Responding to Bill Shorten’s Arguments Against a Binding Vote on Marriage Equality

Last night, just 36 hours from the start of ALP National Conference, the Sydney Morning Herald published an opinion piece by Federal Opposition Leader Bill Shorten explaining why he supports a conscience vote on marriage equality[i].

The article itself is short and, based on any objective reading, the arguments he makes for a conscience vote (or rather, against a binding vote), are weak.

So weak, in fact, that it is tempting to assume Mr Shorten is aware there remains a strong chance that National Conference will decide on Sunday afternoon that the ALP should nevertheless bind (whether immediately, or taking effect from the start of the next federal election campaign), and he does not want to appear to be too out of step with the membership on this issue.

Whatever the motivation, in this post I will respond to the three main arguments against a binding vote put forward by Mr Shorten.

1. A binding vote would be difficult for ALP MPs and Senators who oppose marriage equality

Bill says: “I support marriage equality… But I understand that not every Labor MP or party member feels the same way. Some, particularly people of faith, take a different view. I respect this. It’s why I support a free vote on marriage equality.

Solidarity still has a powerful meaning in our party and a binding vote would put a handful of Labor MPs in a very difficult position. Either they vote against their conscience, or they vote against the party they’ve dedicated their working life to serving.”

Response: This may well be true – for a handful of ALP parliamentarians in both chambers the prospect of being compelled to vote for the full equality of lesbian, gay, bisexual, transgender and intersex Australians, including in the Marriage Act, does raise personal ethical issues for them.

But the problem is, and the key fact that Mr Shorten ignores, is that this dilemma – being compelled to vote for a position with which you do not agree – is not unique to the issue of marriage equality.

Indeed, to paraphrase a slogan from another political party, this is the exact same question faced by every ALP MP, on every single issue, and every single vote, whenever they disagree with the Party’s position – as a member of a political party based on collective action, and bound by the principle of solidarity, does my personal opposition outweigh my overall loyalty to the party?

It is the same question that is asked by ALP members from across the factional divide who find our current policies on refugees (which involve the offshore detention, processing and resettlement of refugees, including LGBTI refugees in countries that criminalise them) to be abhorrent.

It is the same question that was asked by ALP members who earlier this year personally opposed the Abbott Government’s metadata legislation – but which was supported by the Federal Opposition. Or who did not support the cuts to single parent payments made by the Labor Government in 2012, or who wanted to shut down the live animal export trade permanently in 2011[ii].

Each of these policy questions raises significant ethical issues for the MPs and Senators who have a different personal view to the overall position of the Party. But, in respect of no other policy was the response of the Party, and Party Leader, to say that this disagreement therefore meant that normal processes, which require parliamentarians to be bound, should not apply.

And Mr Shorten does not make any substantive argument for why the issue of marriage equality should be treated differently to any other issue.

He does make an indirect reference to ‘people of faith’ but, as has been explained previously[iii], that would only be relevant if ALP parliamentarians were being required to vote to change the definition of marriage within their religion – and no marriage equality Bill proposed to date would do any such thing.

Under every proposal, all ministers of religion would be free to continue to reject – or support (remembering that some religious organisations want to be able to marry LGBTI couples) – marriage equality.

All that Labor MPs and Senators are being asked to do is to vote for the equality of all Australians under secular law, irrespective of sexual orientation, gender identity and intersex status – and their personal faith is not a compelling argument to reject that vote being made binding as is standard operating procedure.

And it is even less compelling when we remember that a binding vote on marriage equality was adopted by the ALP from August 2004 to December 2011 – and that, during this time, all Labor parliamentarians who supported LGBTI equality, including those like Senators Penny Wong and Louise Pratt who were from the LGBTI community themselves, were required to vote against it.

Overall, then, Mr Shorten’s first argument does highlight the fact that supporting marriage equality might be difficult for some individual MPs and Senators – but that is not the same thing as saying that the normal rules of the Australian Labor Party, which ordinarily require binding, should not apply.

2. Labor should not adopt a binding vote because of what Tony Abbott might, or might not, do

Bill says: “I believe the best way to ensure our Parliament passes a definition of marriage which includes, values and respects every Australian relationship is for all representatives, from all parties, to have a free vote… I’m hopeful Tony Abbott will allow his MPs a free vote when Parliament returns, to achieve this outcome.

If Labor gets hung up on procedural argy-bargy, we jeopardise this possibility. Not only is it far more difficult for us to call on Tony Abbott to give his party room a free vote if we bind ourselves, there is also the risk that the Coalition re-commits to binding against marriage equality.”

Response: Mr Shorten is right to highlight the very real risk that Tony Abbott, and Warren Truss, and the political parties that they lead, could continue to bind their parliamentarians to vote against marriage equality. But what he omits to mention is that this risk exists irrespective of whatever delegates to this weekend’s ALP National Conference decide to do.

Even if the Labor Party chooses to retain a conscience vote on marriage equality, in the hope that it will somehow entice the Liberals and Nationals to do the same, there is no guarantee this move will have any influence over them whatsoever.

After all, if the ALP’s position was so influential, then it is reasonable to ask why the Coalition hasn’t adopted a conscience vote during the three and a half years in which Labor has already had one[iv].

Mr Shorten’s argument also seems to suggest that a conscience vote on both sides is numerically the most likely to succeed, when in fact the best chance for passage would be for the Labor Party to adopt a binding vote, and for the Liberal and National Parties to adopt a conscience vote.

As Australian Marriage Equality has repeatedly made clear, even with a conscience vote on both sides, if and when a cross-party marriage equality Bill is considered later this term, it could still fall short.

And that phrase, ‘this term’, is actually the key here. Because the decision whether to adopt a binding vote, or retain a conscience vote, is about far more than the remaining 13 months of this parliamentary cycle.

This debate is also about what policies the Australian Labor Party takes to the next Federal Election, and whether it is able to implement them.

If Mr Shorten wants to be able to stand before the Australian people, with hand on heart, and declare that, if elected, a Labor Government he leads would introduce marriage equality, then the only way in which he would be able to ensure it could be delivered is by adopting a binding vote, right here at this Conference.

The decision for National Conference delegates now is about whether the Australian Labor Party fully supports marriage equality, and ensures that all of its MPs and Senators vote accordingly when it next comes before Parliament.

The decision is also about whether, if that vote fails and we are elected to Government next year, a new Labor Government is able to finally deliver marriage equality to lesbian, gay, bisexual, transgender and intersex Australians who have already waited for far too long.

And it is a decision which is far too important to ‘outsource’ to Tony Abbott, and Warren Truss, and the Liberal and National Party rooms, based on hypotheticals about what they may or may not do.

3. A conscience vote is an inherently better way to achieve reform than a binding vote

Bill says: “Frequently now people speak of marriage equality as an “inevitable” social change. In my experience, there is no such thing as inevitable progress, and worthwhile change is always hard-won. The best way to deliver reform is to bring people together. To build support by finding common ground; through consensus not coercion – not through the force of procedure but through the power of an idea whose time has come.”

Response: To many, the sentiments in this paragraph might seem noble. To me – and, I suspect, to most ordinary members of the Australian Labor Party – this paragraph seems almost bizarre.

After all, Mr Shorten is a former trade union official who became state, and later national, secretary of the Australian Workers Union. And he has been a Labor Party MP for almost eight years, including serving as a Cabinet Minister and now, for almost two years, as Party Leader during Opposition.

In all of those positions and roles he has been part of organisations and bodies that are based on solidarity, whether that involves taking collective action in industrial disputes, or voting collectively to change the nation’s laws.

For him to turn around now and say that the best way to deliver major reform is “through consensus not coercion – not through the force of procedure but through the power of an idea whose time has come” is, in effect, arguing that the entire way in which both the union movement and Australian Labor Party operate is inherently wrong.

Is Mr Shorten genuinely saying that all the legacy reforms passed by Labor Governments, from the introduction of Medicare to the expansion of higher education, from the passage of the Racial Discrimination Act and Sex Discrimination Act to the legislative recognition of native title, and more recently from the repeal of WorkChoices to the introduction of the National Disability Insurance Scheme, should have been achieved through conscience votes? Because that is the clear implication of his argument.

To fully realise just how strange, nonsensical even, Mr Shorten’s argument here is, we should consider the major policy which he announced just yesterday morning – a commitment for a 50% renewable energy target by 2030[v].

That would be a major reform – and it is definitely “an idea whose time has come”. By the same logic which he has used to argue against a binding vote on marriage equality, the best way to achieve a 50% RET must be through “consensus not coercion”, meaning Labor parliamentarians should be free to vote against it.

Mr Shorten would probably recoil in horror at that prospect. Well, the rest of us recoil at the double-standard which suggests that the Labor Party can and should bind in order to achieve political, economic, environmental and social change – but that it cannot bind to help achieve change for LGBTI Australians.

