Senator Nick Xenophon (Ind, SA) explained why following the gay bashing death of a lecturer of his, that on reflection he considered that gay marriage was preferable to civil unions:
The Marriage Amendment Bill (No. 2) 2012, which intends to legalise same-sex marriage, is not an easy issue for me to speak on. Unlike a number of my colleagues, who have held longstanding, definite if not definitive views on whether or not same-sex marriage should be legal in Australia, I have not been deeply involved in this debate. I have been working on a whole range of other issues. This does not mean, however, as one member of the House of Representatives suggested, that this is an eleventh-hour issue.
I know that many in the community have passionate, strongly held views as to whether same-sex marriage should be legalised. Insofar as those views are considered and respectful, I believe it is important in a great democracy such as Australia’s to carefully take those views into account before making a decision on this bill. It is my job—indeed, my duty—to do my best to understand both those who support and those who oppose this change to the Marriage Act, and to do so in a way that is not judgemental but both fair-minded and mindful of those who will support and of those who will reject the position I take.
Unlike other members of parliament whose party had a policy at the last election to not support such changes to the Marriage Act, as an Independent I am not constrained by any party room decision. So, like every other vote I exercise in this place, this is a conscience vote for me, one that is especially significant because of the competing arguments and principles at stake. This bill raises fundamental issues of whether same-sex couples should be afforded the same rights as heterosexual couples. It of necessity raises questions about the way homosexuals are treated in our society, and we have seen the changes to our laws at state and federal levels since the early 1970s.
In 1976, I was a first year law student at the University of Adelaide. To this day, I remember well how a number of my lecturers were still grieving and campaigning for justice over the death of their fellow lecturer, Dr George Duncan, who died on 10 May 1972. Dr Duncan was a brilliant academic, respected by his peers and students alike. He was walking along the banks of the River Torrens near the university when he was set upon and viciously assaulted by at least three men, and thrown into the river. This occurred late at night. He drowned. Dr Duncan was homosexual at a time when being a homosexual could carry a jail term.
After a subsequent inquiry, it was found that the area where Dr Duncan was set upon was a so-called ‘gay beat’, where other homosexual men would illicitly meet, and the assault was part of the victimisation by those who derided, if not hated, those men by virtue of their sexuality. In the days, weeks and months following Dr Duncan’s death, and after a grossly compromised and botched police investigation, nothing happened to the perpetrators. It was not until many years later that three men were charged with manslaughter, but they were acquitted in 1988. No-one has ever been held accountable for his death. Dr Duncan’s death was a tragic, criminal consequence of discrimination.
As a result of the public outrage and media attention, the Hon. Murray Hill, a Liberal member of the Legislative Council of South Australia, introduced a bill into the South Australian parliament on 26 July 1972. The bill sought to amend the criminal law in South Australia that made homosexuality illegal. That bill, in an amended form, was assented to on 9 November 1972. It was the beginning of legislative moves across the nation to remove discrimination against homosexuals. The most recent significant reforms at a Commonwealth level occurred only a few years ago as a result of the Human Rights and Equal Opportunity Commission’s recommendations that equality of treatment should be extended to same-sex couples.
Those pieces of legislation, which form the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008, effectively recognise same-sex couples in respect of many rights and obligations, including superannuation. In essence, the rights and obligations that heterosexual couples have now also apply to same-sex couples. That significant, landmark legislation was passed with bipartisan support. However, the proponents of same-sex marriage consider the 2008 bills as unfinished business, and for the opponents that was the end of the road for reform.
At its heart, this issue, this debate, revolves around whether the definition of marriage should be confined to heterosexual couples. Those who oppose changing the law say that to legalise same-sex marriage would undermine the traditional definition of marriage, and that it would also affect children. Let us deal fairly with those two arguments.
I find myself substantially in agreement with the considered speech that the member for Wentworth, the Hon. Malcolm Turnbull, recently gave at the Southern Cross University on the Gold Coast in honour of former High Court Justice Michael Kirby. Like Mr Turnbull, I cannot see how allowing a same-sex couple to marry would somehow affect the sanctity and strength of a marriage between a heterosexual couple. As for children, as Mr Turnbull pointed out, unfortunately, some biological parents are neither loving nor wise. What is important is that a child is brought up in a safe and loving environment. The reality is that this bill does not change the right of same-sex couples to raise children. That was in part dealt with at a federal level several years ago, with bipartisan support. Nor does this bill change state laws about adoption or IVF. But, this bill would give recognition to the inherent commitment that marriage brings with it.
It was my preference, until I considered the issues in this debate, to legislate immediately for civil unions for same-sex couples as, in a sense, a transitional measure before legislating for same-sex marriage. But I can see the argument that, while that measure would be a further reform to reduce discrimination, it would not remove it. In the event this bill does not pass, I would urge the senators and members who oppose same-sex marriage to consider supporting a new bill that would at least allow civil unions.
To date, 11 other countries have legalised same-sex marriage: Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden. This is proof that our traditions are continuing to evolve. A thousand, a hundred, even 30 years ago, marriage did not mean what it does today. This evolution is important. Our traditions are valued because they are still relevant, because they still mean something to us today. But this bill will not in fact change the tradition of marriage within our churches. Ministers of religion will be free to continue to abide by their beliefs on their definition of marriage.
This debate has seen an intense degree of lobbying by various churches—as they are entitled to do in our democracy. I regard the right of a person to hold their religious beliefs as fundamental in a free society. But beyond religion and religious beliefs, I also believe in the law. And I believe our laws should apply equally to all. Aristotle said: ‘The law is reason, free from passion.’ This is a debate that raises passions more than almost every other issue. But if we remove the passion from this debate, we are looking at a simple fact: this bill rectifies discrimination in our law. As elected representatives and law makers, we have a duty to make the best laws we possibly can. And as to a law that excludes people from such a significant cultural institution just because of who they are—well, it is time that changed.
Much of this debate has focused on apparent so-called conservative values, such as marriage and the family unit, although I think it is unfair to suggest those values only belong to conservatives in some political or partisan sense. I am a strong supporter of these principles, but I believe they are reasons for, not against, marriage equality. British Conservative Prime Minister David Cameron said, on this very issue:
Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other.
So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.
There are so many problems facing our society today. Anything that encourages people to commit to each other ultimately can only be a good thing. That is why I support this bill.