New civil union laws allowing same sex couples to be ‘officially recognised’ are expected to become law in the Australian Capital Territory (ACT) very soon. So, it seems, the tide may be turning on state recognition of same sex relationships. Or is it?
Resistance to civil unions and gay marriage - most notably from the Federal Government - threatens to overturn the new legislation before it gets on its feet.
These days, a same-sex couple walking hand-in-hand down the street barely raises an eyebrow. But it’s a different story if that couple is walking down the aisle together.
Insight looks at why some gay people want to formalise their relationship - is it the recognition and public acceptance of their partnership that matters? Or is it because of hurdles that arise when everyday forms and documents simply don’t recognise you as a family - things like the Medicare Safety Net, taxation benefits and superannuation death benefits.
Is marriage a tradition that should be exclusively for a man and woman? Or should it keep in step with social change? Even politicians from the same party can’t agree.
And what happens when children are involved? Are kids with two mums or two dads worse off than those who grow up in more traditional home settings? Should the laws be changed so that the non-biological parent in a same-sex relationship can be legally identified as an equal parent?
Insight brings together politicians who are at loggerheads on the issue, representatives of religious groups, and differing voices from the heterosexual and gay and lesbian community.
Transcript
JENNY BROCKIE: Tonight the arguments for and against same-sex marriage. But first Skye Docherty with the story of one couple who were determined to tie the knot, despite the law.
THE JASON AND ADRIAN STORY:
REPORTER: Skye Docherty
Jason and Adrian committed to each over in a ceremony in Melbourne six years ago.
JASON McCHEYNE: We had about 80 people there and our mums walked us into the ceremony, my dad was there as well, our friends gave speeches and blessings during the ceremony and honestly there was not a dry eye in the place for the whole ceremony. It was the most emotional, special day that Adrian and I had ever had.
I basically had no relationships with anyone until I met Adrian. And when we met, fell in love with him head over heels. And we... It was the right thing to do. And it was important that we had our family and friends come together and celebrate what we had.
But what the couple refer to as their marriage is not recognised in Australia.
CELEBRANT: Together we will be a part of a gentle revolution.
JASON McCHEYNE: As a Christian minister originally, ceremonies are important to me and I really enjoy it and always wanted to get married or always wanted to do that. I knew since I was a little boy that I wasn't attracted to women. No-one, including us, had been to a same-sex wedding at that point, that was in the year 2000, and it overwhelmed all of us. And it was just a really happy, joyous occasion that gives you a lot of strength.
The following year Canada passed a bill which allowed same-sex couples to marry.
ADRIAN TUAZON: For the first time we thought, "Oh, you know, wow, we can actually do this," because in Canada you don't have to be a permanent resident to get married there. And something that added to our wedding day was to have that legal aspect.
JASON McCHEYNE: It was like let's go and do this because I want to at least be recognised legally as an entity somewhere.
JOURNALIST: Legislation to redefine marriage was rushed into Federal Parliament.
But soon after Jason and Adrian's Canadian wedding, John Howard amended the legal definition of marriage. It was to be exclusive to unions between men and women.
ADRIAN TUAZON: The Government says that we, same-sex marriage or gay people, will break down the institution of marriage. We're not breaking it down, we're actually embracing it and, you can say, redefining it, but it's still marriage, you know.
JASON McCHEYNE: I'm a marriage celebrant, so I marry 50, 60 couples a year - straight ones - and another 10 or 15 same-sex ones. And what they experience and what they enjoy and what it does for their relationship and their families is really important. That's something that I think I deserve to have and any other same-sex-attracted young person or older person deserves to have.
ADRIAN TUAZON: Marriage means family. And I think, you know, Jason is my family, Jason's family is my family. And, you know, a lot of people will say, you know, I don't need to get married for my relationship, to be recognised - I'm saying... for some gay couples say that - but I think it's bigger, bigger than that.
Just 10 weeks ago Jason and Adrian went to the United States for the birth of their son, Reuben. After eight years together they are overwhelmed to finally be a complete family with the help of a surrogate mother.
ADRIAN TUAZON: It's been such a long journey, probably four, five years. At the time it seemed like an impossibility. Yeah, so we talked about it because it's been a huge emotional and financial sort of adventure, I guess, yeah. Yeah, we've always wanted children.
JENNY BROCKIE: Well, Jason and Adrian, welcome. And welcome Reuben too, who's sleeping very soundly there. Before we explore the issue of marriage, I'd like to just ask you how you came to have Reuben. How did that come about?
JASON McCHEYNE: Well, we originally wanted to adopt but after applying to go to the information evening to adopt here in Australia internationally they called us and said, "No, don't bother coming because you won't be allowed to adopt." So we had to look at other options and so we sought out surrogacy.
We heard about the United States where it's very common and we used an organisation over there that matches you with potential surrogates and we were matched 2.5 years ago. And it's all aboveboard and above reproach legally and ethically and psychologically and culturally. And we started the process. And then after two years and a month from the day we signed the first papers, Reuben actually was born on February 16 this year.
JENNY BROCKIE: So are both your names on the birth certificate? Are you both legally entitled to be Reuben's parents?
ADRIAN TUAZON: Yes, yes, both our names.
JENNY BROCKIE: In Australia as well as in Canada?
JASON McCHEYNE: Yes, anywhere it says "father", it's got "parent" and one of our names, and where it says "mother", it says "parent" and the other one of our names. There's no record of our surrogate anywhere. Of course we have a relationship with her and we love her. And when we naturalised him with DIMA, about a week after we come home, it says "the natural mother", and we filled in the person's name that was under "mother". And they went away for about 15 minutes and came back and he was naturalised and is an Australian citizen now.
