To continue, the member for Epping said:
I do not wish to offend anybody. As I say, I have gay and lesbian friends, but I believe the majority of the community, like me, objects to putting gay and lesbian couples on the same level as married or de facto heterosexual couples.
That is on the parliamentary record. Given those comments, I wonder how the member's gay and lesbian friends feel about his statement that their relationships are not on the same level as those of de facto heterosexual couples. Following the Attorney General's announcement that this Government would establish a relationship register the Government received a number of messages of support from same-sex and heterosexual couples right across the board. One message spoke of the writer's hope that the register would be implemented in time for him and his same-sex de facto partner of 34 years to register their relationship. Sadly, as the writer's partner has cancer and dementia he feared that it might be too late for them. However, the writer said that he would still be satisfied when younger people were able to avail themselves of the opportunity that he and his partner may not have had. These men have given their compassion, commitment and love to each other over three decades and I struggle to understand how any member of this House cannot accept that such a relationship is equal to a relationship between heterosexual couples.
However, as much as Opposition members would like it to be, this bill is not about sexuality; it is about providing a simple way that couples can demonstrate their relationships without the need for intrusive investigation and bureaucratic substantiation of their relationship status. It is all about allowing formal recognition of loving relationships between unmarried couples and reflecting the serious commitment of those couples who choose to use this register. I strongly commend the bill to the House.
Mr BARRY O'FARRELL
(Ku-ring-gai—Leader of the Opposition) [9.32 p.m.]: The former member for Bathurst, Mick Clough, would be turning in his grave for two reasons. First, Mick Clough never once used a note to speak in this Chamber. The member for Bathurst now reads every word he says. Secondly, the former member for Bathurst, Mick Clough, would never have behaved in the disgraceful way that the present member for Bathurst did. Mick Clough understood the value and importance of conscience votes. The Liberal Party is exercising a conscience vote on this issue because we believe it is a strength that allows individual members of Parliament to determine their positions according to their own beliefs and the beliefs of the community they represent. The fact that there will be members of the Liberal Party voting on different sides reflects the reality found in communities across the length and breadth of this State on this issue and on a range of issues that might arise over the course of a parliamentary term.
Nothing in this legislation creates new families or new relationships. It recognises the relationships that already exist across the suburbs and communities we represent and it recognises them to allow them to access their rights and entitlements in dealing with governments and other service providers. It also brings New South Wales into line with a number of other States and will operate under a national Commonwealth framework. A registered relationship under this legislation is not a civil union, nor is a registered relationship a marriage. The Commonwealth Parliament, not State parliaments or Territory assemblies, has constitutional power and responsibility for the Marriage Act. I am voting the way I am on this legislation because I believe in the classical liberal view on the role of government, which is best expressed by John Stuart Mill in his essay On Liberty
, in which he said:
The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.
This measure is neither predicated on the basis of doing harm to any individual nor based on some coercion. Rather, it provides for individuals to exercise free will in deciding whether to register their relationship and it seeks to offer various protections already provided for under the law to those in registered relationships. At the risk of providing more fodder for those opposite to use in a childish manner during question time, I have to say that in addressing the argument about this legislation I am reminded of comments made by a former Premier of this State, Nick Greiner, in Opposition, when he sought to address arguments about certain legislation undermining common morality and causing threats to the social cohesiveness and stability of our community. He said it was fundamental for a liberal that what was required to hold society together was not some common morality enforced by the State but the mutual toleration of different moralities. That is the bottom line, he said—mutual toleration. We do not all have to agree to a common morality. It is not even necessary that we do not discriminate against one another. The condition necessary for the smooth operation of a liberal democratic society is toleration. For those reasons I support this legislation.
Ms CARMEL TEBBUTT
(Marrickville—Deputy Premier, and Minister for Health) [9.36 p.m.]: I support the Relationships Register Bill 2010. I have received representations from many constituents in my electorate of Marrickville in support of the bill. It is an important stepping stone towards equality. The bill will ensure that de facto couples, heterosexual or same-sex, can have their relationships officially recognised, registered and placed on a clear legal footing. The bill promotes a fairer and more inclusive society. It allows couples who are in genuine relationships but who are not married to do two things: first, to have New South Wales place a stamp of recognition on their relationships, which will be symbolically important to many couples; and, secondly, to rely on registration in a practical sense to access entitlements and important services.
Most members of this House would know people who might benefit from the bill. This includes de facto heterosexual couples who have been together for years but who have never chosen to get married, same-sex couples to whom marriage is not available, the children of such couples because the benefits that parents experience from easier access to their entitlements will flow through to children, couples who are in a genuine relationship but who perhaps do not live together due to their employment circumstances, family obligations or as a matter of personal choice, as well as couples who have separate finances who might have trouble establishing this factor as part of the alternative and still current test for establishing de facto status.
I do not think anyone would argue that any of these circumstances precludes the existence of a genuine, committed and loving relationship. The bill is based on a clear-eyed recognition of our society as it really is. It creates a mechanism to recognise existing de facto and committed relationships and helps to remove some of the barriers these couples may face in accessing the services and benefits to which they are entitled. Registered couples will be able to access their entitlements under State and Commonwealth law by providing one certificate as conclusive proof that they are in a committed relationship instead of having repeatedly to prove their relationship status.
Some key benefits and rights under New South Wales legislation that persons in registered relationships will be able to access more easily include: persons in a registered relationship may be entitled to payments under the Workers Compensation Act 1987 if they are dependent on their partner and their partner is injured in the course of his or her employment and is totally incapacitated for work. It is likely to be easier for partners in registered relationships to establish their right to give consent to medical treatment under section 33A of the Guardianship Act 1987. After a legal guardian, a person's spouse, including a partner in a registered relationship, is next in the hierarchy of persons responsible for another person.
Under section 26 of the Crimes (Sentencing Procedures) Act 1999, a de facto partner in a registered relationship will be treated as a member of the primary victim's immediate family who may be able to make a victim's impact statement when a court is sentencing an offender. Persons in a registered relationship will be entitled to inspect their partner's will and will be able to apply for a family provision order in respect of the estate of their partner if their partner dies, but only if they were living together at the time of the death.
In addition, service providers in situations that are not necessarily governed by legislation may choose to accept registration of a relationship as proof of the legitimacy of that relationship. That may be the case, for example, with schools, banks and other financial institutions. By recognising de facto relationships in this manner, whether those relationships are heterosexual or same-sex relationships, the bill accords respect to the members of our community who make these choices and builds on social cohesion. I support this bill, which should be welcomed by many members of our community. I recognise that many members in same-sex relationships will recognise and welcome the bill, which I commend to the House.
Mr ANDREW STONER
(Oxley—Leader of The Nationals) [9.40 p.m.]: I contribute to debate on the Relationships Register Bill 2010 and note that, ostensibly, the bill will create a relationships register to make it easier for committed couples to access legal entitlements and prove that they are in committed or de facto relationships. Herein the definition of "committed relationship" is a key issue and one that is germane to this whole debate. The Liberal-Nationals Coalition is determined to have a conscience vote on this issue. I will certainly vote according to my conscience. My conscience is determined around the issue of what is, or what is not, a committed relationship.
I understand that the relationships register will make it possible for couples who do not want to marry, or who are unable to marry, to obtain a formal recognition of their relationship and "commitment" to one another. This proposed legislation expands the current definition of "de facto relationship" to include "registered relationships". It also enables couples on the register to provide one certificate of conclusive proof of their relationship. It is my belief that these provisions represent a significant erosion of the concept and institution of marriage in our society. Under this legislation there will be no ceremonial aspect to the registration of a relationship. The legislation does not provide for civil unions as such, and it will not extend beyond registered relationships. For example, there is nothing to suggest that it will provide for the adoption of known children by same-sex couples, which is somewhat of a relief.