So, unless he is going to propose an amendment at this weekend’s Conference to make all policies optional for all Labor Party MPs, he should stop arguing to make just the issue of marriage equality non-binding.

********************

From this discussion, it is clear that none of the three main arguments put forward by Mr Shorten withstand close scrutiny.

After reading, and re-reading, his opinion piece, it is also clear that he fails to grapple with the core of the issue, which is this:

  • Should Labor Party MPs and Senators be free to vote for continued discrimination against LGBTI Australians under secular law?
  • Should our parliamentarians have the so-called ‘right’ to deny human rights to one group in society solely on the basis of who they are?
  • Should ALP caucus members have the option to reject the fundamental equality of their fellow citizens simply because of their sexual orientation, gender identity or intersex status?

The answer to these questions should be, indeed must be, no. And I sincerely hope that the majority of National Conference delegates agree come Sunday afternoon.

Of course, it is incredibly disappointing that the Leader of my political party, Bill Shorten, does not. But he should remember that at the last National Conference the delegates rejected the view of the then Leader, Prime Minister Julia Gillard, that the Party should not change the platform to support marriage equality.

We can, and must, reject his view this time around, and make that platform position binding on ALP MPs and Senators. It’s time to support LGBTI equality 100%. It’s time to bind.

Opposition Leader Bill Shorten's arguments against a binding vote on marriage equality do not withstand close scrutiny.

Opposition Leader Bill Shorten’s arguments against a binding vote on marriage equality do not withstand close scrutiny.

[i] “Bill Shorten: Why I Support a Free Vote on Gay Marriage”, Sydney Morning Herald, 22 July 2015: http://www.smh.com.au/comment/bill-shorten-why-i-support-a-free-vote-on-gay-marriage-20150722-gii96f.html

[ii] For more on this issue, see “One of these things is not (treated) like the others” : http://alastairlawrie.net/2015/04/22/one-of-these-things-is-not-treated-like-the-others/

[iii] See “Why the Australian Labor Party should still adopt a binding vote on marriage equality”: http://alastairlawrie.net/2015/07/14/why-the-australian-labor-party-should-still-adopt-a-binding-vote-on-marriage-equality/

[iv] For more on this issue, see “Why the Australian Labor Party should still adopt a binding vote on marriage equality”: http://alastairlawrie.net/2015/07/14/why-the-australian-labor-party-should-still-adopt-a-binding-vote-on-marriage-equality/

[v] “Bill Shorten to unveil 50% renewable energy target at Labor conference”, Sydney Morning Herald, 22 July 2015: http://www.smh.com.au/federal-politics/political-news/bill-shorten-to-unveil-50-renewable-energy-target-at-labor-conference-20150721-gih4bp.html

What ALP National Conference Delegates Should Hear About Marriage Equality

While I am a member of the Labor Party (and have been for more than 13 years), I have not been elected as a delegate to this year’s ALP National Conference, which will be held in Melbourne next weekend (Friday 24 to Sunday 26 July).

If I had been, and if I had the privilege of speaking during the Rules debate scheduled for Sunday afternoon, this is the speech I would like to give:

*************************************

It’s time for the Australian Labor Party to fully support the equal rights of lesbian, gay, bisexual, transgender and intersex Australians.

It’s time to say – without equivocation or qualification – that the relationships of LGBTI people must be treated in exactly the same way under secular law as their cisgender heterosexual counterparts.

It’s time to take the Platform position, which already supports marriage equality in principle, and make it binding on the members of the Federal Parliamentary Labor Party.

The Labor Party can bind on marriage equality.

In fact, for more than two thirds of the time marriage equality has been debated in our Parliament, the ALP has bound its MPs and Senators on this issue – from Howard’s homophobic ban in August 2004, which we shamefully supported, until the last National Conference in December 2011, Labor MPs and Senators were bound to vote against it.

With a large majority of Party members, of Labor MPs and Senators – and, above all, of the Australian community – supporting amendments to the Marriage Act to ensure it does not discriminate on the basis of sexual orientation, gender identity and intersex status, there is absolutely no reason why we should not bind in support in 2015.

There is nothing so unusual or exceptional about marriage equality that dictates that normal Party processes, based on the principles of solidarity and collective action, and which ordinarily demand a bound vote, should not apply to this issue.

Despite what some delegates might try to argue, religious freedom is not a legitimate argument to reject a binding vote.

The introduction of marriage equality will not have an adverse impact on religious freedom. Under every Bill proposed to date, ministers of religion will be free to decline to officiate LGBTI weddings.

In fact, the introduction of marriage equality will enhance religious freedom because it will allow those organisations and faiths that want to marry LGBTI couples to do so.

As Tony Burke notes: “Those who want to marry will be able to do so. Those who do not want the change will be unaffected by it.”

That includes individual parliamentarians who want to oppose marriage equality simply because it does not accord with their personal faith.

If legislation sought to impose marriage equality within religion, to change the official teachings of their faith, they might have an argument.

But it does not. Again, as Tony Burke observes: “The various religious faiths will continue to have their own views and rules around marriage. The law of Australia needs to respect the freedom of people to practice their faith and it will.”

Viewed in this way, it is clear that MPs and Senators demanding a conscience vote in order to oppose equality in secular law are not seeking to exercise their ‘religious freedom’ – they are seeking to impose their personal religious views onto others.

And, as a secular political party, we should vigorously resist their attempts.

The Labor Party should bind on marriage equality.

It should bind because introducing this reform would address one of the major outstanding forms of discrimination against LGBTI Australians – and the ALP should always stand united in addressing discrimination against the marginalised.

In the words of Deputy Leader Tanya Plibersek, the question is simple: “Do we support legal discrimination against one group in this country? Or do we not?”

It should bind because the ability to found a family, and to have one’s relationships recognised under secular law, is more than just a natural desire, it is a fundamental human right.

Human rights should not be ‘optional’, and their recognition should not be left up to the whim of individual Labor Party MPs and Senators, as it is under a conscience vote.

As my old boss, Senator John Faulkner, told the 2011 National Conference when this same question was being debated: “A conscience vote on human rights is unconscionable.”

It should bind because the current Party Rule – which says “Conference resolves that the matter of same-sex marriage can be freely debated at any state or federal forum of the Australian Labor Party, but any decision reached is not binding on any member of the Party” – is not only wrong, it is offensive.

Commitments to achieve human rights should not come with an asterisk.

‘Terms and conditions’ should not apply when what is at stake is the equality of people on the basis of their sexual orientation, gender identity and intersex status.

It is offensive that special Party Rules continue to allow individual Labor MPs and Senators to vote against those rights, that equality. These provisions should be permanently removed from our governing document.

It should bind because it is unjust to impose solidarity on lesbian, gay, bisexual, transgender and intersex members of the Party, and to not offer it in return.

It is unjust to demand loyalty, to make Senator Penny Wong vote against her own community’s rights for seven and a half years, and Senator Louise Pratt for three and a half – and then deny that same loyalty when the Platform position changes to one of support for equality.

Solidarity, and loyalty, cannot be continually demanded of us but not reciprocated.

Finally, it should bind because lesbian, gay, bisexual, transgender and intersex Labor members are sick and tired of having our rights being sacrificed as the price of ‘Party unity’.

Granting a conscience vote on marriage equality should not be a ransom that is paid to parliamentarians who threaten to quit the Party rather than be compelled to vote to recognise the love of LGBTI couples.

If denying the legal equality of others is more important to them than adhering to Party solidarity – something they expect of others, but are unwilling to offer themselves – then they should leave. The rest of us should no longer give in to their blackmail.

The Labor Party must bind on marriage equality.

It must bind to finish the job that was left half-done by our predecessors in 2011, who voted to change the Platform, but narrowly failed to make that position binding.

That failure has had real adverse consequences – a bound vote in September 2012 could have seen marriage equality passed last term, putting an end to the painfully long wait of LGBTI couples simply to enjoy the same legal rights that are taken for granted by others.

Had the last National Conference decidedly differently, some Australians need not have died waiting for their relationships to be recognised by their own country – as some inevitably, and tragically, have done.

Adopting a binding vote now would demonstrate that we acknowledge we got it wrong in December 2011, and, in doing so, we apologise.

But this is about more than making up for past mistakes – it is about the present, too.

We must bind to ensure the Australian Labor Party does everything within its own power to support marriage equality in 2015.

We cannot control what Tony Abbott, and Warren Truss, and their respective Parties do on this issue – if we could, they would have adopted a conscience vote during the three and a half years in which we have already had one.

What we can control is our own Party and its Rules. What we can control, by adopting a binding vote, is ensuring as many ALP MPs and Senators as possible vote in favour of marriage equality the next time it comes before the Parliament.

That is what we are accountable for, and should be judged on accordingly.

And we must bind for the future. If marriage equality is rejected this term – and that remains a genuine possibility – the Australian Labor Party must be able to go to the next election telling the people that, if elected, it will pass marriage equality as quickly as possible.