JENNY BROCKIE: So was part of the reason you wanted to get married because you wanted a child?
JASON McCHEYNE: Yes, just like straight couples. I marry 50 of them a year and they usually come to me - they just got pregnant, about to get pregnant or trying to get pregnant and it's the natural step. You just want to say, "Yes, we're fair dinkum about who we are in every sense "and he deserves to have two fathers that are committed to each other as much as you can be in this world."
JENNY BROCKIE: Gary Humphries, you're a Federal Liberal Senator. Here are two people, they love one another, they are committed to one another and to raising a family, why shouldn't they be able to get married in Australia?
GARY HUMPHRIES, ACT LIBERAL SENATOR: Well, I think there are two reasons, Jenny. First of all I think the concept of gay marriage isn't reflective of the expectations of most Australians. As a politician it's my job to gauge what people think and to get a sense of what the community mood and expectation is and I think most Australians think of marriage as a union between a man and a woman.
I think the other thing, the other reason why I wouldn't support gay marriage is because I don't yet know exactly how children would be dealt with in that arrangement. As Adrian and Jason just said, marriage means family, family means children, but no-one's yet spelt out exactly where people go in those circumstances with children.
It's uncharted waters and until someone spells out what it is that a marriage between two people of the same sex would mean for children, I think we're entitled to say, "Hold up, let's see what this means before we go down that path."
JENNY BROCKIE: Are Jason and Adrian and Reuben a family in your view?
GARY HUMPHRIES: Obviously they have all the attributes of a family. They're not, perhaps, legally a family. But the question is whether or not the law should recognise that arrangement and then say to everybody, "Well, yes, go down that path, even though we don't quite know where it leads."
JENNY BROCKIE: Yes, Chris, you'd like to say something.
CHRIS MENY, CATHOLIC MARRIAGE AND FAMILY OFFICE: I think that the social evidence is very much out on whether having same-sex relationships is a way to go with respect to the care of children. I think most of the studies that have been done, and there have been several dozen, have been flawed.
JASON McCHEYNE: There's actually no verified studies.
CHRIS MENY: And the studies have indicated that there is something which is yet to be proven as to whether same-sex couples can really raise children.
JENNY BROCKIE: What studies are those, Chris?
CHRIS MENY: They're about 14 studies that were reviewed by an American team and another dozen studies that were reviewed by European team.
JENNY BROCKIE: And what are you saying, the jury's out on whether they're good parents?
CHRIS MENY: Well, to suggest that a same-sex relationship is going to provide equal or better situation for the raising of children, you can't state that from the evidence.
JENNY BROCKIE: Maria, you're Adrian's mum. What do you think about this debate about same-sex marriage?
MARIA SOLIN, ADRIAN’S MOTHER: Well, the issue really is why is it a question, why is society questioning same-sex marriages or even having children and having a family, why is it a question? Is it because... Really, the point is you're worried about what people are saying, the opinions of others. I mean, if that is how... If that is the society where Reuben is going to grow up, it's really pitiful for this kind of society where the opinions of those people are like that. I mean, you know...
JENNY BROCKIE: So you want them to be accepted as a married couple in Australia?
MARIA SOLIN: Yes, definitely.
JENNY BROCKIE: Angela.
ANGELA CONWAY, AUSTRALIAN FAMILY ASSOCIATION: I just wanted to say that, you know, whilst we acknowledge that these situations are complex and that people have the best will in the world, we know now that there's a mounting level of social science evidence about what children need to have optimal conditions for flourishing. And we know that children need a marriage between their biological mother and their father, to provide a stable environment for them in which to grow up.
JENNY BROCKIE: You're therefore saying you don't believe there should be same-sex unions sanctioned in any shape or form?
ANGELA CONWAY: No. Because I'm saying we must go back to what's best for the children. And children always need that connection, that filial connection between their biological mother, their biological father wherever possible.
NICHOLAS HENDERSON: Look, I just wanted to pick up on one comment that you made. You said that children are raised best within stable environments, with stable family relationships. You know, obviously, you know, we've got couples and we've got families here who do have a very stable relationship. I mean, you know, the fact that, you know, they've been together for so long, they've had their relationship recognised, gone overseas, you know, obviously it's taken, you know, cost, you know, money. They've got an extended family that's supporting them.
To me, that would seem that they've got a very stable environment. It's not... I mean, we've got single... You mentioned single parent families. We've got, you know, a lot of different types of family structures now - broken down, totally different forms. Here is a stable, parental familial environment and they are providing Reuben with the best environment that he can have.
JENNY BROCKIE: Gary.
GARY HUMPHRIES: Look, I'm sure lots of people have very strong relationships that are atypical or go against the societal grain. The question here is whether or not we should engineer an outcome where we create a pathway where people are- like Jason and Adrian - are pioneers but where others have not yet gone and where we don't yet know what the consequences of these steps are.
JENNY BROCKIE: Well, somebody has to be a pioneer at some point.
GARY HUMPHRIES: We need to go as far as the community expects us to go. I mean, and law-makers shouldn't run ahead of what community expectations might be. It would be great to take these arrangements and say, "Well, they're the new wave, let's legislate for them," but we don't yet know that that's what the community is going to expect.
JENNY BROCKIE: Well, Jon Stanhope, that's exactly what you've just done in the ACT, isn't it? You have legislated for same-sex unions. Are you running ahead of the community?
