Another year bites the parliamentary dirt


Senator Bronwyn Bishop in Speaker's Chair

Another excruciating year in the Australian Parliament ended last week. What a dreadful year it has been for parliamentary democracy.

In the House of Representatives, Speaker Bronwyn Bishop has taken pride in the number of members she has ejected, describing the chamber not as ‘a polite debating society, not a classroom, but a battlefield and we’ve given up guns, swords and fists and we fight with words’. 

The Senate is more fractious than ever. There is nothing unusual in the government not controlling the Senate. Sometimes cross benchers can win some concessions from government, improving legislation and gaining special privileges for prized constituencies. The late Brian Harradine, whom we mourned this year, was a past master at it. Tasmania’s Jacqui Lambie is still on a rapid learning curve, as are Ricky Muir and the other new arrivals on the cross benches. Caught in the cross wires in the refugee debate on the last night of the year’s Senate sittings, the motoring enthusiast Muir lamented:

They told the people in detention that they rang the office of the man whose decision it was to decide whether they would be out of detention before Christmas. That man wasn’t the Minister for Immigration; it was me. It should not be like this but it is. The crossbench should not have been put in this position, but it has.

In the next two years, Ricky and his colleagues will be put in this position more often. Liberal Democrat Senator David Leyonhjelm announced in his maiden speech on 9 July 2014: ‘I believe we are about to begin one of the most exciting periods in the life of the Senate.’ Being a little known politician he set out his political philosophy: 

In the service of this mission, at the outset I declare that I am proudly what some call a ‘libertarian’, although I prefer the term ‘classical liberal’. My undeviating political philosophy is grounded in the belief that, as expressed so clearly by John Stuart Mill: ‘The only purpose for which power can be rightfully ever exercised over any member of a civilised society against his will is to prevent harm to others.’

He went on to say:

As William Pitt the Younger observed: ‘Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.’  Perhaps some are scratching their heads right now. How can someone support marriage equality, assisted suicide and want to legalise pot but also want to cut taxes a lot? If you are scratching your heads, it is because you have forgotten that classical liberal principles were at the core of the Enlightenment, the period that gifted us humanity’s greatest achievements in science, medicine and commerce and also brought about the abolition of slavery.

On 25 November 2014, Leyonhjelm gave notice in the Senate that he would be introducing a bill for the recognition of same sex marriage. He told the Senate that he and his wife of 30 years were not married and that he saw no need for the institution of marriage. But if the institution were to be provided by the state, it should be available to all couples regardless of gender or sexual orientation. In media commentary, he ruled out marriage of close family members ‘for biological reasons’ and he ruled out polygamy for everyone including Muslims who thought it socially and religiously acceptable. So he does see some role for the state in drawing the line. He told the Senate:

To my libertarian constituency, it barely qualifies as progress. To them, a better option would be to remove the government from marriage entirely by repealing the Marriage Act and leaving it to the law of contract—as in civilian countries. I do not disagree, and my own situation reflects that. But that is not as simple to achieve as it sounds. The fact is: the community places a certain significance on the institution of marriage. It accepts that individuals can live together in all kinds of relationships, irrespective of gender and numbers, but marriage is different. We need to respect that.

Next day he introduced to the Senate his Freedom to Marry Bill 2014. He told the Senate that the purpose of his bill was to address an injustice:‘When the law says that gay, lesbian, bisexual, trans, and intersex people cannot marry, in an important sense it is diminishing their liberty and their ability to make life plans: a major choice is closed off.’

In the United States, 34 States as well as the District of Columbia now permit same sex marriage. In 15 of those States, the change was made by federal court decisions made and applied in only the last three months. It has been a rapid change, but not driven by state congresses or public referenda. 

The initiative has come in the federal courts reading the judicial tea leaves in the light of the Supreme Court’s 2013 Windsor decision which struck down Congress’s attempt to limit State laws to marriage between a man and a woman. The Court did not decide whether the States had to legislate for same sex marriage. There are 16 States where same sex marriage is still not allowed. There are five applications presently before the Supreme Court asking that the court rule in favour of same sex marriage in some of these remaining 16 States. 

On 9 January 2015, the court is likely to indicate that it is now ready to consider the question. As ever, the contested moral political issue will be decided in the United States by the nine Supreme Court judges; here in Australia, the decision will rest with the Commonwealth Parliament. 