The only way that it will be able to make that commitment is by adopting a binding vote at this Conference.

Lesbian, gay, bisexual, transgender and intersex Australians have waited long enough already – too long, actually – and, if legislation is unsuccessful this year, and we win in 2016, they will be looking to us to finally pass this reform.

If, as a newly-elected Government, we are unable to do so because too many Labor MPs and Senators exercise a conscience vote against the rights of their fellow citizens, we will left looking completely ineffectual – and, much more significantly, LGBTI Australians will be let down yet again.

Labor must be able to promise to introduce marriage equality next term – and, just as importantly, it must be able to deliver it.

Because only in that way can the Labor Party truly claim that it will represent, and govern for, all Australians.

Only by adopting a binding vote can we say that the famous ‘Light on the Hill’ shines for everyone – and that we will use its light to overcome the darkness that is homophobia, biphobia, transphobia and intersexphobia, both in the law and in society.

Only by adopting a binding vote can the Australian Labor Party say that it is whole-heartedly committed to creating a country that is free from discrimination on the basis of sexual orientation, gender identity and intersex status.

It’s time to make that commitment, here at this Conference, and then again later this year on the floor of Parliament.

Delegates, it’s time to bind in support of marriage equality.

Senator Penny Wong at the 2011 ALP National Conference in Sydney

Senator Penny Wong at the 2011 ALP National Conference in Sydney

Why the Australian Labor Party should still adopt a binding vote on marriage equality

Over the past couple of months, a large number of people have invested a lot of time and energy in the possibility of a conscience vote within the Liberal Party, and that such a vote will, alongside the votes of the majority of ALP (and all Greens) MPs and Senators, help to deliver marriage equality in the second half of 2015.

And many have argued that, given this focus, we should no longer pursue a binding vote in favour of marriage equality within the Australian Labor Party at their National Conference, which will be held in Melbourne in ten days’ time (Friday 24 July to Sunday 26 July 2015, with the binding versus conscience debate likely to be held on the Sunday afternoon).

But we should remember that these two goals – seeking a conscience vote within the Liberal Party, and an ALP binding vote – are not mutually exclusive (as I have explained in previous posts)[1].

Even more importantly, we should acknowledge that, while we may hope for a Liberal Party conscience vote, it would be dangerous to expect it to happen.

Much of the optimism of recent times relates to Prime Minister Tony Abbott’s comments in Parliament in the week after the successful Irish marriage equality referendum, in which said:

“If our Parliament were to make a big decision on a matter such as this, it ought to be owned by the Parliament and not by any particular party.”[2]

A number of people interpreted this statement to mean that he was open to the possibility of a Liberal Party conscience vote, and that he was in fact inviting Coalition backbenchers to start work on a cross-party Marriage Equality Bill, to be introduced in Parliament after the winter recess.

Except that the Prime Minister gave no such invitation, and certainly did not provide an unambiguous commitment – all he did was offer an observation, and one that started with a very big “IF”.

And of course, even if Tony Abbott had given a commitment, we would do well to remember that, based on the long trail of wreckage he has already left in less than two years in the Lodge – and the 40 promises to the Australian people he has already broken[3] – he is arguably the biggest commitment-breaker ever to hold the highest political office in the country, so it would be very difficult to hold him to his ‘word’ in any event.

Events since that statement have also confirmed the substantial obstacles that remain in the way of a Coalition conscience vote. They include:

  • Liberal MPs who oppose a conscience vote within the Liberal Party
  • National MPs who oppose a conscience vote within the National Party
  • Liberal MPs who would like the issue of a conscience vote to be considered by the joint party room, rather than the Liberal Party room alone, because it would stand a better chance of defeat
  • Coalition MPs who have argued that Australia should only recognise LGBTI relationships through civil unions rather than marriage, and
  • Coalition MPs who have advocated the holding of a referendum or plebiscite rather than allowing the matter to be decided by the Parliament.

We have even had the Leader of the Government in the Senate, Liberal Senator Eric Abetz, suggest that frontbenchers that support marriage equality should resign their Cabinet position if they wanted to advocate on this issue. As quoted in the Australian Financial Review:

“There is very strong support in favour of maintaining the definition of marriages as it is in the marriage act… If you can’t support party policy, like I did with emissions trading, you do the honourable thing and I resigned from the front bench.”[4]

Not to forget the ‘stellar’ contribution of Agriculture Minister, Deputy Leader of the National Party (and future Deputy Prime Minister) Barnaby Joyce’s implication that marriage equality should be resisted because it might damage our cattle and beef exports to South East Asia (a suggestion so embarrassing to Australia it has been reported on around the world)[5].

Perhaps most worrying of all was the reaction of the Prime Minister’s office to the news earlier this month that a cross-party working group had in fact drafted a Marriage Equality Bill, with the aim of consideration by the Liberal Party room, and hopefully the Parliament, in August.

Abbott’s office released the following statement:
“Any member can introduce a private member’s bill into the parliament but they do not come before the joint party room for discussion unless they will be voted on in the parliament.

“It is rare for a private member’s bill to be voted on and any bill would be subject to the usual process. The prime minister’s position remains the same as it has always been and he supports the current policy that marriage is between a man and a woman. The government’s priority is strong economic management and keeping Australians safe.”[6]

There are (at least) three issues of particular concern with this statement:

  1. The reference to the joint party room (rather than Liberal Party room), making a conscience vote less likely to succeed
  2. The reference to parliamentary procedure, hinting that debate on any private member’s Marriage Equality Bill could be blocked by the Selection of Bills Committee (which is dominated by Liberal and National Party MPs who are themselves opposed to LGBTI equality), and
  3. The reference to other priorities (including the economy and national security), indicating that the Prime Minister could oppose the Bill progressing because it would somehow detract from these issues.

All in all, it would be heroic to assume there will inevitably be a conscience vote within the Liberal Party on this issue – and there is indisputably a very real risk that they reject a free vote, with that risk existing irrespective of whatever position the Labor Party adopts at its National Conference later this month.

That’s right – despite some people arguing that the Australian Labor Party should not adopt a binding vote because such a move will automatically prevent the Liberals from adopting a conscience vote, it is unlikely that Labor’s position will be the sole, or even decisive, factor.

A number of Liberal MPs have shown, quite comprehensively, over the past two months that they have their own reasons for opposing a conscience vote, and these reasons exist regardless of what delegates to ALP National Conference choose to do.

And that is entirely logical – after all, if the ALP’s position was so persuasive across the political aisle as to be almost irresistible (as some apparently believe it to be), the Liberals would have adopted a conscience vote on marriage equality at some point in the more than three and a half years Labor has already had one.

Of course, that does not mean that, should the Labor Party adopt a binding vote on marriage equality, and the Liberals subsequently choose to reject a conscience vote, the Liberal Party, and its few remaining moderate MPs, will not try to blame the ALP for this outcome[7].

In fact, that would be the most predictable development in this entire debate – the Party blocking reform would point the finger at anyone, and everyone, but itself in an effort to deflect responsibility for its own actions. It is not even a ‘risk’, but a guarantee.

But that is a political debate, and surely one the Australian Labor Party should be willing to take on.

If, come August, the ALP supports marriage equality with a binding vote, something which is both the right thing to do, and a position which is supported by between two thirds and three quarters of the population, and the Liberal and National Parties, who form the majority of the House of Representatives, oppose marriage equality with their own binding vote, then Labor MPs must be able to apportion blame squarely where it belongs – on Tony Abbott and his colleagues.

And, putting it frankly, if they can’t win that particular political argument, with almost everything stacked in their favour, then perhaps we should sack the entire Federal Parliamentary Labor Party and start again.

We should also acknowledge that there are real and serious risks for the Labor Party in the opposite direction – that choosing to continue with a conscience vote at the National Conference in July brings with it its own dangers.

First, even if the ALP maintains a conscience vote in the hope of enticing the Liberal Party into adopting one, for the reasons outlined above, Liberal (or Coalition) MPs could still refuse, thus rendering marriage equality unachievable this term.

Not only will that leave Labor looking somewhat silly, but, given they will be unable to change their rules until the next National Conference (due in 2018), for the remainder of this term Labor will be left in a position where it too is vulnerable on this issue, because it doesn’t support marriage equality 100%.

Second, even if the ALP maintains a conscience vote, and the Liberal Party adopts one, marriage equality could still fall a handful of votes short when it is considered later in 2015 (or early in 2016).

In these circumstances, it is almost inevitable that people will look to where else those ‘missing’ votes could have come from – and at least some fingers will point in the direction of Labor’s failure to adopt a binding vote.

Indeed, this is something that Katherine Murphy of the Guardian Australia has already written about:

“I’m not quite sure what the panic is, because whether or not same-sex marriage becomes law in this country is 95% in the hands of the Abbott government, and the prime minister is not a supporter of marriage equality.