Registration on the register can be terminated if the relationship dissolves. Herein lies part of the issue for me and my conscience—that is, it is all too easy simply to register a relationship and then to terminate the relationship on that register if there is any sort of issue. It is all too easy and there is a lack of commitment in this process—a commitment that I believe is extremely important to our society. I believe that the foundation of a healthy society is family. Over thousands of years of civilisation the basis of family is the concept and institution of marriage between a man and a woman. What is marriage? Marriage involves a vow taken before God and man that there is a lasting commitment between partners for life. Without any doubt the best environment for children is one in which, first, there is stability; and, secondly, there is a mother and father—that is, role models of both genders.
I will not go into detail, but plenty of studies are available to confirm that that is indeed the case. When there is a married mother and father and stability in that relationship, children generally prosper and develop under such an environment. No doubt I will be accused by some of discrimination in following my conscience on this issue. However, what is at stake in this institution is an expectation and standard that are important for the health of our society and our children. The institution of marriage is something that has underpinned civilised society for thousands of years. I say to de facto couples who want to express some form of lasting relationship: What better way is there to do so than marriage? Let us make a firm commitment before family, God and society that we are committed to a lifelong relationship.
I say to same-sex couples who cannot naturally have children that legal rights are available and afforded to them under existing legislation. I refer to some of the comments that have been made by spiritual organisations and, in particular, to an article in the Catholic Weekly
dated 9 May 2010, which supports what I am saying. It is important for us to listen to the churches, which have been around for a long time and which are part and parcel of our civilised society. Churches have contributed a lot to stability in society for at least the past 2,000 years. The article in the Catholic Weekly
, which is entitled "Govt bill will 'further undermine marriage'", states:
The move by the State Government in seeking to create a Relationships Register is "extremely disappointing" and will further undermine marriage, says Chris Meney, director of the Life, Marriage and Family Centre for the Sydney archdiocese.
The article goes on to state:
Such legislation reflects a poor understanding of why a marriage is vital for the flourishing of any society ...
We know that marriage promotes increasing levels of wellbeing for couples and for their children.
I digress for a moment to recall another study. Men who are married live longer and are healthier. We ought to do all we can to support and protect this institution. The article continues:
Growing up outside an intact marriage increases the likelihood that children will themselves divorce or become unwed parents. Rather than blurring the distinction between marriage and other forms of relationships we should look at things like a tax break for married couples, to incentivise marriage.
Given the studies showing that children from married intact families do better we should be doing all we can to support and encourage marriage.
Mr Meney said there appears to be a "deliberate reluctance" by some of our senior parliamentary representatives to incorporate provisions for "caring" relationships as recommended by the NSW Law Reform Commission, and as reflected in legislation in Tasmania and Victoria.
This would seem to suggest that this Bill is not really about enabling persons who have shared mutual interests to have their relationships acknowledged ... There appears to be a much more deliberate focus on striving to provide more momentum for the progression of a "same sex" marriage agenda."
An organisation known as Family Voice Australia, which supports the contentions of Chris Meney from the Life, Marriage and Family Centre for the Sydney Catholic archdiocese, states:
Until now marriage—the union of one man and one woman to the exclusion of all others, voluntarily entered into for life—has been the only couple relationship that could be registered under New South Wales law. The reason for this unique treatment of marriage is that:
only marriage provides the best environment for raising children—stability plus complementary male and female role models (Mum and Dad):
men and women complement each other in marriage—benefiting each other and society.
in other words, the Government's bill—
is presented as a gift to the people of NSW, but in reality it is counterfeit of marriage. These registered relationships would be given a social and legal status equivalent to marriage, but without the responsibilities and duties of marriage, which include a promise of exclusivity and lifelong commitment.
This issue is too important. We are talking about the future of our children and the stability of our society. I will listen to the church and to my conscience and oppose this legislation. It is a little incongruous that we have not heard from the Premier, who was happy to trumpet her credentials with the Catholic Church regarding World Youth Day and other issues. Her Government is acting contrary to the interests of the church and traditional family values to which I certainly am committed. I oppose the bill.
Ms CLOVER MOORE (Sydney) [9.50 p.m.]: I strongly support the Relationships Register Bill 2010, unlike the member to whom we just listened politely. I introduced a similar but more extensive Significant Personal Relationships Bill 13 years ago in 1997, which became the model for Tasmanian and Victorian legislation that has been in place for many years. The Relationships Register Bill 2010 will give adults in a de facto or couple relationship the opportunity to have that relationship officially recognised, ensuring their rights as a couple. Consenting adults should be free to establish relationships: it is a private matter that does not involve the law. Support from the law is needed at times to ensure fairness, to prevent injustice or to provide protection, particularly in times of crisis. It is Parliament's responsibility to support and protect relationships that provide stability and belonging for the people involved, irrespective of sexuality.
This Parliament has lagged behind community values in removing discrimination from legislation. I hope the Anti-Discrimination Act and the Adoption Act are changed in the near future to remove remaining discrimination. Australians should also allow same-sex marriages if we support fair treatment for all citizens. As a society we should value and support loving relationships. All adult couples making a life commitment to each other should be able to marry if they wish. It is not fair to deny anyone that right because of his or her gender or sexuality—a position that is inconsistent with the views of the Australian community. The opportunity for legal recognition of a relationship under this bill is important to many same-sex couples who may fail to get protection under the law because of prejudice or cultural assumptions. This bill will provide greater guarantee to immediate access of rights.
I welcome the bill's inclusion of couples who live apart, which was included in my Significant Personal Relationships Bill. Work, incarceration and providing care to a family member are all reasons why couples may need to live apart, but their commitment should be recognised by law. The City of Sydney shows support for all couples through its Relationships Declaration Program. While this program has no legal standing, couples can use it to record their relationship, declare they are committed to a shared life and help demonstrate this for legal purposes. The council was the first Australian council to endorse the Declaration of Montreal, which aims to put gay, lesbian, bisexual and transgender [GLBT] rights on the United Nations agenda. The declaration states:
As a matter of simple equality, same-sex couples are entitled to the full range of relationship options available to different-sex couples, including marriage for those who choose it.
I commend the bill and look forward to seeing removal of all discrimination so that all loving couples get fair and equal treatment.
Mr GREG SMITH (Epping) [9.53 p.m.]: I am pleased to be given the opportunity as a member of the Liberal Party to follow my conscience to speak to and vote on an important piece of social legislation. Members of The Nationals are also given that freedom of conscience to vote on the Relationships Register Bill 2010. Once again the Labor Government has introduced a social policy bill that undermines the fundamental institution of marriage but denies its members a conscience vote. A number of Labor Party members have expressed privately that they would like a conscience vote as they would vote against the bill. The objects of the bill are:
(a) to provide for the legal recognition of relationships of couples, regardless of sex, by registration of the relationships,
(b) to recognise registered relationships, and interstate registered relationships, as de facto partnerships for the purposes of State legislation.
The Relationships Register Bill 2010 continues the Keneally Government's wish to achieve social engineering by accepting registered relationships as being on par with marriages by amending the Births, Deaths and Marriages Registration Act 1995 by inserting the words "registered relationships" after the word "marriage" in section 3 (d) of that Act. Section 3 (d) formerly stated:
(d) the keeping of registers for recording and preserving information about births, adoptions, deaths, marriages, changes of name and changes of sex in perpetuity.
Under the provisions of this bill section 3 (d) will be amended to include after the word "marriages" the words "registered relationships". Therefore, this bill is placing registered relationships on par with marriages. Section 4 of the Births, Deaths and Marriages Registration Act contains various definitions including that of a registrable event. At the moment a "registrable event" means a birth, adoption or discharge of adoption, a change of name, change of sex, death or marriage. Proposed section 4 (a) in schedule 2.1 to the Relationships Register Bill 2010 will give to a registered relationship the same special status as marriage. It states:
This Act and the regulations apply to a relationship that the Registrar determines may be registered under the Relationships
Register Act 2010 in the same way that they apply to a registrable event.