Just as the Supreme Court judges have discretion when to buy into the argument, so too the Coalition party room in Australia has discretion when to decide on a conscience vote for all its members, thereby indicating that the government is ready for the matter to be debated again in the Parliament. 

There is very little chance that the Abbott government will want to hand the bouquet for breaking the logjam on same sex marriage to David Leyonhjelm. As I predicted a year ago, the issue is unlikely to come to a head in the Australian Parliament until after the next federal election, by which time the US Supreme Court will have handed down its decision, probably in October 2015.

I continue to support a conscience vote for Australian members of parliament. Given that there is little support on either side of the argument for civil unions, I accept that same sex marriage is the only way ultimately to extend equality and respect to same sex couples wanting state endorsement for their committed relationships, and that the state has an interest in supporting such relationships which enhance the care for such couples especially when they are sick or ageing. But I continue to plead with lawmakers that we not lose sight of cultivating the best possible arrangements for the bearing and nurturing of children. 

That is why I continue to favour state adoption agencies being able to consider the desirability of an unrelated child being nurtured in a family unit constituted by an adult male and an adult female. This is still a relevant, though not the only, consideration in determining the best interests of the child. 

It is also why I favour a review of state administration and supervision of assisted reproductive technology which produces children without one known biological mother and one known biological father. I readily accept that in future there will be some children unharmed by not having such parentage, but I fear there will be others who will find it an unbearable existential burden. 

Their prospective voices need to be heard amongst the popping of champagne corks in favour of marriage equality. To get this right, we Australians will need our parliament to be a more considered and dignified place than a battlefield, and our politicians will need to use words not just as fighting tools. Those like Ricky Muir on the Senate cross benches will need to brace themselves. And David Leyonhjelm might need to step out of the limelight and defer to someone in the Coalition joint party room.

Frank BrennanFrank Brennan SJ, professor of law at Australian Catholic University, is presently Gasson professor at the Boston College Law School.

Topic tags: Frank Brennan, marriage equality, Australian politics, Senator David Leyonhjelm, adoption, children, Bronw



submit a comment

Existing comments

Nowadays a child is usually adopted by a couple one of whom is related to the child or by a couple who have fostered the child for some years. I have heard of cases in which the only suitable couple available to foster a child is a same sex couple. If there were a number of suitable couples available to foster a child, I think the fostering agency acting in the best interests of the child should be able to consider the social advantage to the child of being fostered into a family unit with an adult male and an adult female. That would not be determinative, but it is not an irrelevant or improper consideration.

Frank Brennan SJ | 08 December 2014  

I guess the key is accepting difference under the marriage umbrella. But we need to think long and hard when it comes to the best interests of children. Including the whole issue of surrogacy overseas or otherwise and the complex web i entailed. I'm having a real difficulty in with paying somebody to become a human incubator for whatever reason. In undeveloped countries sheer desperation and poverty might well be a driving factor. Just because we can do something does not necessarily make it morally right. I cannot imagine giving up a being growing within me for nine months foreign eggs and sperm notwithstanding.

Marie Ryan | 08 December 2014  

Thank you, Frank, for putting the rights and needs of children front and centre. Senator Leyonhjelm is interested in equal rights for committed couples, and rightly so - but these must not supersede the rights of children, so often ignored in our society.

Joan Seymour | 08 December 2014  

I agree with Frank: it has been a dreadful year for parliamentary democracy. On reflection, I believe a number of awards are in order as the year draws to a close. Most Improved Team Effort Award: Labor Party. Spectacular Non-Event Award: National Party. Double Speak & Gaffe Award: Liberal Party. Newbie Most Improved: J. Lambie. Titanic Struggle Award: Clive Palmer. Beastly Award: Cory Bernardi. Iron-Clad Hairdo Award: Bronwyn Bishop. Foot in Mouth Award: David Johnston.

Pam | 08 December 2014  

It's great to see David providing a loud, clear and principled voice for classical liberal ideas in parliament. It is long overdue.

John Humphreys | 08 December 2014  

I haven't checked the stats but I think that the proof of evermore disappointing parliaments would be the declining numbers of young people who register or turn up to vote. When they see a government go resolutely backwards on climate change (a disaster that will affect them more than us) they give up hoping to change the 'system' and just abandon it.