I say 95% because if the vote in the House of Representatives is as close as I suspect it is, Labor binding its MPs to vote yes to marriage equality could be the extra element to get the proposal over the line. If same-sex marriage eventually comes to a vote, and that vote falls just short, do remember that fact. Bill Shorten has plumped his credentials on this topic, but he’s also effectively killed off a binding vote for Labor on gay marriage” (emphasis added)[8].

Third, failing to adopt a binding vote could seriously harm a new Labor Government should it win the 2016 Federal election. Here’s how:

Marriage equality is defeated this year (either because a conscience vote on both sides falls short, or because the Liberal Party continues to bind against). Possible.

Labor is elected at the 2016 Federal election with a narrow majority (or relying on cross bench support). Possible.

The number of ALP MPs who would exercise any conscience vote against the full equality of lesbian, gay, bisexual, transgender and intersex Australians exceeds the size of their overall parliamentary majority. Possible.

The Liberal-National Opposition, now led by Scott Morrison, retreats – even further, if that’s possible – into ‘conservatism’ after losing Government, and binds (or continues to bind) against marriage equality. Possible – and thoroughly terrifying.

And marriage equality is consequently defeated, at least until the 2018 ALP National Conference, which is the next opportunity to change the Party’s rules.

While the above sequence of events is admittedly not the most likely to occur, it is by no means beyond the realms of possibility – and its impact would be devastating.

Because newly-elected Prime Minister Bill Shorten, who personally supported marriage equality so much he moved his own Marriage Equality Bill, and consistently criticised Prime Minister Tony Abbott for refusing to support it, and leading a political party which supports marriage equality in its platform, and being elected to Government with the good will of the population (at least on this issue), would still be unable to deliver this important social reform.

This would make both Prime Minister Shorten, and the Party that he leads, look completely ineffectual – thus frustrating the hell out of the electorate, who would have every right to expect that a new Labor Government would be able to deliver a reform that is, in 2015, already years overdue.

The best way, indeed the only way, to ensure that a newly-elected ALP Government would be able to deliver marriage equality in 2016 is for it to adopt a binding vote at its 2015 National Conference.

Obviously, most of the above discussion is about politics – both small ‘p’, and capital ‘P’ – about internal divisions in the Liberal Party, and what they might do on this issue in coming months, about hypotheticals, and strategy, and about the political risks, on both sides of this debate, for the Australian Labor Party.

This is not to suggest these considerations are what should ultimately guide the delegates in Melbourne on Sunday 26 July when they decide whether to adopt a binding vote – indeed far from it (as I will explain below).

However, it is necessary to discuss these issues in some depth because anyone who asserts that the current ‘politics’ of marriage equality are straightforward – that the ALP must retain its conscience vote so the Liberal Party adopts their own, leading to marriage equality being passed in the second half of 2015 – is wrong.

Even if the Labor Party keeps their conscience vote, there is absolutely no guarantee that the Liberal Party introduces their own. And even if Tony Abbott does grant (or at least accept) a ‘free vote’ inside his Party, it doesn’t necessarily follow that marriage equality will be passed this term.

There is real uncertainty about what happens next – and, as I have detailed above, there are real dangers for the Labor Party in retaining a conscience vote, and hoping (or wishing) that the Liberal Party ‘plays ball’.

In this context, where there is both genuine doubt, and genuine risk, no matter what position the ALP takes, I would argue that delegates should decide the issue on its merits: Is a binding vote in favour of marriage equality the principled position for the Australian Labor Party to adopt?

And the answer to that question must be an unequivocal “YES”.[9]

As a political party based on solidarity and collective action, there are no legitimate arguments to say that the issue of marriage equality is so special, so exceptional, that the ordinary process of ‘binding’ on policy positions should not apply here too.

Indeed, for more than two thirds of the time this issue has been voted on in Federal Parliament, the Australian Labor Party has adopted a binding vote on marriage equality – from August 2004 to December 2011, it bound its MPs and Senators to vote against.

Now that the Labor Party has a platform position in favour of removing discrimination against lesbian, gay, bisexual, transgender and intersex Australians from the Marriage Act, it is inappropriate, almost offensive, to turn around and say that its removal should be deemed ‘optional’.

As Deputy Leader Tanya Plibersek put it so eloquently, when asked about this issue in April, the choice is in fact remarkably clear:

“Do we support legal discrimination against one group in this country? Or do we not?”[10]

And that is the decision that confronts delegates to ALP National Conference in ten days’ time. Not considering the hypothetical: “If we do this, Abbott might do that, and then something else might happen.”

But asking the practical question: “If we support marriage equality, if we genuinely believe that lesbian, gay, bisexual, transgender and intersex Australians should be treated equally under the law, then why should some ALP MPs and Senators be allowed to continue to vote against the rights of their fellow citizens solely on the basis of their sexual orientation, gender identity or intersex status?”

The answer is, obviously, that they should not. And I still hope that is the conclusion that the majority of National Conference delegates reach on Sunday 26 July.

Protesters outside the 2011 ALP National Conference, calling for Labor to support marriage equality, and adopt a binding vote. Only the first half was achieved - in 2015, it's time to finish the job.

Protesters outside the 2011 ALP National Conference in Sydney, calling for Labor to support marriage equality, and to do so through a binding vote. Only the first half was achieved – in 2015, it’s time to finish the job.

PS If you support a binding vote, and are in Melbourne during ALP National Conference, please consider coming along to the rally outside the Melbourne Convention and Exhibition Centre, from 1pm on Saturday July 25. Full details here: <https://www.facebook.com/events/343248609218667/ #ItsTimeToBind

[1] “Hey Australian Labor, It’s Time to Bind on Marriage Equality” http://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/ ; “4 more arguments against an ALP binding vote on marriage equality, and why they’re wrong too” http://alastairlawrie.net/2015/04/16/4-more-arguments-against-an-alp-binding-vote-on-marriage-equality-and-why-theyre-wrong-too/

[2] From Sydney Morning Herald, “Same-sex marriage vote should be owned by the Parliament: Tony Abbott” http://www.smh.com.au/federal-politics/political-news/samesex-marriage-vote-should-be-owned-by-the-parliament-tony-abbott-20150527-ghaohc.html

[3] From the webpage “Abbott’s Wreckage” http://sallymcmanus.net/abbotts-wreckage/

[4] “Gay Marriage Causes Coalition Civil War”, 2 July 2015: http://www.afr.com/news/politics/gay-marriage-causes-coalition-civil-war-20150702-gi33uh

[5] From The Independent (UK): http://www.independent.co.uk/news/people/australian-minister-barnaby-joyce-claims-legalising-samesex-marriage-could-damage-cattle-trading-with-asia-10369540.html and Time: http://time.com/3947537/australia-barnaby-joyce-cattle-gay-same-sex-marriage/

[6] As reported in the Guardian Australia, “Tony Abbott digs in to frustrate any possibility of same-sex marriage vote” 2 July 2015: http://www.theguardian.com/australia-news/2015/jul/02/tony-abbott-digs-in-to-frustrate-any-posibillity-of-same-sex-marriage-vote

[7] Indeed, gay Liberal Senator Dean Smith has already attempted to make this argument, when Tanya Plibersek was publicly advocating a binding vote in April: http://www.smh.com.au/national/gay-liberal-senator-dean-smith-slams-tanya-plibersek-over-gay-marriage-move-20150427-1mu99l.html

[8] “Tony Abbott digs in to frustrate any possibility of same-sex marriage vote” 2 July 2015: http://www.theguardian.com/australia-news/2015/jul/02/tony-abbott-digs-in-to-frustrate-any-posibillity-of-same-sex-marriage-vote

[9] Regular readers of this blog know there are large number of reasons why I believe Labor should bind. This post will only cover a few – if you would like to read more, you should start with “Hey Australian Labor, It’s Time to Bind on Marriage Equality”: http://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/

[10] Sydney Morning Herald, “Plibersek push to make Labor MPs vote for same-sex marriage”, 27 April 2015: http://www.smh.com.au/federal-politics/political-news/plibersek-push-to-make-labor-mps-vote-for-samesex-marriage-20150427-1mteon.html

Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

As I have written previously, the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was a major achievement for lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Australia[1].

It provided anti-discrimination protections for LGBTI people under Commonwealth law for the first time – including historic world-first specific protections for people with intersex variations.

However, one thing this legislation did not do was establish a statutory position for a Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues within the Australian Human Rights Commission (AHRC) – unlike existing positions for race and sex (indeed, the Sex Discrimination Commissioner is created in section 96 of the same act in which LGBTI anti-discrimination protections now live[2]).

This means there is no guaranteed advocate for LGBTI equality within the AHRC. The current President of the AHRC, Gillian Triggs, has sought to overcome this serious shortcoming by asking the Human Rights Commissioner, Tim Wilson, to also accept responsibility for SOGII issues, in addition to his existing priorities.

