Senator BURSTON (New South Wales) (10:50): I rise to speak on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. The Commonwealth of Australia came into existence on 1 January 1901 when Sir John Downer declared:
The Commonwealth of Australia will be, from its first stage, a Christian Commonwealth.
Like Downer, many other leading writers of the Constitution had strong views on the importance of Christianity to the Australian Commonwealth. For instance, Sir Henry Parkes, known as the father of Australia’s Federation, believed that Christianity comprised an essential part of Australia’s common law. In a column published in The Sydney Morning Herald on 26 August 1885, Sir Henry Parkes stated:
We are pre-eminently a Christian people—as our laws, our whole system of jurisprudence, our Constitution … are based upon and interwoven with our Christian belief.
Similar views were found among drafters of the Constitution bill in 1897. Among those was Edmond Barton, as well as leading federalist and statesman, Alfred Deakin. All of these statements are far from just rhetoric. Indeed, the Christian belief of the Australian framers made its way directly into the preamble of the Australian Constitution. When has it ever been justified under international law, or any other law for that matter, to permit legal disrespect for that which is embraced as being sacred to a considerable proportion of the population? It gives us understanding and conveys the stories of our evolution as a nation, our spirit, our resourcefulness and our unique living landscapes. It is an inheritance that helps define our future and who we are as a nation.
Our Australian cultural heritage is the legacy of physical artefacts and intangible attributes of a society that were inherited from past generations, maintained in the present and bestowed for the benefit of future generations. Safeguarding our intangible heritage includes the protection of our cultural identities—in this regard, the cultural identity of humanity. It is essential that we understand that intangible heritage comprises of, but is not limited to, traditional commemorations, customs, ways of life and beliefs. Heterosexual marriage shapes our cultural heritage, particularly as we see and experience it in the Christian tradition of Australia.
In Australia, heritage law exists at the national level and at each of the state and territory levels. Generally, there are separate laws governing Aboriginal cultural heritage and historical heritage. State laws also allow heritage to be protected through local government regulation such as planning schemes. In New South Wales, a legislative goal is to conserve the state’s cultural heritage and promote public awareness of places, objects and features of significance to the state’s Aboriginal peoples through the National Parks and Wildlife Act of 1974. The Heritage Act of 1977 in New South Wales also provides for the conservation of environmental heritage items. The principles underlying the acts’ main objectives revolve around the recognition, protection and conservation of Aboriginal cultural heritage, in order to protect it from damage and desecration in Australia, which is particularly significant to Aboriginal people in accordance with Aboriginal traditions. The critical expression in this passage is ‘to desecrate’, which means to disregard a sacred place or treat a thing with disrespect.
To the Christians, same-sex marriage epitomises the desecration of a sacred right and, in many denominations, a sacrament. Marriage is a sacrament which is an outward symbol of fulfilling God’s purpose for humanity: to form the building block of society and the family and to reproduce the species. It is also a symbol of the nature of Christ’s relationship with his church—a sacred union where a man and a woman become one in the physical consummation of marriage. Why then do our parliaments pass one set of laws protecting intangible cultural heritage of one part of our society and then pass another law which disrespects the cultural beliefs and practices of many others across our nation?
Australia’s political and legal systems owe so much to Christianity and it is evident the foundations of the Australian nation and its laws have discernible Christian philosophical roots. Most of the same-sex marriage debate occurs because there are two competing understandings of marriage fighting for dominance in our society—the conjugal view and the revisionist view. These two views of marriage have dramatically different implications for what marriage policy should look like. The view of marriage that informs policy development can have a dramatic impact on the legal and social norms surrounding families and children. Three months ago, when the postal vote process was announced, an Australian Marriage Forum spokesman stated that ‘no public vote, no parliament, no court have the authority to repeal nature and change the meaning of marriage’. Marriage is based upon an unchangeable truth that only man and woman can create new life; only man and woman can give a child a mother and a father, a biological identity and ancestry. No other relationship outside of a heterosexual relationship should be legislated as marriage, because marriage is divine and not merely a human institution.
The demand to redefine marriage assumes that marriage is a matter of definition but this is not so since marriage arises out of a description of a natural order—that is, the facts of human biology and evolution. If human beings were naturally inclined to form homosexual unions then, over time, they would have become extinct. The survival of the human race and hence of the state depends on men and women having children and forming families and not homosexual unions. Water is H2O and not CH3CH2OH, which is ethanol. They are both liquids. We cannot redefine CH3CH2OH as water, since it has a different structure. A union of female and male has a different structure from a homosexual union. The accepted meaning in the Oxford dictionary of the term ‘marriage’ is ‘the legal union of a man and a woman in order to live together and often to have children’. This meaning reflects the historical, cultural and religious understanding of the concept of marriage which confines the relationship to persons of the opposite sex and its associated concern for the protection of children.