Russell | 08 December 2014  

What happened to you, Fr Brennan? Two wonderful opening paragraphs that promised an analysis of a "dreadful year." Then you get waylaid on one issue. You should be up for false packaging.

Frank | 09 December 2014  

Frank, I don't do the packaging. I don't choose the headline or the accompanying graphics. I wrote an article on same sex marriage, not having written on the topic for a year. There have been some recent developments in Australia and the USA relating to same sex marriage which I thought deserved attention. I don't think the Australian developments can be understood sufficiently without taking into account the appalling situation of our Parliament. I was not waylaid; I kept to my course. I am sorry you did not approve of the topic of my article.

Frank Brennan SJ | 09 December 2014  

Even though David Leyonhjelm is by far the most articulate and interesting man in Federal parliament, distinguishing himself from his colleagues in his ability to argue in syllogisms, not invective. Sadly, however, his version of classical liberalism is internally incoherent. Wishing to prevent harm to others, he should at the very least trenchantly oppose abortion from the moment of conception, embryonic stem cell research, and any IVF technique that involves destroying unwanted fertilized eggs (in other words, all the IVF programmes operating today). Moreover, he should criminalize the use of contraceptives which work by preventing the implantation of the zygote, just as I’m sure he believes parents who deliberately or recklessly feed their children poison or starve them to death should be brought to justice. Furthermore children have an alienable right to be conceived and brought up by within the natural family. Legalizing same sex marriage inflicts harm on any children brought by design into that purported marriage (by surrogacy, AID, etc) by a priori depriving them of this right as well, creating a “stolen generation”. So again, the consistent classical liberal would oppose same sex “marriage” at the very least on that ground. Mr Leyonhjelm, who is refreshingly effective in other areas in exposing myths and double standards, and equally anxious to permit diversity of peaceful lifestyle choice is uncharacteristically reluctant to consistently apply classical liberal principles to humanity in all its diverse forms.

HH | 09 December 2014  

I don’t understand how Fr Brennan can uphold a child’s right to have, where possible, both a mother and a father while supporting a legal change that he knows will abolish that right. Yes, the central concern with same-sex ‘marriage’ is that it makes it impossible for a child of that ‘marriage’ to have both a mum and a dad. Granting ‘marriage equality’ guarantees the right of same-sex couples to obtain a child by adoption or assisted reproductive technology (ART), since marriage is a compound right under Art XVI of the UDHR – “the right to marry and to found a family”. So how is it coherent to wish, on the one hand, for an adopted child to be “nurtured in a family unit constituted by an adult male and an adult female” and for an ART child to have “one known biological mother and one known biological father’, while on the other hand supporting ‘marriage equality’?

David van Gend | 09 December 2014  

Isn't it extraordinary that after many years in government Bronwyn Bishop's comment indicates that she still doesn't seem to understand government's purpose. Re marriage, Fr Frank, I have understood it (amongst other things such as true human love) within Christianity to represent a covenant with God the Creator as his instrument for the creation of human life. For this reason homosexual couples cannot claim their sexual union as marriage. Grant them civil rights as a life-devoted couple by all means but please let us call it for what that is - a civil, legal relationship, not marriage. Otherwise we might as well trash all the Sacraments of the Catholic Church and go home.

john frawley | 09 December 2014  

Could someone - David Van Gend for example - please enlighten me as to why it is socially desirable that children of an Intersex parent not be permitted to have a married biological father and mother? And how permitting same-sex marriage would decrease the number of children whose biological parents are married, when it obviously increases them in cases of Intersex parents? What has been the experience in jurisdictions which have allowed same-sex marriage - has there been a measurable decrease in children with married biological parents? Can one find a *single case* of a child denied married biological parents because same-sex marriage was allowed, rather than marriage breakdown that might have happened regardless? If not - then we're engaging in fantasy, at the expense of the reality.that some children are denied having married biological parents currently, but would be allowed that by this bill.

Zoe Brain | 09 December 2014  

Don't worry HH, Coalition control of both houses is all that you will need to achieve your aims, and a lot of other regressive steps as well.