I remind the House that section 5 of the Commonwealth Marriage Act defines marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life." The Keneally Government is to be commended for deciding not to allow homosexuals and lesbians to adopt children. However, one wonders about the strength of that commitment as this bill, if enacted, appears to undermine that decision. Currently, de facto couples are eligible to apply to adopt children and the Adoption Act 2000 defines "de facto relationship" as meaning the relationship between a man and a woman who live together as husband and wife on a bona fide domestic basis, although not married to one another. The Relationships Register Bill 2010 will amend the very important and far-reaching Interpretation Act 1987 to include a different definition of "de facto relationship". Proposed section 21C states:
For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship [et cetera], or
(b) the person is in a de facto relationship with the other person.
The Interpretation Act will contain a definition of "de facto relationship" quite different from that in the Adoption Act. The Adoption Act will stand on its own, surrounded by other Acts and definitions. The amendments to the Interpretation Act 1987, which apply generally to Acts of Parliament, have put the Keneally Government's credibility on the line over its claim that it will not legalise adoption by same-sex couples. No doubt it is laying the groundwork for future amendments to allow adoption by homosexual and lesbian couples. In 1999 when the same-sex definition of "de facto relationship" had its genesis in the Property (Relationships) Act, then Attorney General the Hon. Jeff Shaw—of fond memory—was at pains to assure the Legislative Council that this definition would have no effect on the adoption laws. Indeed, the Government agreed to an amendment moved by Reverend the Hon. Fred Nile, which was expanded by the Hon. James Samios with the agreement of Reverend the Hon. Fred Nile. It read:
Nothing in the Property (Relationships) Legislation Amendment Act 1999 is to be taken to approve, endorse or initiate any change in the marriage relationship, which by law must be between members of the opposite sex, nor entitle any person to seek to adopt a child unless otherwise entitled to by law.
Despite the undoubted sincerity of the late Hon. Jeff Shaw, successive Labor governments have whittled away at the legal safeguards protecting marriage by using the Property (Relationships) Act definition of "de facto relationship", which includes same-sex couples, in other important social legislation. This includes the Assisted Reproductive Technology Act 2007, where, by a legislative Trojan horse, no mention was made in either the agreement in principle debate or the explanatory note of the definition of "spouse" or the fact that the legislation would allow same-sex couples access to reproductive technology. The definition in that Act is as follows:
spouse of a person means:
(a) the person's husband or wife, or
(b) the other party to a de facto relationship, within the meaning of the Property (Relationships) Act 1984
, with the person,
but if more than one person would so qualify as a spouse, means only the latest person to so qualify.
The term "Property (Relationships) Act" is included because ignorant members of Parliament, particularly the newer members, would not be aware of the Trojan horse definition of "de facto" that is in that Act. By stealth, the Iemma Labor Government avoided the controversy that surrounded the Federal Court's decision in John McBain v State of Victoria, Minister for Health of the State of Victoria, Infertility Treatment Authority and Lisa Meldrum
that declared provisions of the Victorian Infertility Treatment Act, which limited infertility treatment to married and male or female de facto partners, were invalid under the Commonwealth Sex Discrimination Act. The Federal Court ruled that infertility treatment should be available to single women. But the then Victorian Premier, Steve Bracks, refused to allow any amendment to that Act to allow lesbian couples to receive assistive fertility treatment. He said:
In Victoria, we want the Act upheld, and that has been our position.
The court case has changed that.
I'll live with the court case and live with the spirit of it, and that is that IVF will be available under guidelines for infertile women, not for those who choose it as a lifestyle.
Indeed, a very senior member of the Australian Labor Party's Federal executive, Mr Joe De Bruyn, sought to ensure that the Australian Labor Party would not support the decision in McBain's case, which legislation was introduced to amend. He was defeated by only three votes in the Federal executive's decision, so clearly there is a split in the Labor Party on these issues. In spite of that, the Australian Labor Party will not allow a conscience vote. The Iemma Labor Government came out of the closet in 2008 and provoked controversy by including a definition of "de facto relationships" that applied to same-sex couples in the Miscellaneous Acts Amendment (Same Sex Relationships) Bill 2008. Heath Gilmore reported in the Sun Herald
on 18 May 2008 in a piece headed, "'Father' to go from birth certificates":
A CONTROVERSIAL new bill that will remove the word "father" from birth certificates to recognise lesbian couples who have children through IVF will be put before NSW Parliament.
Later he stated:
The bill equates the position of a lesbian partner of a woman who has a child after becoming pregnant by a fertilisation procedure, other than sexual intercourse, with the position of a married woman's husband. Lesbian parents will see expressions such as "birth mother" replace "mother" and "both parents" to replace "the father and the mother" on birth certificates.
The 2008 bill incorporated the same-sex definition of de facto couples into a number of important Acts dealing with social issues, including the Anti-Discrimination Act 1977, the Status of Children Act 1996 and the Births, Death and Marriages Registration Act 1995. The bill was passed in an amended form after the Government accepted Reverend the Hon. Fred Nile's amendment to the Births, Deaths and Marriages Registration Regulation, which stated:
Insert after clause 5 (2):
(3) If the particulars supplied to the Registrar under section 14 of the Act specify that:
(a) a parent who is the father of the child wishes to be identified in the Register as the father, or
(b) a parent who is the birth mother of the child wishes to be identified in the Register as the mother, or both,
the particulars entered in the Register under section 17 of the Act must identify the parent as the father or mother, as the case requires. This subclause does not limit the particulars which may be included in the Register.
That amendment was necessary to ensure that the natural parents of a child could be identified as the child's mother and father in the child's birth certificate. In the current bill, the Government has thrown caution to the wind and seeks to introduce same-sex definitions of "spouse", "de facto couples" and "de facto relationships" into many more Acts of Parliament. But the Government has sought to suppress publicity that may be given to a division in Parliament by introducing the legislation on the day when the Federal budget is presented. The Government has timed the legislation to keep people from becoming aware that members are debating the issue. The male and female de facto couple definition in the Adoption Act will be isolated, and perhaps that definition could be described as the end nob of the salami of laws that protect marriage and children.
This bill, which reflects a doctrinaire government, renders most fragile the position of the Adoption Act definition of "de facto couples". It is difficult to justify the position adopted by the Government so close to an election. The passing of this bill will be another increment in the undermining and destruction of marriage and the traditional family. The analogous legislation in the Australian Capital Territory, Victoria and Tasmania, combined with this law when enacted, will have an effect on the bastion of marriage that is akin to General Santa Anna's troops surrounding the Alamo, starving out the defenders of an independent Texas. The supporters of marriage and the family feel like the occupants of strife-torn Derry during the troubles in Northern Ireland in the 1960s and 1970s, epitomised in the following lines of the iconic Phil Caulder song, The Town I Loved So Well
, which members will be pleased to know I do not intend to sing:
For what's done is done and what's won is won
and what's lost is lost and gone forever
Various churches and other pro-family agencies and individuals have sent me their views, and almost all either oppose the bill or seek amendment to the bill. [Extension of time agreed to.