Australia has an express provision in its Constitution granting federal parliament power to introduce legislation on the topic of marriage and correlating issues. In light of such provision, an amendment to the federal Marriage Act was enacted in 2004 which defines marriage as a union between one man and one woman to the exclusion of all others. The High Court has repeatedly affirmed that the connotation or meaning of a given word must remain fixed as it was established at the time the law was originally enacted. Under orthodox rules of Australian legal interpretation, the meaning to be given to a term is that which it had at the date of the Constitution—1900. Traditionally speaking, the courts have adopted a method that concentrates primarily on the essential meaning the word had at the date when the law was enacted. John Quick and Robert Garran commented that the intention of the Australian framers was to prevent the federal parliament from expanding its limited and specified powers by simply changing the meaning of any word in the Constitution. At the time of the constitutional enactment, the word ‘marriage’ meant a union between a man and a woman. They say:
… this would almost certainly have been regarded as an essential part of the connotation, and not merely the denotation, of the word
Indeed, Quick and Garran provide the following meaning to the institution:
Marriage is a relationship originating in contract, but it is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations, and responsibilities which are determined and annexed to it by law independent of contract.
According to the law of England, a marriage is a union between a man and a woman on the same basis as that on which the institution is recognised throughout Christendom and its essence is that it is a voluntary union, it is for life, it is between one man and one woman and it is to the exclusion of all others. There are many Australians who have sought to retain the definition of traditional marriage as it has been understood for centuries and continue to view marriage as a special union between a man and a woman which allows for the creation and nurture of children. A change in civil law does not change the understanding of the nature of marriage as it is understood in the Christian tradition.
For the LGBTI activists, the same-sex marriage campaign has never been about marriage; it has always been about power—the legal power that comes when same-sex and transgender marriage is enshrined in law. The power that emanates from this can be used a weapon for two specific purposes—namely, to control the education of our children and, secondly, to silence any dissenters. There is absolutely no justification for homosexual marriage in any human rights instrument. It is a legal fancy designed by the decadent West, with no foundation in nature or human culture. The millions of Australians who voted no and who are aware of the consequences of redefining marriage will be vigilant to any attempts by radicals who would impose their views of marriage and sexuality on our children and faith communities.
While we continue to respect the dignity of LGBTI Australians, we must recognise and respect the concerns of more than 4.8 million Australians who oppose a change to the definition of marriage, by putting in place strong conscience and religious freedom protections. These protections must ensure that Australians can continue to express their view on marriage, that faith based schools can continue to teach the traditional understanding of marriage and that organisations can continue to operate in a manner that is consistent with those values.
The expansion of legal rights and protections afforded to same-sex couples in Australia is well developed at both federal and state levels, with the Civil Partnerships Act 2008 and the New South Wales Relationships Register. Legislation now exists in four states and the Australian Capital Territory that provides for the legal recognition of relationships that may include same-sex unions. At the federal level, in 2008 and 2009 there was a wide-ranging suite of reforms to provide equal entitlements and responsibilities for same-sex couples in areas such as social security, veterans entitlements, employment, taxation, superannuation, immigration and workers compensation.
However, despite millions of Australians receiving their postal votes in the mail, there were many who did not receive their forms and so were deprived of their right to participate in this survey. I was one of those deprived Australians, robbed and denied the opportunity to express my democratic right to participate in this survey. I’ll further add that my vote would have been no.
The seven highest ‘no’ votes in New South Wales were all in Western Sydney: 74 per cent in Blaxland, 70 per cent in Watson, 65 per cent in McMahon, 64 per cent in Werriwa, 64 per cent in Fowler, 62 per cent in Parramatta and 59 per cent in Chifley.
It is evident that this government cannot extend the ambit of its own legislative powers by purporting to give marriage a wider meaning than that which the word bears in its constitutional context. Nor can the parliament manufacture legislative powers by the device of deeming something that is not marriage to be marriage, or by constructing a superficial connection between the operation of a law and a marriage which examination discloses to be contrived and illusory.
Perusal of some High Court dicta indicates that the constitutional meaning of ‘marriage’ in section 51(xxi) is confined to the definition found in Hyde v Hyde and Woodmansee. Hyde v Hyde is a landmark case in the English Court of Probate and Divorce. The case was heard on 20 March 1866, before Lord Penzance, and established the common-law definition of marriage. Lord Penzance found that institutions in foreign countries, including marriage, cannot be considered as valid under English law unless they resemble the equivalent English institution. With respect to marriage, English law could therefore not recognise either polygamy or concubines as marriage. Similarly, he found that cultural traditions of which the court had no knowledge could not form the basis for a court decision. The court dismissed John Hyde’s case. The case established the common-law definition of marriage. Lord Penzance pronounced:
I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.
To this end, High Court judges, both past and present, have expressed their personal opinions on the matter. Justice Gerard Brennan, 10th Chief Justice of Australia, for example, relied on the history of the court to communicate that it is:
… beyond the powers of the Commonwealth Parliament to legislate for any other form of marriage besides that encompassed by its traditional definition.
Chamber Senate on 28/11/2017 Item BILLS – Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – Second Reading Speaker: Burston, Sen Brian