JON STANHOPE, ACT CHIEF MINISTER: Not at all. I campaigned at my last election with a portfolio that included a commitment to investigate and - subject to community consultation - initiate and carry through with the legislating of a civil union regime. And we've now passed, in this past week, the ACT Civil Union Act. So we've taken a step essentially in recognition to our commitment of human rights, a recognition which I believe my community in Canberra would applaud and support - that every human being has a right to participate within society, has a right to be respected, has a right to dignity. And for same-sex couples...
And there is a reality now. We can't pretend that there aren't a multiplicity of relationships and forms of relationships - there simply are, this is the fact and let's not put our head in the sand and pretend otherwise. And each of us, as participants in society, has a right to equality. I think it's a fundamental human right. It is about not discriminating, it's about ensuring that every member of our society has equality. So what we've legislated in our Civil Unions Act is for a regime where same-sex couples are afforded, through the capacity to participate in a civil union, functional equality with married people.
JENNY BROCKIE: And what does that mean in practical terms? Because a lot of the things that same-sex couples complain about are actually subject to federal law.
JON STANHOPE: Well, the process that we have followed in the ACT is that over the last four years we have removed from every single piece of ACT legislation every piece of legislated discrimination against gays and lesbians.
We've now essentially completed the task of removing legislative discriminational barriers as a response to the innate human rights of every member of our society.
JENNY BROCKIE: But you've had trouble with the Federal Government over this legislation, haven't you? You had to amend it because they objected to the fact, for example, that you wanted to use marriage celebrants, federal marriage celebrants? How much have you had to water the legislation down?
JON STANHOPE: Well, we have responded to concern expressed to us by the Federal Attorney-General, Philip Ruddock, and the Prime Minister. They've expressed a concern that we were equating civil union with marriage.
It's a suggestion which we reject but we're concerned to ensure that our legislation continues, that it's maintained. As a Territory, the Commonwealth has...
JENNY BROCKIE: But it is like marriage, isn't it?
JON STANHOPE: There is a significant difference between civil union and marriage. The Commonwealth has legislated and sought to cover the field - they've, specifically through the amendment which was passed two years ago, provided that a marriage is a union between a man and a woman.
There are significant differences between a marriage and a civil union. A civil union contemplates a union between same-sex couples. That's not possible under the Marriage Act. It's been specifically excluded as a possibility. A civil union is not a marriage.
JENNY BROCKIE: Warren Entsch, you're also a Liberal MP. Do you think it's fair that the Federal Government not legally recognise same-sex relationships? Because it's come through very clearly from the Prime Minister and the Attorney-General that there is a reluctance to recognise in law same-sex relationships?
WARREN ENTSCH, FEDERAL LIBERAL MP: Absolutely. And it's an area that I have been very strongly advocating and I certainly welcome the legislation that has been put through recently by the ACT and I hope that many of the other States follow and Territories follow closely behind the ACT in what they've done.
And I think that legal discrimination on individuals that have... ..that have made a commitment to each other, I think is totally inappropriate. And when you go through the federal legislation there is a whole range - from Veterans Affairs through to Medicare, through to social security, there's a whole... superannuation, taxation - there's a whole range of areas there where there is clearly discrimination.
And I believe that we need to look at changing that legislation, we do need a mechanism to recognise a commitment, if you like, or a union between two people and I think what the ACT has done has given that mechanism to be able to recognise. And I think it's important that we now move down the track of removing those areas of discrimination.
JENNY BROCKIE: So you want to go much further? You want to actually introduce this into Federal Parliament as a private member's bill?
WARREN ENTSCH: Absolutely.
JENNY BROCKIE: You're planning to do that?
WARREN ENTSCH:
Absolutely.
JENNY BROCKIE: When are you planning to do that?
WARREN ENTSCH: Well, we're in the process of preparation now. And I'm just preparing a letter which I'm sending out to many of my colleagues, to all of my colleagues actually.
What brought my attention to this, a couple of years ago, was a constituent of mine in Cairns that was posted from Cairns, relocated, and he was able to get the ADF or the navy to shift his personal possessions, his dog and his budgerigar but they refused to shift his partner of 15 years on the basis he was same-sex. That really enraged me and I felt we needed to deal with that.
JENNY BROCKIE: Gentleman up the back, yes?
MAN: I think we can eliminate various forms of discrimination, like on superannuation, etc, etc, but the basic issue is definition of marriage that's heterosexual. When the Government made what was described as a change, they were simply making explicit what was already implicit within the Constitution.
The basic issue is that this involves the interests of a child who is not consenting. It's already been described as very much a package deal, that marriage involves family, and we need to really look at that. And there is a lot of empirical evidence, and certainly a lot of empirical evidence, about the lack of stability, long-term stability of gay relationships.
JENNY BROCKIE: OK, comment over here, yes?
IAN LAWRENCE: I just think that some of these people have lost touch with reality. It basically goes back to love, it's all about love.
JENNY BROCKIE: Peter?
PETER POWER: Ian and myself, we've been together 28 years.
IAN LAWRENCE: Have you had a love in your life? Do you know what it's all about?
JOHN HEARD: I don't think we're saying anything against specific examples of love. I don't think anybody would say that a committed relationship of any kind, if there's that kind of give and take between them is a bad thing. We're talking, though, about encouraging something at the highest levels and about, you know, either protecting the family or opening it up to whatever else happens.
And I'd like to challenge, at the beginning, this idea that gay people actually want to get married or that they're in relationships.
ADRIAN TUAZON: What is there to fear from our family?
JOHN HEARD: The research shows the private lives...