In a fax I received this afternoon, Dr Peter Jensen, who is the Anglican Archbishop of Sydney, sought amendments to the bill to improve its operation and to ensure that it does not have unintended consequences. He did not object to the concept of a register in principle, provided that registration does not give rise to recognition to a relationship in such a way that it mimics, and thereby undermines, the uniqueness of marriage. He stated that he understands that that is not the intention of the Government. The amendments he sought, in summary, are that the bill incorporate a provision expressly prohibiting any form of ceremony, whether by or on behalf of the registrar or at the registry, in connection with the registration of a relationship, and that an equivalent provision to section 62 of the Property (Relationships) Legislation Act 1984 be incorporated in the bill. Section 62 states:
Nothing in the Property (Relationships) Legislation Amendment Act 1999 is to be taken to approve, endorse or initiate any change in the marriage relationship, which by law must be between persons of the opposite sex, nor entitle any person to seek to adopt a child unless otherwise entitled to by law.
Dr Jensen also requested that the register be extended to include "close personal relationships". I might add that if the Government is really sincere in wanting to assist people in close personal relationships, such as brothers and sisters who are living together to perhaps look after their aged mother, it would recognise that in this bill and give them the same rights as it intends to give to same-sex couples. Dr Jensen also suggested that perhaps, in due course, the civil and property benefits that persons in de facto relationships enjoy could be extended to include persons in "close personal relationships".
My colleague the Leader of The Nationals, Andrew Stoner, has referred to Chris Meney's comments, and I adopt those comments. I add comments made by Mr Gerard Calilhanna, who referred to a publication of the New South Wales Parliamentary Library Research Service by Karina Anthony and Talina Drabsch entitled "Legal Recognition of Same-Sex Relationships: Briefing Paper No. 9/06" in which, at page 41, there is a lengthy quote from J. Millbank's article, "Same-sex Families", in Hot Topics 53. The latter article is worth repeating in full because it outlines the incremental strategy for the overthrow of marriage laws and their replacement with a false concept of marriage, contrary to "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life" in section 5 of the Marriage Act. Millbank's five-year-old analysis reads:
No country anywhere in the world has passed laws going from absolutely no form of same-sex relationship recognition directly to same-sex marriage. Rather, over a period of many years, a series of changes have built incrementally on one another. Generally progress has gone along the following sequence: decriminalisation of gay sex, implementation of anti-discrimination protections, some limited recognition of relationships either through de facto relationship recognition or limited registration systems, and then through one or more stages a move to broader relationship recognition, then (usually) some parenting recognition, then a status similar to marriage but called something else such as 'civil union' or 'registered partnership', and then, some years later, marriage.
It is close to midnight so far as this legislation is concerned. For far too long the debate about marriage—what constitutes a marriage, whether homosexuals should be allowed to marry and whether marriage in fact has any utility in modern society—has been dominated by ideological pontificating. Neither side of this debate can deny that a close family setting is the first experience that a newborn has of society and, as a consequence this forum, becomes a place where the first and most fundamental lessons about human relations are learned. It is plain commonsense to suggest that the erosion of this forum will be harmful to the individual child and future society.
Because of its public value, marriage is not just a private affair. Society has a stake in the maintenance of those family structures that have over time been tried and proven to be the most fruitful for the raising and education of future generations. That is why the State has made laws relating to marriage, its formation and how to manage the process in the unfortunate event of a breakdown. Mucking around with families will have real deleterious consequences for society at large. In a 2005 study of 23 academic reports on the relationship between crime and family breakdown, the American Institute for Marriage and Public Policy found that an overwhelming majority held break-up of a family unit responsible for increased rates of juvenile delinquency. Young boys were found to be more violent and less attentive in their schooling, and young girls were found to be more promiscuous. In general, the culture this fosters is one in which various social pathologies, including drug use, teenage pregnancy and the social problems associated with these, are allowed to flourish. There is nothing progressive about any of this.
Of course, the bill purports to create a mechanism for the registration of civil partnerships, in effect. Those in favour may point out that it does not break up marriage but contributes to the culture of people coming together. This is grossly misguided. Let us not kid ourselves. This bill is a strategy to pave the way ultimately for gay marriage in this country, as it exists in other States as well. It is the typical salami tactic of pushing something through that is controversial or may rouse significant public ire. It is a first step in defining marriage in the broadest possible terms so that any cohabitation model would fit the description. It is an attempt to further water down the very concept of marriage that has stood the test of time for millennia.
Something must be said for the rate of fatherlessness in broken marriages today. This trend is in no small part responsible for harmful effects of marriage breakdown. Patrick Faga of the American-based Heritage Foundation identified the absence and exclusion of fathers from the marriage compact as directly related to the crime rates of notorious crime-ridden neighbourhoods. The violence that plagues those communities can be traced back to the violent behaviour of undisciplined children between the ages of five and six. For all those reasons—I respect the views of others who disagree—I ask members of Parliament to vote against this legislation. Again, I appeal to the Labor Party to allow its members a conscience vote.
Ms VERITY FIRTH
(Balmain—Minister for Education and Training) [10.13 p.m.]: I support the Relationships Register Bill 2010. Labor in government has a proud record of reform for gay men and lesbians. In 1984 it was the Wran Labor Government that decriminalised homosexual activity between consenting adults. From 1995 to 2010 the New South Wales Labor Government has eliminated discrimination and provided legal recognition of same-sex de facto couples in more than 100 pieces of State legislation. It has been the New South Wales Labor Party that amended the Anti-Discrimination Act to ensure equal protection for lesbians and gay men caring for their partners, changed State superannuation laws to recognise same-sex couples, equalised the age of consent laws, and provided legal recognition for both partners in lesbian couples with children as the legal parents of their children.
At a Federal level, it was the Whitlam Labor Government in the early 1970s that first included "sexual preference" as a ground on which workplace discrimination could be investigated. From 1983 to 1996 the Hawke and Keating governments added sexual orientation anti-discrimination protection to the Public Service Act, recognised same-sex couples for immigration purposes, passed sexual privacy laws, and declared anti-gay discrimination in the workplace to be a breach of human rights. In 2008 the Rudd Government legislated to remove discrimination against same-sex couples from 85 pieces of Federal law and recognised the children of same-sex couples for the first time.
Gay and lesbian couples deserve equal treatment under the law. This bill brings same-sex couples in this State one step closer to full equality. I am proud to support this bill, which will give all de facto couples in New South Wales the ability to have their relationships recognised in a simple and practical way. Families come in all shapes and sizes. We know that it is the quality of love and care within a family that matters, not the gender of the parents. I believe that government should seek to recognise a broad and inclusive definition of "family". Couples who choose not to, or are not able to, have their relationships recognised by entering into a marriage should not be discriminated against. This register gives these couples a simple and tangible way to have their relationships recognised.
Having a registration certificate will mean that couples will not have to tediously prove the existence of their relationship in hospitals, in schools, at Centrelink or in the courts. It will mean that when a lesbian wishes to visit her partner in hospital or make medical decisions on her behalf, she will be able to do so without question. Even though this has been the case in New South Wales since 1999, I know from conversations with residents of my electorate that many same-sex couples are not aware of what rights they do and do not have. Moreover, given social prejudices, same-sex couples sometimes experience undue questioning of their relationship or even a refusal to recognise it altogether. Having a certificate that can be presented in these situations will give same-sex couples—and heterosexual de facto couples, too, for that matter—peace of mind and solid proof of their relationship.
This legislation also recognises that in this day and age some couples cannot or do not live together due to work or personal circumstances. Currently, much State and Federal de facto legislation requires some level of cohabitation for a relationship to be proved. I am glad that any couple who takes the significant step of registering their relationship will be afforded the same rights and responsibilities as any other de facto couple. It has already been acknowledged that relationship registers exist in Tasmania, Victoria and the Australian Capital Territory. However, I note that the lack of a nationally consistent relationship recognition scheme for de facto couples continues to be an issue of concern. I commend the Attorney General for his ongoing efforts to ensure that relationships registered through State-based schemes are formally recognised beyond their jurisdiction and afforded consistent rights and responsibilities.