Ginger Meggs | 10 December 2014  

Fr Brennan's contributions usually impress me, but this time he's lost me. While purporting to talk about the role of the cross bench senators in any debate on 'same sex marriage' and its implications for the raising of children, Frank sounds, to me, as if he accepts the inevitability of SSM but wants to restrict and contain the rights and opportunities for people in non-traditional marriages to raise and care for children. While the nurture of children is obviously an important matter and a proper area for legislation, they are surely completely separate issues from whether there is one or two parents or, if two, whether or not they are of the same sex, 'race', or religion. The simple fact is that throughout history, the so-called 'ideal' family of mother, father, and their genetic offspring has never been the universal norm. One has only to do a bit of nineteenth-century family history to see the number of children successfully raised by unmarried mothers, widows, or widowers, or in blended families resulting from second marriages, or for that matter, by grandparents, other relatives, or friends When will Catholics get over their dogmatic and legalistic objections to SSM and focus instead on how our society as a whole looks after its children?

Ginger Meggs | 10 December 2014  

GM, if it's "regressive" to uphold the inalienable rights of the most vulnerable members of our human family, then I'll wear the "regressive" badge with honour.

HH | 11 December 2014  

To Ginger I say: whether or not the state recognises ‘non-traditional marriages’, I think the state needs to ensure that the best interests of the child are always paramount when a decision is being made about fostering or adoption. If the state expands the definition of marriage to include the relationship of two persons who could not be the known biological mother and the known biological father of a child they ‘conceive’, there will be increased pressure to develop and permit the use of technology so that such couples can ‘conceive’ their own child with genetic material from each ‘parent’ without that child having only one known biological mother and only one known biological father. That will create difficulties for some children thereby created. It is appropriate to raise these issues at a time when state recognition of same sex marriage is likely to be a question of ‘when’ not ‘if’ . Such questions are not trite, and they are not a distraction. The answers are not found by invoking the simplistic mantra of non-discrimination between other-sex and same-sex couples. The issue is the well being of the child, not the equal treatment of the ‘parents’. To John Frawley, I say that the issue at hand is state recognition of marriage in a pluralist democratic society. The issue of sacramental marriage recognised by the Catholic Church is an altogether different question. Already most civil marriages in Australia are not recognised by the Catholic Church as sacramental marriages.

Frank Brennan SJ | 11 December 2014  

Thank you Frank; I am at one with you on much of what you say in your comment. We are talking about civil marriage, not 'sacramental marriage', and SSM is a matter of when, not if. The best interests of the child must always be paramount when fostering or adopting, and the state has a responsibility to ensure that it happens. The answers will not be found in either a simplistic mantra of non-discrimination, or the equally simplistic mantra of discrimination, on the basis of the nature of the relationship between the prospective adoptive parents. Future developments in reproductive technology (including genetic material from other than two 'parent' individuals?) are very likely to raise ethical and moral issues way beyond any of those that we have yet had to deal with. We would do well to have serious discussion of those issues progress in parallel with the technology, not lag behind. They will be very difficult discussions, even for atheists, let alone people of faith who ought to be able to bring a more 'enlightened' view but who, too often, I fear, will simply find it too threatening and so fall back on creeds and dogma developed in an earlier age. It's an imperfect analogy I know, but surely we don't have to go through the whole Copernicus/Galileo experience again?

Ginger Meggs | 11 December 2014  

Wear your badge proudly by all means HH, but until Minister Morrison shows some sign of considering the rights of vulnerable refugees and their children, I'll continue to expect regressive action from the government of which he is a part.

Ginger Meggs | 11 December 2014  

GM, so it's "regressive" to feed, house, and give medical care to children of prospective asylum seekers to a standard denied many if not most children in the developing world (at least), but it's OK and "progressive" to kill unborn children because they're not a boy/girl, have a cleft palate, or are just unwanted, and who, unlike refugees, don't have the wherewithal to escape their persecution?

HH | 11 December 2014  

Where have you been HH? Haven't you heard of Morrison's recent 'achievement'? Try reading < > and the many other reasoned evaluations. Then persuade me that the government's actions are not regressive.