JENNY BROCKIE: Can we just let John finish for a sec?
JOHN HEARD: The Private Life Survey, which was released about two months ago by La Trobe University - which was the largest survey of its kind of same-sex attracted people in Australia - demonstrated that the majority of gay men aren't in any kind of relationship at all, not only that, that the majority of gay men did not want to formalise their relationships and indeed the majority of lesbians were in the same situation.
IAN LAWRENCE: Absolute rubbish.
JOHN HEARD: Who wants gay marriage? Where is this coming from?
JENNY BROCKIE: John, I'm interested in the position you're taking on this. Because you're gay, yes?
JOHN HEARD: I am, absolutely.
JENNY BROCKIE: And you're opposed to gay marriage?
JOHN HEARD: I certainly am.
JENNY BROCKIE: Is that because you're Catholic?
JOHN HEARD: No, it's because I'm a thinker. I can look at the arguments and see that this idea...
MAN: You don't have to get married.
JOHN HEARD:..no, but this idea that we should legislate each and every person's individual desires, even if it's the most ridiculous minority of a minority, at the point where it disrupts marriage, which is the central institution of civilisation.
IAN LAWRENCE: No, you're wrong.
JENNY BROCKIE: Comment over here.
JOHN HEARD: The Australian people agree with me.
JENNY BROCKIE: Yes, Ian and Peter?
PETER POWER: As I was saying before - before I was rudely interrupted - we've been together 28 years, we've got a very strong, loving relationship. We've registered our relationship with the Tasmanian Deed of Relationship Legislation.
IAN LAWRENCE: Which has been in 2.5 years now and the sky hasn't fallen in.
PETER POWER: It's been embraced by the Tasmanian Government, it's been embraced by...
IAN LAWRENCE: Our community.
PETER POWER: ...our community. We live in a community of 500 people.
JOHN HEARD: You're not talking about gay marriage or marriage.
IAN LAWRENCE: You're blurring the issue, you're blurring the issue.
JOHN HEARD: No, you're blurring the issue. That is not marriage. I'm not specifically arguing against a relationship register. I'm arguing against gay marriage.
JENNY BROCKIE: Just hang on a moment. I think Reuben's had enough actually. We might just get... we might just get... Can we organise...
JASON McCHEYNE: Yes, the nanny's outside.
ANGELA CONWAY: I think anybody with goodwill has a certain amount of respect and regard for the fact that two people have that level of commitment, as you have explained tonight. Everybody here has goodwill and respect for that. But I would like to say that we're not just talking about people and their commitment. And I would say to you that your high level of commitment will stand the child that you have there, your child in good stead for the future, but...
JASON McCHEYNE: We know that.
ANGELA CONWAY: But...but you are experimenting with something here.
JENNY BROCKIE: I think you've made your point. Alastair Nicholson, can I bring you in at this point? You're the former chief judge of the Family Court. You've been listening to this discussion, what do you think? Should same-sex couples be able to marry and have children?
ALASTAIR NICHOLSON, FORMER FAMILY COURT CHIEF JUSTICE: Undoubtedly, in my view, they should. In fact, the reality is that they do, it's simply that there's no formal recognition of it in the law, which I think is an act of cruelty, both to them and to the children because it seems to me that people are forgetting the children in all this equation.
Incidentally, there's - so far as I'm concerned - not a shred of credible evidence that children brought up in a gay relationship have any significant disadvantage in relation to other children. And certainly if it's a loving relationship - as many of these ones we've heard discussed tonight is - then it's highly likely that the children will be much better off than in a heterosexual relationship which is not a good one.
JENNY BROCKIE: But don't you accept that marriage traditionally is an institution that's perceived as a union between a man and a woman? I mean, that is a traditional interpretation of marriage?
ALASTAIR NICHOLSON: I'd accept that but I'd simply say that that is changing and it seems to me that to freeze a concept in time is a mistake because one of the things about the Marriage Act, if you look at it, is it's not recognising a religious marriage, it's...
There's no element of Christian marriage in the Marriage Act at all. It's simply a piece of legislation which permits marriages to take place. After all, lots of people get married that are not Christians. Lots of people get married in registry offices, who have no religion at all and it seems to me that seems to be forgotten also.
And I just don't see why same-sex couples shouldn't be entitled to the same freedom and rights as other people, and I don't see why their children should be discriminated against either. I think that's very important. And what we are doing is discriminating against those children. For example, if anything happens to one of the partners who's not the biological parent, then you've got a situation where there's no bond at all... ..there's no legal right at all in relation to that person who's brought the child up, and the child could well be, in effect, separated from the only figure that he or she relies on simply by the operation of the law. I think that's just wrong.
JENNY BROCKIE: Chris Meny, isn't that wrong - if someone raises a child as a parent, that legally they have no rights to that child if something goes wrong with the relationship?
CHRIS MENY: Well, I think that first of all we've got to be appreciative of the fact that natural marriage has always been at the basis of societies and that we have to recognise that. It's something which is supposed to be open and fruitful and life-giving and permanent and the relationships that we're talking about tonight, in one way or the other, doesn't... ..they don't reflect all those characteristics.
And it's really important for us to understand exactly what marriage is. It's more than something between two individuals. It is something which is a social estate, which impacts on society, which has far broader ramifications.
JENNY BROCKIE: Tricia.
TRICIA SZIROM: Yes, I am really concerned with some of the things I'm hearing - research that's been bandied around that just doesn't have any factual base. And the issue for me is about the quality of relationships. I don't particularly want to be married, I was married heterosexually at one point and that wasn't terribly satisfactory. And then I became a lesbian and decided I was going to be in a relationship with somebody. I wanted children and had had miscarriages, she agreed to carry our daughter.