This will provide security for de facto couples within Australia when travelling or moving interstate. In 2008 the Rudd Government made sweeping changes to Federal laws, recognising same-sex couples and removing discrimination from Commonwealth laws. These changes also recognised de factos who are recognised under State and Territory laws. The introduction of this relationship register in New South Wales will benefit couples needing to prove their relationships to access not only State Government services but also Commonwealth agencies and entitlements. It will also be possible for New South Wales residents to be automatically recognised as de facto partners for the purposes of Commonwealth legislation as well as New South Wales laws.
However, the creation of a relationship register will not adequately address the concerns of many in the community regarding the lack of formal relationship recognition for same-sex couples. While I understand that this is a matter for the Commonwealth Government, I know that many residents in my electorate feel passionately about equality for lesbians, gay men and their families, and I will continue to pursue this end in my discussions with government and the community. The register will provide greater legal security for both heterosexual and same-sex de facto couples and bring New South Wales into line with other States. It brings gay and lesbian couples in New South Wales one step closer to full equality.
This is not a reform that should be dismissed as tokenistic. This register shows that the New South Wales Government is serious about recognising and protecting the diverse range of families in New South Wales. It shows that the New South Wales Government is serious about ensuring that couples, both gay and straight, who choose not to or are unable to marry, can quickly prove their relationships when engaging with government agencies and services. It shows that this Government is serious about delivering reforms, which bring security and dignity to the everyday lives of people in this State. I commend the Attorney General and his office for their work in crafting this bill. I know that legislating in areas such as this can be a very involved and complicated process, and the result is fantastic.
Finally, before coming into the House to debate this bill today I was remembering that at the age of 14 it suddenly dawned on me that everyone should be free to love whoever they fall in love with, and that a civilised society would never stand in the way of something as giving and fundamentally human as this. I commend the bill to the House.
Mr ROB STOKES
(Pittwater) [10.21 p.m.]: I rise to make a brief contribution to the Relationships Registered Bill 2010. I have listened carefully to the contributions of members thus far in this debate. I am reminded of the words of Robert Frost, who said, "A liberal is a man too broadminded to take his own side in an argument." In many ways I identify with this. I have heard people say that this bill is the first step towards recognition of same-sex marriage, and I have heard others say that it is an attack on the institution of marriage. In reality, after reading the bill I do not think it is either of those things. I do not believe the bill has anything to do with equality. I think equality in relationships is very important. I certainly believe in equality for all people to enter positive, healthy and committed relationships—which I think is one of the most wonderful things, if not the most wonderful thing, any of us can do in life. However, as I said, I do not believe this bill has anything to do with equality.
Nothing in this bill makes anyone more equal. Yes, there are elements in the bill that relieve an evidentiary burden to establish whether one is in a relationship, but it has nothing to do with equality. Under this bill a homosexual couple can get their relationship registered, and so can a heterosexual couple. Under the bill a homosexual couple cannot get married; under Commonwealth legislation a heterosexual couple can get married. The same rights that couples currently have will not be enhanced by this bill, but nor will they be limited by it. We have heard a lot of rhetoric about equality, but this bill is not about equality.
What does the bill do? It creates a register—a register of relationships, a register of de facto relationships. This in itself is a legal fiction. "De facto" refers to a relationship established by an examination of the facts. A relationship recognised by its inclusion in some sort of register cannot, by definition, be de facto. It is a de jure relationship, not a de facto relationship. If it were a de facto relationship, it would not be in a register. Under the current legislation a person can be married or de facto. Under the bill's provisions, a person can be de facto and registered, or a person can be de facto by registration and also in a de facto relationship with someone else, by virtue of
the operation of proposed section 21C (2).
I ask: Why do we have to register everything? What will be next—a register of friendships, a register of acquaintances, a register of enemies? Will the Government become some sort of relationship registry—a sort of governmental Facebook, where our personal lives can be categorised, characterised and pigeonholed? A register does nothing to make a relationship better. Good marriages and bad marriages are equal in the eyes of the Commonwealth law already. Just because something is registered does not make it special or important—just registered, just filed, just paginated.
Relationships are bigger than legislation. Giving something a legal description does not magnify it; indeed, it can minimise it. It can hide problems within it. How many broken and hate-filled relationships fester underneath the guise and respectability of a properly registered marriage, for example? That first real objective—providing for legal recognition of relationships of couples, regardless of sex, by registration—does nothing to advance the cause of equality.
Another objective of the bill is to recognise relationships recorded on the register as de facto relationships for the purpose of State law. The term "de facto relationship" is defined in the Property (Relationships) Act 1984. As has been mentioned in this debate, since June 1999 the definition has been widened to cover all relationships between two adults over the age of 18 who live together as a couple and are not married, and are not siblings or a parent or child of each other. This means that homosexual couples are already covered under the definition of de facto couples. The only difference under this bill is that the piece of paper will be enough to establish the existence of the de facto relationship for the purpose of State legislation—140 pieces of which will be altered as a result of this bill. Although property aspects of these relationships are dealt with under State law, the law relating to children of such relationships will continue to be regulated under Federal legislation. Most laws dealing with taxation, social welfare, pensions, and so on, already treat de facto marriages in the same manner as marriages that are recognised under the Commonwealth Marriage Act.
I have a question for the Minister to address in reply. What impact will this bill have in relation to Commonwealth legislation? For example, will the registered relationship have any impact on immigration matters or other Federal issues? What are the implications of the bill for Federal law?
Mr Paul McLeay:
Mr Barry Collier: It won't affect marriage, will it?
Mr ROB STOKES: It will not affect marriage, but I ask whether it will have an impact on proving a relationship for an immigration matter, for example. I say to those in this debate who have lauded this bill as some sort of victory on the path towards same-sex marriage: Without commenting on whether that objective is good, bad or indifferent, it is certainly not a matter for this place.
Where else, then?
Mr ROB STOKES:
It is a matter for the Federal Parliament.
Mr Barry Collier:
Section 51 (xxi) and (xxii).
Mr ROB STOKES:
As the Parliamentary Secretary says, section 51 (xxi) and (xxii) of the Commonwealth Constitution are the relevant provisions governing marriage. That is really where a debate about same-sex marriage should be taking place. Make no mistake: this is not about civil union. The only Parliament that can really act in these sorts of matters is the Commonwealth; we are phoneys if we pretend otherwise. This Parliament should not pretend to be something it is not—by introducing some kind of "marriage light" and passing it off as some victory for equality.
This bill is just an exercise in puffery—an advertisement saying we can do something that we cannot. I encourage the Government to introduce legislation that actually improves equality—providing access to services, while getting Government off the backs of people, out of their private lives, and simply focussing on the things a State government can do. I really do not think this bill changes legal rights. It contains 59 pages of pretty much nothing. I agree that there is some improvement in terms of providing evidence of the existence of a de facto relationship, but apart from that the bill does very little at all. It does nothing to promote equality at law.
I do not believe State governments should be in the business of registering personal relationships. State governments should be in the business of regulating financial relationships or fiduciary relationships, but certainly not personal relationships. I simply do not believe that is the business of government. As a Liberal I believe in less law, not more, and in less regulation, not more. But I also concede—and this is where my struggle has been—that I do not think this bill does any harm. I do not believe it undermines any institution of marriage. I know people who feel that their relationship cannot be recognised in any other way except by this bill. In respect for those people, whom I know, I believe that because this bill does not do any harm I will lend it my support.