Nevertheless, this essentially stop-gap measure does not reconcile the challenges presented when his ‘part-time’ role – his responsibilities for LGBTI matters – conflicts with his full-time role – he was appointed by the Commonwealth Attorney-General, Senator George Brandis, with the explicit mandate to advocate for ‘freedoms’, by which he meant traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

Over the past 18 months, this tension has played out in a variety of ways, including through the failure of the otherwise worthy Resilient Individuals: Sexual Orientation, Gender Identity & Intersex Rights 2015 Report[3] to adequately address the issue of state-sanctioned discrimination by religious organisations against people simply for being LGBT.

However, this conflict has come to a head in a column which Mr Wilson wrote for The Australian last week on the topic “Religious freedom and same-sex marriage need not be incompatible”[4], in which he argued that, should marriage equality legislation be passed in Australia, new rights should be created to allow not just ministers of religion, but also businesses involved in providing wedding-related services (and yes, that includes businesses selling wedding cakes), to discriminate against customers.

Through this column, Mr Wilson has indicated that his first priority is protecting the freedom to discriminate, and that the right of LGBTI Australians not to be discriminated against comes second (and even then arguably by some distance). He has therefore demonstrated that his roles as Human Rights Commissioner, and ‘part-time’ responsibility for SOGII issues, are incompatible.

In the short-term, lesbian, gay, bisexual, transgender and intersex Australians deserve a Commissioner within the AHRC whose existing responsibilities do not cause them to advocate against their interests. In the medium-term, we need a stand-alone full-time Commissioner for SOGII issues within the Commission, to avoid these problems arising in the future.

I have written below two letters, one to the President of the AHRC, Gillian Triggs, calling for Mr Wilson’s responsibilities for LGBTI matters to be reallocated within the Australian Human Rights Commission.

And I have written a second letter to the Shadow Attorney-General, Mark Dreyfus, asking him to support a resolution at the upcoming ALP National Conference to amend the Labor Party Platform to include a commitment to create a new Commissioner for Sexual Orientation, Gender Identity and Intersex Issues within the AHRC.

I have chosen not to write or send a third letter, to the current Attorney-General, George Brandis, given he likely agrees with the actions of Mr Wilson, and it is extremely unlikely that someone who axed funding for the position of Disability Commissioner (and therefore ended the role of the highly-respected disability rights advocate Graeme Innes) last year, would somehow find funding for the creation of a SOGII Commissioner today.

As always, I will publish any responses I receive from Ms Triggs and Mr Dreyfus.

Professor Gillian Triggs

President

Australian Human Rights Commission

GPO Box 5218

SYDNEY NSW 2001

Sunday 12 July 2015

Dear Professor Triggs

PLEASE REALLOCATE RESPONSIBILITY FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the allocation of responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission (AHRC).

Specifically, I call on you to reallocate these responsibilities, which currently lie (informally at least) with the Human Rights Commissioner, Mr Tim Wilson, to another of the Commissioners within the AHRC.

I do so because I believe that the stance which Mr Wilson has adopted, in advocating for traditional freedoms like freedom of religion, has taken precedence over and is increasingly incompatible with the responsibility to advocate for the equal rights, and freedom from discrimination, of lesbian, gay, bisexual, transgender and intersex Australians.

I cite as evidence the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

Mr Wilson may well respond to the above description of his column by indicating he is performing his primary role, which is to advocate for traditional rights and freedoms, including the freedom of religion. I am not disputing that view.

However, I submit that, in doing so, he is not fulfilling his ‘part-time’ responsibilities, which include advocating for the removal of discrimination against lesbian, gay, bisexual, transgender and intersex people.

LGBTI Australians deserve better than to have a ‘part-time’ Commissioner for whom, when potential conflict arises between freedom of religion and their freedom from discrimination, as it does in this situation, the former takes precedence.

I urge you to reallocate the responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission from Mr Wilson to another Commissioner, hopefully to one where there is less apparent conflict between their primary role and these additional functions.

The only way in which such a conflict can be resolved on a permanent basis would be for the amendment of the Sex Discrimination Act to create, and for Government to appoint, a full-time Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the AHRC. I therefore also urge you to advocate for the creation of such a position by the Government.

Thank you in advance for your consideration of this correspondence.

Sincerely

Alastair Lawrie

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

Hon Mark Dreyfus QC, MP

Shadow Attorney-General

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 12 July 2015

Dear Mr Dreyfus

PLEASE SUPPORT THE CREATION OF A COMMISSIONER FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

Specifically, I call on you to help address one of the outstanding issues of this historic legislation – namely, the failure to create a new statutory position of Sexual Orientation, Gender Identity and Intersex (SOGII) Issues Commissioner within the Australian Human Rights Commission (AHRC).

Without such a position, the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are not being as effectively promoted as they could be, and certainly not as effectively as the rights promoted by the statutory Race and Sex Discrimination Commissioners, also within the AHRC.

For example, currently, and in the absence of a statutory position, responsibility for SOGII issues has been allocated, on a ‘part-time’ basis, to the Human Rights Commissioner, Mr Tim Wilson, whose primary role is to advocate for ‘freedoms’, meaning traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

This means that, not only do issues of discrimination that confront LGBTI Australians not receive sufficient time and resources, but they are also secondary to, and sometimes incompatible with, the promotion of other rights like the freedom of religion.

One example of this incompatibility comes from the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

In my opinion as an LGBTI advocate, it is simply not good enough that, when there is a conflict between the freedom of religion and freedom from discrimination, the person with responsibility for SOGII issues within the AHRC promotes the former at the expense of the latter.

The issues of homophobia, biphobia, transphobia and intersexphobia which confront LGBTI Australians, every day, are both real and serious. We deserve a full-time Commissioner within the AHRC to help address these problems – and certainly not a ‘part-time’, informal appointee, whose primary responsibilities can conflict with, and in some instances override, LGBTI rights.

I understand that, at the upcoming ALP National Conference in Melbourne, on July 24-26 2015, there will likely be a resolution to amend the Labor Party Platform to include a commitment to create a new Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the Australian Human Rights Commission.

This resolution is based on recent developments in Victoria, where the new Labor Government has committed to appointing Australia’s first Gender and Sexuality Commissioner within the Victorian Equal Opportunity and Human Rights Commission (VEOHRC)[5].

I call on you, as Shadow Attorney-General, to support moves to amend the Platform in this way, so that the Federal Labor Party can establish the first stand-alone SOGII Commissioner at Commonwealth level when it returns to Government.

Thank you in advance for your consideration of this correspondence.

Sincerely,

Alastair Lawrie

[1] Highs & Lows of 2013, No 2: Australia finally adopts federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex people: http://alastairlawrie.net/2013/12/26/no-2-australia-finally-adopts-federal-anti-discrimination-protections-for-lesbian-gay-bisexual-transgender-and-intersex-people/

[2] “Section 96. Sex Discrimination Commissioner. (1) There shall be a Sex Discrimination Commissioner, who shall be appointed by the Governor-General.”

[3] The Resilient Individuals Report is available here: https://www.humanrights.gov.au/our-work/sexual-orientation-sex-gender-identity/publications/resilient-individuals-sexual

[4] http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[5] VEOHRC Media Release welcoming Budget funding for this appointment: http://www.humanrightscommission.vic.gov.au/index.php/news-and-events/media-releases/item/1225-commission-welcomes-funding-for-lgbti-community-in-state-budget

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination

South Australian Law Reform Institute

c/- salri@adelaide.edu.au

Monday 6 July 2015

 

To whom it may concern,

Submission to South Australian Law Reform Institute Consultation on Removing LGBTIQ Discrimination from South Australian Laws

Thank you for the opportunity to provide this submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

While I am not a resident of South Australia, I am a passionate advocate for LGBTI rights, and I provide the following comments on possible ways to improve the legal situation of LGBTI people in South Australia, especially in terms of their protections under anti-discrimination law.

Specifically, I would like to suggest three major reforms to the South Australian Equal Opportunity Act 1984 (the ‘Act’), namely:

  1. Amend protected attributes to:
    1. Modernise wording around gender identity, and
    2. Genuinely include intersex status.

The Equal Opportunity Act 1984 currently provides protection to lesbian, gay and bisexual people through section 29 (and subsequent provisions of the Act), because of the definition of ‘sexuality’ in section 5: “sexuality means heterosexuality, homosexuality and bisexuality.”

While the SALRI may wish to consider whether to recommend amendments to the wording of these attributes (potentially to ‘sexual orientation’, to ensure consistency with the provisions of the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013), the primary concerns around protected attributes, and how they are drafted, are in respect of transgender and intersex individuals.

For example, protections for transgender people are based on the term ‘chosen gender’, which is defined under sub-section 5(5) of the Act as: “a person is a person of a chosen gender if –

  • the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex…”

Based on my understanding of transgender activism, and through recent developments of anti-discrimination law within Australia, it is highly likely that using the term ‘chosen gender’, and then defining it in this way, is not best practice.