JENNY BROCKIE: Who's sitting beside you?
TRICIA SZIROM: Who's sitting beside me and now 16 and I'll let her speak for herself. The issue for me in going into that relationship and having a child was that I had absolutely no legal rights. I could not be the guardian. I could not...I could not even adopt our daughter. And so we formed... we developed some legal agreements between ourselves and the donor, who we know and who has been in Pia's life at various points, and between each other. And because we didn't, at that time, trust the Family Court, we formed a tribunal of people who would speak on Pia's behalf if anything happened to our relationship, and ensure that we were able to parent her well if we didn't do well with each other. So that put in a different context. But the school still ring Jenny, the school don't ring me necessarily, although they've been particularly good.
JENNY BROCKIE: Well, I'd like to pursue this a little bit because we have a taped story here that explores some of these issues a little bit more. And it is one area where same-sex couples just don't have the same rights as heterosexuals - around the question of children. Skye Docherty has visited a couple where one partner clearly has a lot more rights than the other.
THE DEB AND LOU STORY:
REPORTER: Skye Docherty
LOU: I've been in both heterosexual relationships as well as same-sex relationships but I've been in same-sex relationships now since I was 17 and I'm 35 today.
I always thought I'd have children. Ultimately I felt like I had a lot to give as a mother and wanted to not do that by myself, wanted to wait until I was in a long-term relationship.
Deb and I first got together New Year's Eve. We had met in Canberra and I think it was about maybe two years later, I was living in Wollongong, and we've been together now for 12 years.
DEB: Lou was the person we'd decided we'd try first so she's from a bigger family so she's had a lot of, like, a lot more practical experience with children.
LOU: We decided to go with a non-known donor - and that was after a lot of thought, a lot of discussion, what we would...what we thought would be best for our family unit.
DEB: We didn't specifically look into the issue of whether both of us could be recorded on the birth certificate, but when we filled out the forms we were looking at the form trying to find a way to make the form fit our family. So we tried...I think we ended up crossing out, you know, the word "father" and writing "parent 2" and putting my name but, yeah, that wasn't accepted.
LOU: It really, really has had a huge impact on Deb in the labour ward. We asked for her name to be... You know how they put the baby's name and the parents' on the baby's crib? She wasn't put on that. We can't put her on the birth certificate. She's his mum just like I'm his mum. He doesn't notice that there's, you know, anything different about us. He's got two mums that love him and play with him.
DEB: Yep. I'm not recorded anywhere as Riley's parent, aside from on the Mother's Day cards that I get from him or, you know, yeah, the drawings that he does of our family, but in terms of legal documentation, there would be absolutely no record.
Yeah, it definitely worries me, particularly if something were to happen to the both of them and let's say they both were, you know, in quite a serious medical condition and the consent needed to be given, it's frustrating that even though I would be there, I might not have the power to do that.
LOU: And it really concerns me that if something was to happen to me, legally Deb doesn't automatically get Riley. In fact, my mother would be my next of kin. And I'm not saying that my parents would do that, but... ..or my family actually, but it's a devastating thought to think that this little boy could - potentially, if something happened to me - be ripped out of his home, the State that he lives in, with the mother that loves and adores him. And yeah, I try not to think about it just because it's, you know, I think it's... And I'm not going to cry. But, yeah.
Deb and I chose to have Riley together and that is a part of why we used a non-known donor was because we wanted to do it together and we're his parents. Whether the law says we are or not, we are his parents and to him that's what's important. The law's not important to him.
JENNY BROCKIE: Well, Deb and Lou, you're with us tonight. Welcome to you to too. Deb, you talked about the lack of rights that you have as the non-biological parent of Riley. Have you thought about what would happen if you two split up?
DEB: What I think...what concerns me more and what I think about more often is Riley's rights and I think that's what needs to be paramount in this debate. Children need love and education and warmth, just addressing your earlier point, and to think that heterosexual people have a monopoly on those things is absurd. So I think the rights of the children are what we should be focusing on.
JENNY BROCKIE: Now, could you adopt Riley to get around the law, to have a right?
DEB: Lesbians aren't allowed to adopt in Australia, I believe, so I guess if I pretended to be heterosexual I might be able to adopt my own son. I'm not sure. I haven't looked into it.
JENNY BROCKIE: Gary Humphries?
GARY HUMPHRIES: There are some States where same-sex adoption is possible and some where it's not. In most States you can't adopt in those circumstances.
JENNY BROCKIE: But the Federal Government, in a situation like this, is not recognising this relationship and therefore not making it possible for Deb to have rights over that child. Now, do you think that's fair when you look at a situation like that where you've got two people committed to the raising of a child?
GARY HUMPHRIES: Can I say, Jenny, we're focusing in this debate on a range of couples who've come before us tonight who are obviously very dedicated to each other and to their families. They are pioneers, they are people who are pushing against a social tide, social expectation, social mores.
But if you change the law and you say to everybody, "This is what is now going to be the new social norm," inevitably you create all sorts of different issues which haven't been yet mapped out and laid down for people to consider. For example, in this relationship that Tricia was talking about a moment ago, what would have happened if the daughter that she and her partner had born had disabilities, if Pia had disabilities, and there was a difference of view, they wanted to reject that child, they didn't want to raise the child in those circumstances.
TRICIA SZIROM: We had a legal agreement that covered all of that.