On a philosophical level I do not believe in law just for the sake of it. I do not believe in law that sounds as though it is doing something when it is doing nothing. I will close with a quote from an article I read recently in Meanjin
in which Andrew Sant was reflecting on his own marriage. When asked by his father on the day of his marriage why he was getting married, he said:
The answer was that we were doing it for him and the aforementioned nonlibertarian relatives who couldn't attend or didn't have the contraceptive pill in their day. It was, under the cheerful circumstances, an obligation, the done thing. We, after all the generations of marriages in our families, didn't want to go it alone, cause upset, be shunned. All of a sudden, minutes prior to signing the marriage certificate, the sense we had of generational coercion appeared to be radically misplaced. It put me off my stride when going up the steps. But too late to say, "Hey look, it appears out of the blue we can take an alternative route", which is what my friends may be considering now, the institution ever being reinforced by politicians, churchmen and other parties with a necessary interest in social order.
It will be great when social order does not rely on the registration of relationships but on real relationships based on love and commitment and service that are only registered in our memories and our hearts.
Mr PAUL McLEAY
(Heathcote—Minister for Ports and Waterways, and Minister for the Illawarra) [10.31 p.m.]: I was able to reflect on the Relationships Register Bill, which contains a lot of complicating factors and issues to be dealt with, but a lot of it comes down to a simple statement and a concept. We do not often get opportunities to celebrate events and to sit with our community, friends, family, loved ones and for some, their church, to say, "What are these rituals that we are to celebrate?" Ten years and 5½ months ago my wife and I were married at our local church in Summer Hill in front of my friends, my family and my God. We celebrated our marriage in amazing style, which I very much enjoyed. To this day I love my wife just as much as I did then. The year before last I attended the wedding of our friends Eleanor and Kate, which was a wedding in the same way as ours was. Mothers still cried, kids were still excited and the couple were just as much in love as Cass and I.
For many people marriage is simple: It is two people standing together telling everyone they know how much they love each other. It is not a conspiracy against my moral values. It is not a conspiracy against an opportunity to celebrate and share everything that we hold important. It is their good fortune that they are able to tell everyone that they love each other. It is their good fortune to stand up in front of their friends and family, and, if they are lucky enough, they get to have children. I do not believe there is any harm in naming it. I do not believe there is any harm in Eleanor and Kate saying that they are married. They get to put their names on a certificate and they have the ability to celebrate with their families. Mothers still cry—they have been doing it for years—and their family are with them. If you believe in a free society, but that society stops at the freedoms that we enjoy and take dearly, that is a cheap shot. We must let people enjoy the benefits that we all take for granted.
If people stop sharing the gift of love because they have put a boundary around it, that cheats our fellow citizens. We all celebrate the way we do; we pray the way we pray; we love who we love and we say what we want to say, and I say that people of the same sex in New South Wales should be able to celebrate their love and put their name on a register. Ben Edwards, a friend of mine, was the candidate with Mr Gay Australia. He is a rugby player and a good bloke. He is a very strong advocate for gay marriage in New South Wales. He makes a lot of strong arguments, and I support them. When I see Eleanor's and Kate's daughter, Tilly, I know that their mums love each other as much as Cass and I love each other.
Mr MALCOLM KERR
(Cronulla) [10.35 p.m.]: There has been a great deal of talk about marriage during the course of the last two speeches. The member for Pittwater gave a lengthy quotation about the institution of marriage.
Mr Brad Hazzard:
You are not going to do that?
Mr MALCOLM KERR:
No, mine will be much shorter. As the member for Wakehurst would know, the best thing about marriage is that it combines the maximum amount of temptation with the maximum amount of opportunity. The Relationships Register Bill 2010 is hardly a marriage enrichment bill. There has been very little consultation on this very important legislation. This bill is being rushed through at this unfriendly hour for families, I might say.
Mr Brad Hazzard:
And you have contributed to it.
Mr MALCOLM KERR:
No, I have not contributed to any family, I remind the member for Wakehurst, nor is the Government contributing to its own policy of family friendly hours. This House should have adjourned some hours ago. Why are we debating this legislation? Because it is budget night and consequently this bill will not get as much coverage in the press as it would otherwise attract, coverage that would embarrass this Government. This bill has a number of unintended dangers that could have been avoided if a great deal more consultation had been carried out. The bill will provide evidence of relationships for the purposes of numerous Acts of Parliament and will affect rights. While people can choose to register, they are not required to register a breakdown of the relationship. There will be evidence of a relationship. However, if a person chooses not to register the fact that that relationship has broken down and then continues to enter into a number of other relationships, the register will remain as evidence of a previous relationship, which may now be hate filled. It will give certain rights to that other person that were never intended.
The fact that this register will provide evidence of a relationship will lead to a great deal of unintended consequences and, I suspect, a great deal of injustices, given the variety of human relationships and the changes that occur in them. As the member for Pittwater said, it can be very dangerous when governments seek to govern human relationships. The State has a stake in marriage. We have heard about children, but property rights and the stability of the State are vitally concerned with the recognition of marriage and the end of marriage. That is why the State has administered laws in relation to both marriage and divorce.
The advocates of this bill have given a series of contradictions. The member for Bathurst said it had nothing to do with sexuality but we have heard a great deal about how this is a step towards the recognition of same-sex couples and how that is totally justified. Other people have said it has no affect on marriage or adoption. If this legislation is intended to have no affect on marriage or adoption then perhaps the Government should accept the suggestion of the Archbishop of Sydney of an amendment. That suggestion is presently found in section 62 of the Property (Relationships) Legislation Act 1984, which states:
Nothing in the Property (Relationships) Legislation Amendment Act 1999 is to be taken to approve, endorse or initiate any change in the marriage relationship, which by law must be between persons of the opposite sex, or entitle any person to seek to adopt a child unless otherwise entitled by law.
That would presumably go some way to stating without doubt the intent, but the danger of this legislation is that so many unintended consequences could occur and so many contingences might arise. It is also incomplete. The Archbishop of Sydney further said:
I note that the Bill does not incorporate provisions for the registration of 'caring' or interdependent relationships despite such measures being in place in other jurisdictions in Australia, namely Victoria and Tasmania.
I note that the Property (Relationships) Legislation Act 1984 already includes a category of 'close personal relationships', which incorporates caring interdependent relationships. However the breadth of legislation under which 'close personal relationships' are recognised is very narrow. This has created unfairness. For example, presently the Anti-Discrimination Act 1977 only recognises a married or de facto relationship for the purposes of carer discrimination. Should not an interdependent couple be given the same protection from carer discrimination so that they can care for one another at a time of need? A number of other examples of unfairness concerning civil and property benefits could also be cited.
If the Government really wants to be serious about legislation in this area then it should seek the views of the community, which it has not done. This legislation is being sneaked through in the dead of night without adequate community consultation and will impact on a number of people. It may impact on them quite unfairly because the register provides evidence of a relationship that in later years may be hollow or even hostile. Those considerations lead me to oppose this bill, which is ill thought out and has not enlisted the views of the public. There are great dangers in any government trying to govern human relationships.
Mr GREG PIPER
(Lake Macquarie) [10.42 p.m.]: I make a brief contribution to the debate on the Relationships Register Bill 2010. In the course of my life I have made many friends, and I continue to have many friends, who live in a same-sex relationship. I would be dishonouring my friendships with those people if I did not speak to this bill. I have embraced each of those people and not taken into account their sexuality, which is irrelevant to my friendship and how I view them as valuable members of our community.
I do not believe the bill contains the sinister connotations referred to by others who have spoken against it. However, in any legislation from time to time matters will occur inconsequentially or as an unintended consequence. One of the key premises of opposition to the bill by the Leader of The Nationals was the commitment that should be within a relationship. I know of many relationships between same-sex couples, alternate relationships, where that commitment has existed for many years and has probably outlasted many relationships that have enjoyed the sanctity of marriage under the appropriate legislation. Indeed, many people in heterosexual relationships do not treat their relationships with the same sanctity as many of those in alternate relationships.