For example, the Commonwealth Sex Discrimination Act 1984 protections are instead based on ‘gender identity’, which is defined in section 4 of that Act as: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

The Commonwealth definition appears to be significantly more inclusive, especially because it does not use descriptors such as ‘opposite sex’ and therefore avoids strict gender binaries, allowing people who do not identify as either male or female to also be protected.

I suggest the SALRI consider recommending the South Australian Equal Opportunity Act 1984 be amended to incorporate the term, and definition of, ‘gender identity’ from the Commonwealth Sex Discrimination Act 1984.

In a similar way, it is possible that the drafters of subsection 5(5) of the South Australian Equal Opportunity Act 1984 believed that they were including people with intersex variations, when they wrote: “a person is a person of a chosen gender if – …

  • the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.”

However, once again based on my understanding of intersex activism, and on recent developments in anti-discrimination law (particularly at the Commonwealth level, and more recently in Tasmania), it is clear that this definition is not best practice – and is, in fact, inadequate to ensure protection for people on the basis of intersex status.

For this reason, the SALRI should consider recommending that South Australia adopt the provisions of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which was the first anti-discrimination legislation in the world to include ‘intersex status’ as a stand-alone protected attribute.

As a result of those reforms, ‘intersex status’ is now defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as: “intersex status means the status of having physical, hormonal or genetic features that are:

  • neither wholly female nor wholly male; or
  • a combination of female and male; or
  • neither female nor male.”

Adopting this definition would ensure a far larger proportion of people with intersex variations would have protection under South Australia’s anti-discrimination laws.

Obviously, as a cisgender gay man, I am not an expert on either of the grounds of gender identity or intersex status. That is why these issues have been framed as suggestions – and if this is something that the SALRI wishes to take up in more detail, it should do so in close collaboration with South Australian and/or national transgender and intersex advocacy organisations to ensure that whatever language is ultimately adopted is the best, and most inclusive, possible.

  1. Remove broad exceptions granted to religious organisations

The current exceptions which are offered to religious organisations in the Equal Opportunity Act 1984 are overly generous, and their scope should be significantly narrowed.

Section 50 of the Act provides:

Religious bodies

1. This Part does not render unlawful discrimination in relation to –

a. the ordination or appointment of priests, ministers of religion or members of a religious order; or

b. the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

ba. the administration of a body established for religious purposes in accordance with the precepts of that religion; or

c. any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

While both subsections 50(1)(a) and (b) appear to be necessary to protect the genuine exercise of freedom of religion, subsection 50(1)(ba) would only be justified on this basis if it was limited to the operation of explicitly or overtly religious bodies (like churches) and should not apply to other institutions which may be operated by religions but which have a different primary purpose (for example, schools, hospitals, aged care services or other community services).

Subsection 50(1)(c) is also completely unjustifiable given it provides what amounts to essentially a ‘blank cheque’ to organisations that are operated by religious groups to discriminate against lesbian, gay, bisexual or transgender (LGBT) South Australians, both in employment and in service delivery.

There should not be a general right to discriminate against LGBT people, across multiple areas of public life like education, health, aged care or community services, simply because of the religious beliefs of certain individuals or organisations. LGBT South Australians deserve the right to access services, and to apply for or undertake employment, in the public sphere without the threat of being discriminated against solely on the basis of who they are.

The Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which specifically excluded religious exceptions from applying to LGBT people accessing aged care services operated by religious organisations, has successfully demonstrated that:

  1. It is possible to restrict these religious exceptions in law, and
  2. After two years of operation, there have been no practical problems in the application of such provisions.

Even more relevantly, the Tasmanian Anti-Discrimination Act 1998 has not granted explicit exceptions to protections on sexual orientation, gender identity or intersex status to religious organisations – and this approach has also worked well over the past decade.

For example, under the Tasmanian legislation, religious organisations have traditionally only been allowed to discriminate in terms of:

  1. Employment based on religion (section 51)[1] or
  2. Participation in religious observance (section 52)[2].

I suggest that the SALRI consider the long-standing Tasmanian exceptions, which do not allow for general discrimination against LGBTI people on the basis of their sexual orientation, gender identity or intersex status, but only on the grounds of religious belief or activity, as a ‘best practice’ guide to help reform the South Australian Equal Opportunity Act 1984 and therefore improve the anti-discrimination protections which are offered to LGBTI South Australians.[3]

  1. Introduce anti-vilification protections for LGBTI South Australians

The final suggestion relates to the issue of anti-lesbian, gay, bisexual, transgender and intersex vilification.

Specifically, it is to recommend the creation of anti-vilification laws, on the basis of sexual orientation, gender identity and intersex status, which are equivalent to the race-based anti-vilification provisions of the South Australian Racial Vilification Act 1996[4].

To put it bluntly, there is no justification whatsoever to have anti-vilification laws which protect people from racist vilification, but to simultaneously not have anti-vilification laws which apply to homophobia, biphobia, transphobia and intersexphobia.

Homophobia, biphobia, transphobia and intersexphobia are just as unacceptable, and, most importantly, just as harmful, as racism – with significant impacts on the mental health of young LGBTI people in particular. If, as a community, we have (or in this case, South Australia, has) resolved to outlaw racist vilification, then similar laws should also be used to outlaw homophobic, biphobic, transphobic and intersexphobic vilification.

Currently, four Australian jurisdictions (NSW, Queensland, the ACT and Tasmania) have anti-vilification laws which cover (at least some of) the lesbian, gay, bisexual, transgender and intersex communities.

However, given neither the Commonwealth Sex Discrimination Act 1984, nor South Australian law, have any vilification protections on these grounds, none of the LGBTI communities in South Australia have any legal protection from similar conduct.

This situation should change – and I suggest the SALRI recommend the creation of new anti-vilification laws which prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

The past 18 months have seen an extensive community conversation about race-based vilification laws at the Commonwealth level, and specifically whether section 18C of the Racial Discrimination Act 1975 should be repealed, amended or retained.

The outcome of this debate appears to be relatively strong community support for the retention of section 18C. As such, I believe the SALRI should take advantage of this moment to recommend that another marginalised group within Australian society should be offered the same shield against conduct which is similarly destructive.

Thank you again for the opportunity to make a submission to the South Australian Law Reform Institute (SALRI) public consultation on removing discrimination against lesbian, gay, bisexual, transgender, intersex and queer people from South Australian laws.

I look forward to the outcome of this consultation, and to the consequent improvements to South Australia’s laws – hopefully including the reforms to the Equal Opportunity Act 1984 recommended in this submission.

Sincerely,

Alastair Lawrie

[1] “Section 51: Employment based on religion.

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices or a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.”

[2] “Section 52: Participation in religious observance.

A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to –

  • the ordination or appointment of a priest; or
  • the training and education of any person seeking ordination or appointment as a priest; or
  • the selection or appointment of a person to participate in any religious observance or practice; or
  • any other act that –
    • is carried out in accordance with the doctrine of a particular religion; and
    • is necessary to avoid offending the religious sensitivities of any person of that religion.”

[3] However, I do not believe there is any reason to include the recently added, unnecessary – and unnecessarily discriminatory – provisions included in section 51A of the Tasmanian Act which state: “Section 51A. Admission of person as student based on religion.

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

[4] Section 4 of the SA Racial Vilification Act provides: “Racial vilification. A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of their race by –

  • threatening physical harm to the person, or members of the group, or to property of the person or members of the group; or
  • inciting others to threaten physical harm to the person, or members of the group, or to property of the person or members of the group.

Maximum penalty:

If the offender is a body corporate – $25 000.

If the offender is a natural person – $5 000, or imprisonment for 3 years, or both.”

Bill Shorten’s Marriage Equality Bill Second Reading Speech – The Annotated Version

When the Opposition Leader, the Hon Bill Shorten MP, gave the second reading speech on his marriage equality legislation on Monday 1 June, 2015, he omitted to mention a few key points, especially in relation to his ongoing opposition to a binding vote within the Australian Labor Party. Here is my annotated version of his speech, with some suggested additions:

“I move that the bill be read a second time.

The laws of our nation should give us hope. Our laws should tell our children what we believe. Our laws should tell strangers who Australians are. [And the issue of marriage equality tells strangers that the Australian Labor Party is, currently, unwilling to fully support the equal rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.]

Our laws should be a mirror…reflecting our great and generous country and our free, inclusive society. [But please don’t hold that mirror up to the pockets of the Party I lead that are not ‘great and generous’, but are instead mean-spirited and support the exclusion of people from an institution of love on the basis of who they are.]

And our Parliament should be a place where we make things happen rather than sit back and let them happen. On marriage equality, for too long we in this Parliament have been following, not leading. It is within our power to change this. [Despite my speech today, I have no intention of using my influence, and the power of my office as Party Leader, to pursue a binding vote in favour of marriage equality at the upcoming ALP National Conference, because that would be dangerously close to leading, not following.]