GARY HUMPHRIES: Legal agreements are fine but they don't always cover the situation when a child comes into the world that's not actually wanted.
TRICIA SZIROM: It was actually the best we could do because of attitudes of people like you, because you didn't allow us to have those rights and to be able to work through those issues. We didn't want to be married necessarily, we wanted to have children and we wanted to do it in the best possible way and there's absolutely no question in my mind that if I'd been in a heterosexual relationship, I would have been allowed to have Pia and it would have been recognised and acknowledged.
Because I chose at a point in my life to be with a woman, I wasn't allowed to do that in any way that was positive for her.
JENNY BROCKIE: Tricia, what about Gary's argument, though, that you're going against the social mores and therefore you can't expect the law to move with you?
TRICIA SZIROM: We went against social mores when we gave up selling women as property in marriage, we went against social mores as against slavery. I mean, at some point or other a government needs to set a lead about what is right. And the issue of human rights is absolutely central to this. Governments have to lead at some points.
JENNY BROCKIE: Alastair Nicholson.
ALASTAIR NICHOLSON: Well, I agree with that entirely. I think, in fact, the Government's legislation was shameful, two years ago when it legislated as it did. And it seems to me...
JENNY BROCKIE: That was the legislation that defined marriage as being a relationship between a man and a woman.
ALASTAIR NICHOLSON: Yes, yes, that's right. It's interesting when you look at it that a similar piece of legislation was rejected by the Menzies government many years before, on the basis that it wasn't necessary to go to that level of definition and that the courts could deal with the matter perfectly adequately. Quite obviously that's changed now.
And someone mentioned the Constitution and so on but it's strongly arguable that the Constitution does consider the possibility of same-sex marriage and certainly Justice McHugh in the High Court took that view quite recently.
JENNY BROCKIE: Chris.
CHRIS MENY: I think that if marriage wasn't concerned with sexual intimacy and the raising of children, it wouldn't attract anything like the attention that it does in terms of legislation. States have traditionally brought in legislation and the reason is because marriage is really important for the care and the upbringing of children, for the moulding of the good citizen. And acts which of their very nature aren't procreative, aren't about bringing forth children, aren't marital acts, and that's what the Marriage Act really should be concerned with.
JENNY BROCKIE: We've just had a child brought forth over here, I think. Lou, do you want to say something?
LOU: Yeah, I actually find that highly offensive. And in fact, Deb and I, the way in which we did it, had to really think about how we were going to do it. We weren't just like heterosexual people that think, "Oh, let's go to bed, let's have sex, Oops, I'm pregnant. What are we going to do? Oh, my God, we'll just have to fumble through." We actually have thought about our baby and thought about how we're going to raise him so he has a great self-esteem, so he has a good education.
JENNY BROCKIE: John wants to respond to that.
JOHN HEARD: With all due respect and compassion and the rest of it, and you seem like wonderful people, people seem to be saying that, you know, you're naturally having children and the Government's legislating against you. You chose to have children, even though you knew that the situation was not ideal for the child.
DEB: May I ask you a question now? Let me finish.
JOHN HEARD: You chose to have your child even though you knew that there were all these things that would count against her. How can you say that at that point you have the child's best interests and not your own in the forefront of your mind?
JENNY BROCKIE: Let's hear from the child. We've been talking a lot about children here.
JOHN HEARD: Can we hear from the parents first and then the child? The child didn't make the decision.
JENNY BROCKIE: But the child wears the consequences.
JOHN HEARD: I'm sure she's a wonderful mother.
JENNY BROCKIE: The child wears the consequences of the decision.
MAN: No child makes the decision.
JENNY BROCKIE: Can we hear from a child?
JOHN HEARD: I'm talking about bad choices, not bad parents.
JENNY BROCKIE: We've heard from everybody but the offspring here. Let's hear from Pia.
PIA CAMERON: Well, um...
JENNY BROCKIE: What do you think about what you've heard?
PIA CAMERON: Well, it seems like this conversation seems to be going a bit in circles sometimes. I mean, well... OK, well, you're talking about that I mustn't be a stable person because of my upbringing. I mean, I'm pretty stable, I mean...
JENNY BROCKIE: Was it difficult for you being the child of a same-sex couple?
PIA CAMERON: The only difficult thing for me was being in a relationship which broke apart, and that is way, way more difficult on a child than a relationship of two same-sex people.
JENNY BROCKIE: So did you know your biological father, did you know who your biological father is?
PIA CAMERON: Yes, I know who he is. He comes a couple of times to my school events now and again. I was recently in a performance, he came and saw that. With my achievements, he recognises them and he's very proud of me.
JENNY BROCKIE: Do you still have a relationship with your other mum?
PIA CAMERON: Yeah. She's the best mum in the world and so is Tricia. I mean, the fact that I haven't got a father per se, you know, in the sense that I've been brought up by a man and a woman, has absolutely nothing to do with the person that I would have become, whether... I probably wouldn't have been as open minded.
JENNY BROCKIE: Deb and Lou, can I ask you whether Riley will know who his biological father is?
DEB: We certainly hope that he'll get to know his donor. Yeah, when we chose the donor we were conscious of their age - so that we hoped that that person would still be living - we were conscious of the clinic we chose - we chose an Australian... a clinic that uses Australian...
JENNY BROCKIE: But you don't know that person now?
DEB: No, we don't.
JENNY BROCKIE: So Riley will not know who that sperm donor is unless he chooses to want to know? Or will you be introducing the idea to him? Or do you think it's important?
DEB: The idea's introduced.