Ginger Meggs | 12 December 2014  

Actually, GM, I too disagree with what seems on its face to be an instrumentalizing of children in Scott Morrison's tactics this week (though I haven't had time to get his version of the story). See, I'm a classical liberal, not a rusted-on Coalition groupie. And you're not going to convince anyone of my ilk with a distorted piece by a leftist who quotes the opportunist Sarah Hanson-Young ("Tragedies happen. Accidents happen" re. Green/Labor caused boat deaths.) as some kind of moral guardian. My point stands, of course, that children in detention are being fed, housed, and cared for health-wise. More to the point, every one of them will be out of detention by early next year - a dramatic reversal of the disastrous Labor/Greens chaos in a little over a year. But this doesn't get YOU off the hook, GM: in your righteous desire to slate Scott Morrison’s deeds, you’ve overlooked explaining why you don't apply your professed concern as a "progressive" for the care of children in detention, who don't go close to being killed, to those being slaughtered on a daily basis in utero simply for being girls, or having cleft palates, or just being unwanted. Perhaps we should just quietly and painlessly extinguish any children suffering in detention, and solve a whole lot of problems at once? Why not, "progressive"? You (unless I'm seriously mistaken) champion the practice every day with that other class of children (though it's not painless for many, of course - how "regressive" of me to point that out).

HH | 13 December 2014  

'But this doesn't get YOU off the hook, GM'? But HH, I'm not on the hook. I've not swallowed the bait of your absolutist dogmatic approach. A lived life is full of ethical and moral challenges every day. But at least it's lived.

Ginger Meggs | 17 December 2014  

We hear you GM: you really don't like "dogmatism"! But - and I hate to bore you with this - do you have a reasoned account that allows unborn innocent members of the human family to be deliberately killed but not other children? Or: are you saying that simply to ask this question (which I've heard from atheist/agnostic friends and colleagues) is itself a manifestation of preposterous "dogmatism"?

HH | 18 December 2014  

#Father Brennan ought understand there are deeper politico-moral issues re assisted reproductive technologies than "existential burdens":
#And also many more politico-moral issues on SSU among those "popping corks":
#And en passent to locate abolition of slavery on the same legislative trajectory as SSM and IVF and A.R.T legislations suggests too much "cork popping", frankly!! .
#Father Brennan ought further understand there are deeper politico-moral issues re assisted reproductive technologies than "existential burdens":
And also many more moral issues on SSU among those "popping corks":
#And en passent to locate abolition of slavery on the same legislative trajectory as SSM and IVF and A.R.T legislations is untenable
#And even liberal Pope Francis won't buy SSU adoption:
Of course Catholic ethics enhances parliamentary dignity[Viva Harradine legacy!!] .

Father John George | 05 January 2015  

MR Meggs sir the principles applied by the Roman Catholic Church to bio genetic, and associate issues stem not purely from fundamental revealed benchmarks and Creeds but ever present, up to date uninterrupted natural law, a veritable ultra-modern DNA norm in the heart of man versus treacherous antinomian quick fix 'unethical' sociopathic solutions [pace Dr Mengele;Nuremberg and Frankfurt Euthanasia trials ]

Father John George | 09 January 2015  

We should resist attempts to have community standards on morality and the natural order such as same sex "marriage" determined by the private views of unelected lawyers

Steve | 09 January 2015  

Four months on, the ABC News for 26 March 2015 carries this story: ‘Senator Leyonhjelm tried to pressure the Liberal party room to take a position on a conscience vote this week, but that did not eventuate. The Coalition opposed a push to change the Marriage Act in the last Parliament. Senator Leyonhjelm said he wanted to give the matter sufficient time for debate. "The Liberal Party didn't come to a decision as to its position on a conscience vote, so that debate would be somewhat artificial," Mr Leyonhjelm said. "It will be months before it's debated again. "For me to make my second reading speech now, when I can't make another one later in the debate, would be a bit of a waste, although I have a very good speech ready."

Frank Brennan SJ | 26 March 2015  

Similar Articles

#illridewithyou shows the kind of world that is possible

  • John Falzon
  • 19 December 2014

While the horrible tragedy was underway in Martin Place, a remarkable thing happened. We saw, and continue to see, a powerful sense of compassion in the 'I'll ride with you' spontaneous pledges. One one level it was a simple offer of human support. But it was also a deeply profound declaration of a vision for a just and inclusive Australia. 


Martin Place terror belies quiet progress in relations between cultures

  • Zac Alstin
  • 16 December 2014

The siege at the Lindt chocolate shop in Sydney's Martin Place is frightening for all Australians. It also obscures the progress of relations between Muslims and other Australians, as such events have such an unfortunate polarising 'us and them' effect.



Subscribe for more stories like this.

Free sign-up