This Parliament can change a law that no longer describes modern Australia… and pass a law of which we can all be proud. [Well, most of us anyway – without a binding vote, there will be members of my Party who vote against this issue of fundamental equality, and who, by implication, should be ashamed of their actions.]

Let us delay no more. Let us embrace a definition of marriage that respects, values and includes every Australian. Let us declare, in the house of the Australian people – it is time. The right time to make marriage equality, a reality.

This is a moment bigger than politics. This moment does not distract the nation – it complements our hopes for the future. [And I will not be distracted by frankly ridiculous notions that the Australian Labor Party, should, in the future, treat this issue like nearly every other matter of public policy by having a binding position on it.]

I know all members of Parliament will engage in a respectful and considered debate, and I hope will be able to exercise a free vote. [I sincerely hope that the MPs and Senators within my own Party who oppose the human rights of their fellow citizens simply on the basis of their sexual orientation, gender identity and intersex status will be able to continue to do so.]

I pay tribute to the Member for Sydney, for offering her place on this bill to a member of the Government. Tanya, thank you. [Although my thanks do not extend to you for standing up for the principle of LGBTI equality, and for explaining, persuasively and with conviction, why it demands a binding vote, because it has shown up my own lack of leadership on the subject.]

Your actions, the advocacy of Senator Penny Wong and the goodwill of many across the Parliament, prove that bipartisanship is not the problem here. What matters is the outcome, not who owns it. [I will ensure Labor cannot ‘own it’ because its parliamentarians will remain free to vote against it.]

Madam Speaker, for decades, the march to equality has been led by remarkable Australians from every part of our country and all walks of life.

Governments from both sides of politics have delivered real progress too. The Fraser Government passed Whitlam law, decriminalising homosexuality in Commonwealth territories, following Don Dunstan’s lead in South Australia.

Paul Keating lifted the ban on Australians who identified as gay serving in our military. The Rudd and Gillard governments removed discrimination against same-sex couples from more than 80 laws.

In Victoria, the Napthine Government expunged the records of people who were charged under long-repealed homosexuality offences. Changing the Marriage Act is the next, overdue step in the path to true equality. [You didn’t really expect me to mention in this speech the ALP’s role in voting for the Howard Government’s homophobic ban on marriage equality in 2004, or the fact that its MPs and Senators were collectively bound to oppose it for the following seven and a half years,  did you?]

Madam Speaker, I’m a twin – it’s a special thing, growing up, an inseparable bond. But for other twins where one twin is gay and the other is not, the Marriage Act is the only Australian law that separates siblings.

It’s a double standard which divides families, and our country. It’s not fair and it’s not who we are. And it should change. [Although what I don’t propose to change are the rules of my Party which allow Senator J Collins to vote against it, while MP J Collins votes in favour, which mean Senator S Conroy can vote in the opposite direction to MP P Conroy, which result in Senator D O’Neill rejecting LGBTI equality even while MP C O’Neill advocates for it, and which allow Senators K Gallagher and A Gallacher’s votes to cancel each other out. That double standard will remain long after July’s ALP National Conference if I have my way.]

Currently, marriage is defined as: ‘the union of a man and a woman.” Those eight words maintain a fiction that any other relationship is somehow inferior. [A fiction which some Labor parliamentarians will be free to continue, not just to believe, but to actively try to impose on their fellow citizens.]

Our legislation proposes a new definition: ‘the union of two people.’ And it allows celebrants the choice of referring to ‘partners’, as well as husband and wife.

To some, this may seem a small gesture. In truth, this means so much, to so many. To all lesbian, gay, bisexual, transgender and intersex Australians, we offer change that says: your relationship is equal under the law. [Please note, however, that conditions DO apply: you can only redeem this offer in the electorate offices of about four fifths of ALP MPs and Senators around the country.]

To the parents, children, friends and families of same-sex partners, just as the people you love are equal and valuable in your eyes, their relationship should be equal and valuable in the eyes of our law. To same-sex couples, we offer the right to celebrate your love with the public measure of devotion: marriage.

When someone has found not just another person they can live with, but a person they can’t live without, then they should have the same right to the true qualities of a bond that runs deeper than any law. [Unlike the bonds of a political party, with a long history of solidarity and collective action, which I am prepared to ignore in order to allow some parliamentarians to cast their votes against your right to marriage.]

The same joy and sacrifice. The same care and compassion. The same rights and responsibilities. And we say to all young gay people. We are proud of you, for who you are. You belong. [Although some of us are less proud of you than others, and some of us don’t think you belong in a wedding ceremony at all.]

We say to you, you have a right to the same hopes, dreams and opportunities as every other Australian including the right to marry the person you love. [But individual ALP parliamentarians also have the right to crush those hopes and dreams, and limit those opportunities, solely because of who you are.]

In removing discrimination from our country’s laws, we strive to eliminate prejudice from our people’s lives. [Just not entirely eliminating it from our caucus room.]

Let’s be honest. Casual, unthinking discrimination and deliberate, malicious homophobia alike, are still far too common in our conversations. In our schoolyards, our workplaces and our sporting clubs…and even, occasionally, our Parliament too.

This affects community, neighbourliness, harmony and mental health in our cities and especially our regions and the bush where physical remoteness can aggravate a sense of isolation.

We know two out of five young Australians who are gay have thought about self-harm or suicide. Two out of every five. [We also know that about one out of every five ALP parliamentarians will likely be voting against the equal rights of LGBTI people, and sending the message that who you are is less than, worse than, cisgender heterosexual people.]

We know a young Australian who identifies as gay is six times more likely to consider taking their own life, compared to their sibling, classmate, colleague or teammate. Six times.

When I was finishing school in the 1980s, youth suicide was still a taboo topic. I can remember hearing of the passing of young men, and no-one spoke of how they died. I can close my eyes and see their faces, forever young.

And I wonder now, if for some, the stigma and the struggle of imagining a future, lonely, isolated, treated differently was too much to bear. Marriage equality says to young people who identify as gay, you are never alone. You belong. [I am sincere in this belief, and about the need to address youth LGBTI-related mental health issues, and the tragedy of suicide. I just can’t sincerely say I am doing everything in my power to support marriage equality.]

This is an act of fairness for all ages. On the weekend, I spoke with Sandra Yates, from Devonport in Tassie. Like hundreds of other Australian couples, she and her partner Lee Bransden have been forced to travel to New Zealand to marry.

Sandra and Lee had hoped to marry at home surrounded by friends and family but Lee is terminally ill, and has been told she only has weeks to live. Their community raised money to fund their trip and fulfill their dream.

They are thrilled to be married…and sad it couldn’t happen here, in the country they love. [And I am genuinely sad about this situation, too – just not enough to try to override the right of Chris (Hayes) & Joe (Bullock) to vote against Sandra & Lee.]

Lee’s voice should be heard in this place: “Please, help switch on the light for same-sex couples and take us out of the darkness.” [But don’t make the light too bright, lest it expose the darkness in the hearts and minds of some of our MPs and Senators.]

Lee, Sandra, you, your friends and families should not have to wait one day longer for recognition. And this legislation will ensure that same-sex marriages, recognised in another country, are recognised here.

A law that forces our citizens to travel overseas, or to the grounds of another nation’s embassy, to have their relationships recognised is a law not worth keeping. [Unless enough individual parliamentarians think it is worth keeping, in which case, well, I guess that’s fine by me.]

I have not made a habit of speaking publicly about my faith, and I do not seek to preach to others today. I do believe in God and I do believe in marriage equality. For me, there is nothing contradictory about extending love, compassion, charity and respect beyond heterosexual Australia.

I understand, that for many people of different faiths, this is a complex question, I respect this. It is why I support a free vote. [Let’s be honest again, while exactly zero of the many Bills proposing marriage equality to date impose any obligation on religions, or religious organisations, to recognise marriage equality, I am willing to allow individual MPs and Senators within the Labor Party to attempt to impose their own religious definition of marriage onto 23 million other Australians. Their personal opinions are clearly more important than the freedom of religion, and from religion, of everyone else.]

And why this legislation makes it clear that no minister of religion can be compelled, or is obliged, to conduct a particular marriage…including one where two people are of the same sex. All ask in return that this respect be mutual.

Just as churches, mosques, temples and synagogues of all faiths and traditions will be free to choose if they consecrate same sex marriages. Let the same respect allow Australians to freely choose who they marry, without vilification or judgment. [Unfortunately, I know that this respect will not be mutual within my own Party. There will be some ALP parliamentarians who will continue to judge, and in some cases vilify, LGBTI-relationships as second class – and, no, I am not prepared to directly challenge them, and their outdated beliefs, by seeking to bind them to vote in favour.]

So often in our history, Australia has led the world in social and economic progress. The right to vote, pensions, the eight-hour day. Our healthcare and superannuation systems are among the best in the world. But on marriage equality, we have fallen behind. [And my own Party has played its part in this state of affairs, both in the good, and also in the bad.]