LOU: He already knows. We talk about he has a donor, even though he's 2.5, and he...well, he knows. That's what we keep telling him. We're not having secrets. I'm not going to pretend to him that I went out and had a one-night stand, like a lot of heterosexual people may do. But we let him know that he is from a clinic, that he has a donor and that at the age of 18 he can have, hopefully, get the information so if he chooses to, he can go and meet his donor. And we call his donor 'Donor' at the moment and hopefully that will change if that's something Riley wants to change.
JENNY BROCKIE: Angela, a comment from you.
ANGELA CONWAY: And I would say that in any of these situations where you've got children and you're worried about the outcomes if something should happen, our society should make sure that children's significant attachments are respected and not disrupted but we shouldn't be deliberately severing relationships between children and their biological parents.
JENNY BROCKIE: Alastair Nicholson, you've dealt with a myriad of complications in the Family Court. What do you think of this argument?
ALASTAIR NICHOLSON: I don't think very much of it at all, quite frankly. It seems to me that the most sensible thing that's been said tonight was said by the child to whom you asked a question a few moments ago. The important thing for children is loving parents and loving people. It really, I don't think, matters whether the person is a male or a female or two males, two females, providing they are loving parents.
Now, you're going to find that in... You find that in heterosexual families, you find it in same-sex families. If you've got that, you've got a pretty good set-up for that child. And that's why I don't see why we should discriminate against same-sex people for some mythical reason, such as was just quoted, that a child must have a relationship with a biological father.
There are some biological fathers that one would hope they would never have a relationship with because of their behaviour. And that happens in plenty of relationships.
JENNY BROCKIE: Wayne Morgan, I'm interested in talking to you about rights here because we've focused a lot on children tonight but what other rights, basic rights are same-sex couples not entitled to that they would be if they were married, for example?
WAYNE MORGAN, AUSTRALIAN NATIONAL UNIVERSITY: Look, there's a whole range of rights and of course it depends on which jurisdiction we're now talking about because luckily, at the State level, lots of reforms have taken place. But for example, simply like medical decision-making. If your partner is ill and your relationship is not recognised, you may not be able to visit them in hospital, you may not be able to make decisions on their behalf, even though you may have been with them for years.
Just about in every area of family life that you can mention, if reforms have not taken place at the State level, problems are caused for that same-sex family, whether or not it involves children.
If children are there, of course, as we've heard, the problems are compounded tenfold.
JENNY BROCKIE: Gary.
GARY HUMPHRIES: The Federal Government has in fact been changing the law progressively over the last 10 years to reduce the number of cases in which there are differences between the rights of gay and lesbian people and ordinary citizens. That's in fact been the trend of the last 10 years. But the issue again of children is another issue altogether. That's the issue that, I think, will draw the line.
JENNY BROCKIE: So that's the stumbling block for you is the issue of children?
GARY HUMPHRIES: Absolutely. If it was just people who were wanting to exhibit and support their relationship, I'd have no problems with the law recognising that and supporting that, but it goes beyond that to the rights of third parties, namely children, and those rights have not been spelt out by anybody clearly in this debate tonight, or anywhere else that I'm aware of. No-one's yet explained what happens to children in these relationships, what are their rightsWHERE do they go, what happens if the relationships break down.
WAYNE MORGAN: They should be exactly the same as the rights of children in heterosexual relationships.
JENNY BROCKIE: Jason and Adrian, what do you think Reuben's rights should be? And Reuben's been taken out now because he had a little bit of a cry.
ADRIAN TUAZON: It should be exactly like heterosexual families.
JASON McCHEYNE: Parenting is not gender specific and the research does support that. Now, this...
JENNY BROCKIE: But are you saying if you two split up, how would you want that dealt with?
JASON McCHEYNE: Well we are both on the birth certificate so we are both legally his parents as far as we're concerned, as far as the law is concerned.
JENNY BROCKIE: Doesn't mean you wouldn't have a dispute. How would you settle a dispute? Who'd adjudicate a dispute between the two of you?
JASON McCHEYNE: The Family Court would do that and we would trust them with that at the end of the day. But we don't plan on splitting up.
And I'd like to say something. And I appreciate what you've said tonight, and it's sad that it is a pioneering thing in your mind.
JOHN HEARD: We don't want gay marriage.
JASON McCHEYNE: Irrespective of gay marriage, it's not the point.
JOHN HEARD: You may not. But it's something that nobody wants. I'm sure... Just let me speak for a moment. I'm sure the audience does. Can I just say the obvious thing? The young lady, I don't think there's anybody in Australia who would claim that she's, you know, in any way anything other than articulate and wonderful and yet her parents aren't married. How was that, you know, an argument that we have to have gay marriage?
JASON McCHEYNE: It's about creating pathways.
TRICIA SZIROM: It's not about marriage at this point.
JOHN HEARD: It's not about marriage, well, apparently not.
TRICIA SZIROM: I said right through, when I was speaking, that I wasn't concerned about the issue of marriage, I was... Will you stop for a minute, please, because you've been putting me down.
JENNY BROCKIE: Just let her finish, please. John, let her finish.
TRICIA SZIROM: What I am arguing for is that this child has rights.
JOHN HEARD: Absolutely.
TRICIA SZIROM: And they are not being recognised...
JOHN HEARD: Because of your choices.
JENNY BROCKIE: Could you let her just finish.
TRICIA SZIROM: Heterosexual people make choices that aren't necessarily good....
JOHN HEARD: And we don't legislate to encourage them.
TRICIA SZIROM:..that are no necessarily good...
JOHN HEARD: And we don't legislate to encourage them.