The member for Epping referred to this bill as the Keneally Government's attempt at social engineering. I do not see it that way, but we should look at social equity and the provision of social justice to many people who have been denied basic access to it and legislative protection across this State. The bill covers many areas but the broad basic issue is discrimination. Without accepting changes such as these we will continue to utter meaningless rhetoric on discrimination. The legislation is a well considered and heartfelt attempt to try to address some of the inequities suffered by people who, through no fault of their own, are living in circumstances in which they have been denied the same rights and justice afforded to others within our community.
Mr PETER DEBNAM (Vaucluse) [10.46 p.m.]: I am pleased to support the Relationships Register Bill 2010. The objects of the bill are to provide for the legal recognition of relationships of couples, regardless of sex, by registration of the relationships; and to recognise registered relationships, and interstate registered relationships, as de facto partnerships for the purposes of State legislation. Part 2 of the bill relates to the registration of relationships and clause 5 entitles two adults who are in a relationship as a couple to apply to the Registrar of Births, Deaths and Marriages for registration of their relationship. Schedule 2.2, section 21C (3) sets out the determination of "relationship as a couple" and states:
In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties; and
(i) the reputation and public aspects of the relationship.
It includes the qualification:
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
This bill is about recognising relationships that have been with us for long a time and which, as many speakers have said, have been hidden for various reasons and discriminated against. To paraphrase the words of the member for Pittwater, who has left the Chamber, this bill is about recognising healthy, committed, loving relationships. That is exactly what it is about. It is also about removing discrimination. I think that a lot of people in New South Wales will support this legislation. I believe marriage is an appropriate union between a man and woman and I do not see this as a step towards the concept of same-sex marriage.
This important legislation is long overdue and is really a catch up with contemporary society, but why is it being debated tonight? It is a real shame that it is being debated tonight because it warrants a lot more attention. Various speakers in opposition to this legislation have raised legitimate arguments, which no doubt sections of the New South Wales public would agree with. However, I do not. This important bill is being debated on an unscheduled night sitting of Parliament, on the very night that the Federal Government delivered its budget. Bearing that in mind, one could reach only one conclusion about this bill: the Government is trying to hide it, and that is a sad state of affairs because it is very important. Many people would like to hear about the bill but they will not because all the media coverage for the next week will be on the Federal budget. This important bill is being delivered by a gutless government!
Over the 17 years I have been a member of Parliament I have witnessed a deterioration in not only the standard of government in this State but also the standard of arguments advanced in this Chamber. Really it has been not so much a race to the bottom but rather a meandering towards mediocrity. It is obvious that no-one on the Government side has the courage of his or her convictions, and I am astounded, as someone has already said, that the Premier is not in the House tonight debating this bill. What does the Premier have to hide? Sure, she is a solid member of the Catholic Church and she has certain convictions, but her Government is moving this bill through the House tonight and it will become law in this State—and it is very important that it does become law.
Labor Ministers, especially the Premier, should have the courage of their convictions and come into the House and show their support for the bill. I respect some of my colleagues who have had the courage of their convictions to say, for various reasons, they disagree with the bill. But it is a real commentary on this Parliament, especially in recent years when it became really run down—
Mr Barry Collier:
Point of order: I ask that the member for Vaucluse be brought back to the leave of the bill rather than continue to comment about which members have or have not spoken or who should or should not speak in this debate.
ACTING-SPEAKER (Mr Frank Terenzini):
Order! The member for Vaucluse is aware of the parameters of the bill. The member for Vaucluse may continue.
Mr PETER DEBNAM:
Spot on Mr Acting-Speaker! I am very much aware of what the bill is about, and I have been waiting for it for a long time. The member for Sydney said that she introduced a draft bill on the same subject 13 years ago. The Labor Government has been in office for 15 years, and finally it has had the courage to introduce the bill, but Labor members are hiding from it. On Federal budget night only the Minister for Education and Training, the Minister for Health and the Minister for Ports and Waterways have contributed to debate. We have heard from no other Minister. They should all be present in the Chamber saying that they are proud of this bill. But it is clear that they are not proud of it, and that is a shame.
Mr PETER DRAPER
(Tamworth) [10.52 p.m.]: The Relationships Register Bill 2010 aims to provide, among other things, for the legal recognition of relationships of couples, regardless of sex, by registration of those relationships. As someone who worked in book publishing for a long time I collect literature, and I would like to share with the House a note that I refer to quite regularly because it sums up many of the problems society faces. It states:
ACTING-SPEAKER (Mr Frank Terenzini):
The paradox of our time in history is that we have taller buildings but shorter tempers, wider Freeways, but narrower viewpoints. We spend more, but have less; we buy more, but enjoy less. We have bigger houses and smaller families, more conveniences, but less time. We have more degrees but less sense, more knowledge, but less judgement, more experts, yet more problems, more medicine, but less wellness.
We drink too much, smoke too much, spend too recklessly, laugh too little, drive too fast, get too angry, stay up too late, get up too tired, read too little, watch TV too much, and pray too seldom.
We have multiplied our possessions, but reduced our values. We talk too much, love too seldom, and hate too often.
We have learned how to make a living, but not a life. We have added years to life not life to years. We have been all the way to the moon and back, but have trouble crossing the street to meet a new neighbour. We conquered outer space but not inner space. We have done larger things, but not better things.
We have cleaned up the air, but polluted the soul. We have conquered the atom, but not our prejudice. We write more, but learn less. We plan more, but accomplish less. We have learned to rush, but not to wait. We build more computers to hold more information, to produce more copies than ever, but we communicate less and less.
These are the times of fast foods and slow digestion, big men and small character, steep profits and shallow relationships. These are the days of two incomes but more divorce, fancier houses, but broken homes. These are days of quick trips, disposable nappies, throwaway morality, one night stands, overweight bodies, and pills that do everything from cheer, to quiet, to kill. It is a time when there is much in the showroom window and nothing in the stockroom
Remember; spend some time with your loved ones, because they are not going to be around forever. Remember, say a kind word to someone who looks up to you in awe, because that little person soon will grow up and leave your side.
Remember, to give a warm hug to the one next to you, because that is the only treasure you can give with your heart and it does not cost a cent.
Remember, to say, "I love you" to your partner and your loved ones, but most of all mean it
Mr Brad Hazzard: Where is the bill? The member has spoken for three minutes and has made no mention of the bill.
Order! The member for Tamworth will be heard in silence.
Mr PETER DRAPER: The notation continues:
Life is not measured by the number of breaths we take—
For the information of the member for Wakehurst, this note was written by a fellow who was very well known in the 1970s and 1980s and who lost his wife. This debate is about relationships. As a local member I see many people coming into my office who are in married relationships and who are subject to a whole range of behaviour including violence, abuse and incest—behaviour that should not be endured by anyone. Some 16,000 people are in out-of-care foster homes and tonight we are talking about relationships. I believe very strongly in the relationship of marriage. I have been married for 27 years to my wife, Sharon. Marriage is a relationship that should be valued by all members of society. My brother has been with his partner for 27 years also, although not in a marriage relationship. I do not believe that he should miss out on the opportunities that I enjoy as a married man just because he is not married. I strongly support the bill.
Mrs DAWN FARDELL
(Dubbo) [10.55 p.m.]: The purpose of the Relationships Register Bill 2010 is to allow for the formal recognition of relationships, to recognise partners in registered relationships as de facto partners. All members of Parliament have received numerous letters and emails concerning this bill, although not as many as were received with regard to the animal bill of the member for Bligh. I am concerned that some members of Parliament are critical of others for their stand on this bill, stating that voting on this proposed legislation should be by way of conscience, which should not be taken lightly. Many of us believe in the sanctimony of marriage, but we should accept also that others do not take the same stand.
One contact from a Sydney electorate stated that "homosexuals rarely have a mutually exclusive relationship and are known to have multiple partners". Well, all I can say to that is that many heterosexuals in marriage also have many multiple partners. Another stated that numerous studies confirm that traditional, heterosexual marriage is the relationship that provides the most natural, stable and optimal foundation on which to nurture and bring up children. The families who seek my assistance as their local member are married, single, or in relationships. Some have children, others do not. Some are heterosexual, others homosexual. But one thing is very apparent with all these groups: they all experience the same issues in life—they seek housing, they are victims of domestic violence, they have children who are intimidated at school, et cetera. There is no discrimination.
To me it is important that a child or an individual feels loved and supported. This law is important to ensure that couples that are not conventionally joined receive the same emotional and financial benefits as those who are, regardless of their situation. There is nothing more important than legalisation on relationships and in my eyes those who accept this bill are no less religious than those who oppose it. The needs of previously married mums and dads, surrogate parents and co-parenting parents are important also. Who are we to judge how people choose their partners and what path people take? I support the bill.
Mr BARRY COLLIER
(Miranda—Parliamentary Secretary) [10.57 p.m.], in reply: I thank the Leader of the Opposition, the Leader of The Nationals and the members representing the electorates of Bathurst, Marrickville, Sydney, Epping, Balmain, Pittwater, Heathcote, Cronulla, Lake Macquarie, Vaucluse, Tamworth and Dubbo for their contributions to this debate. The member for Cronulla asked specifically about the level of consultation on this bill. I advise him that in 1999, the then Attorney General, the Hon. Jeff Shaw, QC, MLC, asked the New South Wales Law Reform Commission to inquire into and report on the operation of the Property Relationships Act 1999, which included a definition of "de facto" that was widely referred to across the New South Wales statute book.
The commission reported in 2006, recommending that the current system of recognising de facto relationships should be supplemented with an optional system of registration. That recommendation followed extensive consultation by the commission. The commission released a discussion paper and called for comment from the public. The commission received submissions from the Gay and Lesbian Rights Lobby, the Presbyterian Church of Australia, Centacare Sydney, the Anglican diocese of Sydney, the New South Wales Commission for Children and Young People, and the National Children's and Youth Law Centre, amongst others. The commission also undertook further and specific consultations with the gay and lesbian community by way of a questionnaire and focus groups conducted in Sydney and Lismore. Consultation also occurred with each Minister whose portfolio included affected legislation, with the New South Wales Trustee and Guardian, the Registry of Births, Deaths and Marriages, WorkCover, the Motor Accidents Authority, the trustees of superannuation funds affected by the change and the Treasury Managed Fund.
The Leader of The Nationals spoke about the word "committed". Although that word is not included in the test of eligibility, persons seeking to register their relationship must be in a "relationship as a couple" and must make a statutory declaration to that effect. The Government believes the requirement that persons be "in a relationship as a couple" and the requirement that the relationship be exclusive—that is, they must not be married or in a relationship as a couple with anyone else—clearly refers to a couple who are intimately involved with each other and no-one else. This clearly implies a degree of commitment. The fact that there is a cooling-off period of 28 days before a relationship can be registered and a 90-day cooling-off period before registration can be revoked also creates a barrier to persons entering lightly into a registered relationship and ensures that the decision to revoke a relationship is a considered one.
The bill does not redefine or devalue marriage. It does not seek to replace the institution of marriage. The Commonwealth Government has exclusive control over marriage through section 51 (xxi) of the Constitution. The Commonwealth Marriage Act covers the field in relation to marriage. Under that legislation the institution of marriage is a union between a man and a woman. The existence of an alternative form of legal recognition of the relationships of unmarried couples does not devalue or threaten marriage. Traditional marriages will continue to exist as they always have. Marriages on the one hand and registered relationships on the other do not need to compete for space. In part, this is because they do not occupy the same ground. Marriage is a unique institution that has a special status in Australian legislation, and it will continue to do so.
The Leader of The Nationals and the member for Epping talked about the bill undermining social cohesion by recognising relationships without the requirements of marriage, that is, a union of a man and woman to the exclusion of all others voluntarily entered into for life. The capacity for existing de facto couples to register their relationship is, in fact, more likely to be a source of enhanced social cohesion. The bill does not create any new relationships. It simply provides for legal recognition of relationships that already exist, promotes respect of those relationships and underpins their legitimacy. It is about allowing de facto couples to have their relationship formally recognised, to know that their relationships are taken seriously and to give them clearer and more certain legal status in New South Wales. Social cohesion means cohesion of society as it exists, including de facto couples, and not a selective form of cohesion in which only married couples can have their relationships officially recognised.
The member for Cronulla and the Leader of The Nationals said that the bill makes relationships all too easy to get into and out of. I have addressed that concern. The bill provides for a 28-day cooling-off period, during which time either party can withdraw the application. After that time the relationship can be registered. Registration is revoked by law on the death or marriage of a person in the relationship. Revocation may also occur on the application of either or both persons in the relationship. However, there is a 90-day cooling-off period between the application and the revocation of the relationship. The member for Epping raised an issue about the recording of a relationship. Simply recording a relationship does not put it on a par with marriage. It is clearly drawing a long bow to say that it is. Under the Register, a relationship is one of a list of relationships that may be registered. The member for Epping would be well aware of the provisions of section 51 (xxi) of the Commonwealth Constitution.
In response to the member for Epping and the member for Pittwater, clearly the legislation does not affect the Adoption Act. The Government has decided not to permit adoption by same-sex couples. Including a reference to registered relationships in that Act would impact on the interpretation of couples who are eligible to adopt. For the benefit of the member for Pittwater, the registration of a relationship will not demonstrate de facto status in a number of Acts, including the Landlord and Tenant Act, the Duties Act, the Judges Pension Act, the Legal Aid Commission Act, the Evidence Act, the Adoption Act and part 4.5 of the New South Wales Trustee and Guardian Act.
The bill does not provide for a ceremony in the same way as the Marriage Act does. However, there is nothing in the bill that prevents the holding of a ceremony or defines what sort of ceremony may occur. There is nothing to stop de facto couples celebrating the registration of their relationship as they wish. The aim of the bill is to provide for a symbolic and legal recognition of de facto relationships. The bill does so by providing for registration and conferring legitimacy on that registration. The Government does not consider it necessary to provide for a ceremony in legislation. The Government is of the view also that providing for a ceremony may encroach upon the Commonwealth's constitutional responsibility for making laws regarding marriage. In reply to the member for Epping's concerns about the Assisted Reproductive Technology Act 2007, I advise that this bill does not create any new rights for de facto couples. It simply provides an alternative way of demonstrating that a person is in a de facto relationship. The bill does not create any new rights with respect to assisted reproductive technology. The relationships register does not extend to caring relationships. It would be premature to include caring relationships on the New South Wales Register.
The bill is not a slippery slope to allowing marriage of same-sex partners or a backdoor to same-sex marriage. This bill is not about changing legal rights; it is about changing access to legal rights. As Opposition members are well aware, the Government is not in the business of regulating personal relationships. The bill creates a relationship register that will allow unmarried couples, heterosexual couples and same-sex couples to register their relationship in order to have their relationship recognised by law. It will allow couples in a registered relationship to demonstrate their eligibility for certain entitlements without having to prove their de facto relationship. This is an important step for unmarried couples in New South Wales, including those in same-sex relationships. It also ensures that New South Wales citizens can enter a registered relationship that is recognised under Commonwealth laws. I commend the bill to the House.
Question—That this bill be now agreed to in principle—put.
The House divided.
Mr R. W. Turner
Motion agreed to.
Bill agreed to in principle.
Question resolved in the affirmative.
Mr R. C. Williams
Passing of the Bill
Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.