JENNY BROCKIE: I'm going to stop you right there because you're not giving other people a chance to speak.
JASON McCHEYNE: It's about creating pathways. Our society has suffered immense cost because there have been suicides, there have been many miserable relationships where gay men have married women, had kids, broken up or had sexual relationships outside of marriage because there has been no cultural pathway for them to express what is a basic need - to be connected to another person, whether you choose marriage or another form of relationship.
JENNY BROCKIE: Colin, you're heading off to get married to your same-sex partner in Canada.
COLIN LOWE: Yes, and have no intention on ever having children. The title of tonight's debate is Gay Marriage and somehow what we've been saying is if you let gays get married, suddenly we're all going to be having children. We've got two goldfish, that's enough. I don't want children but I want my relationship recognised and I want my parents to be able to go through the ceremony that they wanted for me. So for me, it's nothing to do with children. I don't know why marriage has been linked to children. Gay people will have children whether you allow them to get married or not.
JENNY BROCKIE: I think part of the reason is because it's the cutting edge of where the rights come in, because once a gay couple has a child...
JON STANHOPE: Jenny, with respect, the issue of gay marriage or civil union or respecting and recognising relationships of same-sex couples is very separate, actually divorced from the question of the rights of children and the role of children in any relationship, whether it's same-sex or heterosexual.
The issue in relation to children, in any relationship, whether it be a heterosexual relationship or a same-sex relationship is an issue around how adoption laws operate. But that's a completely different issue around why we, as a society, should not extend the respect and the dignity, which we heterosexual couples expect and accept automatically for ourselves, to other people within our community - our brothers and sisters, our neighbours, our uncles and aunts, our parents, perhaps.
That's the issue. The issue is around the fundamental human rights of every Australian to be respected in their relationship. And it's not an issue about pushing against the social tide. We're talking about a minority that has been traditionally discriminated against. And the debate around gay marriage or civil union - and we haven't supported or adopted a gay marriage regime in the ACT because of a constitutional bar that's been imposed by the Commonwealth.
JENNY BROCKIE: You'd like to?
JON STANHOPE: Well, no. That's another debate and there's a separate debate about the way in which we recognise and create functional equality. At the moment we're discriminating. We in Australia discriminate against same-sex couples on the basis of the relationships they can enter into. And the objective question for everyone here to ask and answer tonight is on what basis can I justify through the law discriminating against somebody on the basis of what is essentially as irrelevant as their sexual preference? And that's what we do.
JENNY BROCKIE: Alastair Nicholson, are these civil union laws that the ACT...same-sex union laws that the ACT has just introduced, are they going to address those problems of discrimination, do you think?
ALASTAIR NICHOLSON: Well, they partly address them, quite obviously. There is one issue about adoption, there is an alternative way in which some legal recognition could be given, of course, to the same-sex parents and that would be via the family law system because you could get an order for shared parenting that might help them in that situation, but it's still a discriminatory situation that they're faced with. It seems to me that the ACT's gone in the right direction but it's really been forced into a limited method of dealing with the issue because the Federal Government hasn't dealt with it.
JENNY BROCKIE: Gary Humphries, I'd like to finish with you. Jon Stanhope's laws, the Federal Government has obviously moved to have those laws changed because it wasn't happy that they were getting too close to the idea of marriage. Now, are you going to object to the laws that have just gone through now?
GARY HUMPHRIES: Well, they only were passed so I have to look at them closely but it seems to me that they do address the problem that the Federal Government raised and they're not effectively a de facto form of marriage at the Territory level so I think that they're... ..personally, I think that they're quite acceptable. And whether the law changes at the federal level is very much, in my view, a function of what Australians think.
But at the moment I don't think Australians are ready to say, "Yes, we're in favour of gay marriage and the implications it has for the raising and adopting of children."
JENNY BROCKIE: And Warren Entsch, what's the time frame for your private member's bill, which isn't going to address the question of gay marriage, I gather, but will address the question of discrimination.
WARREN ENTSCH: No. And, I mean, I heard a comment behind me, earlier on, about, you know, "This is the Liberal philosophy." I can assure you there's no private member's bills being intended to go in from the other side of politics, so I don't think you can sort of marginalise it to one particular party or the other.
JENNY BROCKIE: Will it be effectively, again, a same-sex union sort of legislation that you're talking about?
WARREN ENTSCH: I'm looking at the same as what the United Kingdom and a whole range of other countries have moved to do. I'm looking at a similar type of recognition.
JENNY BROCKIE: And how much support do you think you have for that within the Coalition?
WARREN ENTSCH: I believe that I have a lot of support. Speaking to a lot of my colleagues, I feel quite comfortable with that.
JENNY BROCKIE: Prime Minister, Attorney-General?
WARREN ENTSCH: Well, look, I mean, the Prime Minister... The Attorney-General and the Prime Minister's issues that they raised, with respect, were issues in relation to the using of marriage celebrants and the wording of the legislation.
JENNY BROCKIE: So you're going to find a way around this?
WARREN ENTSCH: Well, the ACT, as Senator Humphries says - and looking at it, you know, from what I've seen yesterday - have already addressed that so I'm comfortable with what the ACT has done. And so I feel that there is a lot of support there. I believe that there will be even stronger support given that we're going down the track of recognising interdependency and a civil union arrangement, rather than trying to focus on trying to drive through the issue of marriage.
JENNY BROCKIE: Well, we will watch with interest to see how much support you get from your colleagues. But thank you very much for joining us tonight. And thank you to everybody else too for joining Insight tonight. Very interesting discussion.
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