Like so many Australians, two Sunday mornings ago, when I first heard the result of the Irish referendum I thought: if the Irish can do it, why can’t we? How can Ireland, New Zealand, 37 US States, England, Scotland, South Africa and Canada and Brazil, Iceland and Uruguay be ahead of us? [Of course this is a rhetorical question only – please don’t point out that, if the ALP had adopted a binding vote in 2011, marriage equality would have passed three years ago, and this entire debate now would, thankfully, seem faintly ridiculous.]

Twenty countries have already recognised the merit of marriage equality. I am confident Australia will. [But without a binding vote, I cannot confidently say that a newly-elected Labor Government under me would definitely be able to pass it.]

I don’t want us to wait, any longer. We cannot assume this change is inevitable. We cannot imagine it will just happen. We, the 44th Parliament, we have to step up, to rise to the moment. [Unless that involves stepping up by voting for equality, 100%, in which case I say, ‘yeah, nah’.]

Today, is neither the beginning, nor the end, of the journey to marriage equality. [The next logical step on my side of the political aisle would be the adoption of a binding vote at the ALP National Conference in July, although I have already made it clear I do not want that to happen.]

But I hope…with goodwill on all sides, with co-operation, with respect for one another this can be a historic step forward. Given a free vote, I believe this Parliament is ready for a definition of marriage which reflects the modern, inclusive and egalitarian Australia we love. [It would of course be even more ‘ready’ with an extra half-dozen or more votes in favour of change in both chambers – and, if it falls short by that margin or less later in the year, then I will have to accept at least some of the responsibility for that.]

We are ready to be as generous and kind-hearted as the Australians who trust us. Millions of Australians have waited long enough for this act of justice and inclusion. [And I am proud to say a large majority of the Party I lead will vote to deliver it – expect of course for those who don’t. They’ll be free to continue to support injustice and exclusion, on the basis of their personal opinion.]

The opportunity of a generation is before us now. The moment is here. Let this law reflect the nation we want to see in the mirror: generous, smart, modern, diverse, honest and, above all, equal. Let’s switch on the light. [The light has a dimmer switch installed, however, and its brightness is reduced by the proportion of ALP MPs and Senators who vote no. Until we have a binding vote on LGBTI human rights, our Party’s famous ‘light on the hill’ will shine less brightly for lesbian, gay, bisexual, transgender and intersex Australians.]

Let’s make 2015, the year when Australia embraces marriage equality. Let’s make it happen, together. It’s time. [Please, Tony, please, help pass marriage equality this year, because if it doesn’t succeed then people might question why I didn’t do everything I could to support it. If I did I would be writing a very different kind of speech, to deliver at the ALP National Conference in 6 weeks’ time, one that ended with a much stronger invocation of Gough’s message of hope: It’s Time. It’s Time to Bind.]

Opposition Leader Bill Shorten, who personally supports marriage equality, but opposes making that position binding on his Labor Party colleagues.

Opposition Leader Bill Shorten, who personally supports marriage equality, but opposes making that position binding on his Labor Party colleagues, unlike nearly every other public policy issue on which the ALP does adopt a binding vote.

What Tony Burke gets right, and what Anthony Albanese gets wrong, about Marriage Equality

Let’s be honest, when I started this blog almost three years ago, that’s not a headline I ever imagined writing.

And nor is the following sentence – thank you Tony Burke for committing to vote for marriage equality the next time it comes before Federal Parliament.

Mr Burke’s announcement last Sunday (24 May)[i], that his “stance on this issue has developed considerably since the last time we voted on marriage equality” (September 2012), was, to say the least, unexpected.

It is also incredibly useful.

Not just because his vote in the House of Representatives will come in handy later in 2015, when, as seems likely, marriage equality will have its best chance of passage this term.

But also because, as a right-wing MP, and someone who is factionally-aligned with the Joe De Bruyn-led SDA, Mr Burke has demonstrated that even people who have traditionally opposed LGBTI equality can recognise that marriage equality is both a social good, and inevitable.

Indeed, it has been a long journey from voting against an equal age of consent in 2003 when he was a NSW Upper House MP, to supporting the equal right to marriage irrespective of sexual orientation, gender identity or intersex status.

If Mr Burke can make that journey, then so can his factional colleagues. He has set a powerful precedent that people like Senator Joe Bullock should follow.

Nevertheless, the most important part of Mr Burke’s conversion was the statement announcing his change of heart in which he inadvertently makes an excellent case for a binding vote within the ALP.

This is because he makes it very clear that there is no intellectual basis to vote against equality.

First, as marriage equality advocates have argued consistently from the very beginning, Mr Burke acknowledges that changing the marriage law will affect nobody other than the additional people who would be allowed to marry.

From his statement:

“The time has now come for the conversation in communities like mine to move to the fact that this change will occur. We need to get to the next stage of the conversation to explain why those who do not want the change will be unaffected by it” (emphasis added).

“The laws around the care of children have already changed. The laws around the treatment of de-facto relationships have already changed. These all occurred with little fanfare. They delivered a benefit to those who were directly affected and went largely unnoticed by those who might otherwise thought to object.”

And he reiterated that “[t]hose who want to marry will be able to do so. Those who do not want the change will be unaffected by it.”

Second, Mr Burke also made it very clear that the recognition of marriage equality in Commonwealth law would have exactly zero negative impact on religious freedom.

Again, from his statement:

“It is a long time since the law of marriage matched the various religious views of marriage. There are some laws that precisely match principles that are enshrined in religious faith. There are other religious principles such as turning up to a church, mosque, temple or synagogue each week which no one in Australia would remotely suggest should be enshrined in law.”

The various religious faiths will continue to have their own views and rules around marriage. The law of Australia needs to respect the freedom of people to practice their faith and it will” (emphasis added).

“But the days when the law of Australia can limit access to marriage in ways that are so far removed from the modern community view have long since passed.”

So, according to Mr Burke’s own words:

  • This reform affects no-one other than lesbian, gay, bisexual, transgender and intersex Australians who are currently prohibited from marrying but, if marriage equality passed, would finally be allowed to do so, and
  • This reform has absolutely no adverse impact on freedom of religion.

If that is the case, and it should be said I agree with his assessments, then on what possible basis can anyone argue there should be a conscience vote within the Australian Labor Party on this issue, rather than a binding one?

Answer: they can’t.

Perhaps, then, as well as outlining to the citizens of Watson why he supports marriage equality, Tony Burke could also spend time between now and the ALP National Conference in July with some of his factional colleagues “explain[ing] why those who do not want the change will be unaffected by it.”

Tony Burke, an accidental advocate for a binding vote on marriage equality.

Tony Burke, an accidental advocate for a binding vote on marriage equality.

At the other end of the ALP’s factional spectrum, another Anthony made his own contribution to the marriage equality debate this week.

On Tuesday, senior Left figure and long-time marriage equality supporter Anthony Albanese made a ‘constituency statement’ to the House of Representatives following the victory for equality in the Irish referendum[ii].

In it, the Member for Grayndler reiterated his personal support for LGBTI equality, by noting that:

Giving one group of people the rights they have been denied does not, in any way, diminish the rights that currently exist for the rest of us” (emphasis added).

“I fail to see how the institution of marriage is weakened if more people have the right to participate.”

Which, like Mr Burke, is a welcome recognition that marriage equality would not directly affect anyone outside those who would now be able to participate in it (and of course their family and friends who would be able to join them for their celebrations).

If only ‘Albo’ had left it at that.

Instead, he went on to attempt to make the case for a conscience vote within the Australian Labor Party. And in doing so, he made a number of unfortunate errors.

Mr Albanese started by saying that “I strongly believe there should be a vote in this Parliament this year. It should be a conscience vote. That would enable parliamentarians to have a mature debate in both the House of Representatives and the Senate.”

“Whilst I have strong views in support of marriage equality, I respect those who hold a different view. You cannot promote diversity and tolerance whilst not showing tolerance for those who disagree with you” (emphasis added).

Leaving aside his implication that the only way to have a mature debate on an issue in Parliament is through a conscience vote (and if that is the case, I assume he will be moving to make all ALP positions conscience votes in future), Mr Albanese then mischaracterises marriage equality as concerning ‘tolerance and diversity’ rather than something more profound – the fundamental equality of lesbian, gay, bisexual, transgender and intersex Australians.

Perhaps he should have listened to his factional colleague from the neighbouring seat of Sydney, Tanya Plibersek, when, back in April, she framed the issue in this way:

“Labor has always been a party that is opposed to discrimination… It is a clear question. Do we support legal discrimination against one group in this country? Or do we not?”[iii]

Viewed like this, while we can all acknowledge and respect the fact that ALP MPs and Senators have a diversity of views about marriage equality (and that those opposed shouldn’t be chased with pitchforks for holding that opinion), that alone is not sufficient justification to allow individual parliamentarians to actually vote against the legal equality of their fellow citizens on the basis of their sexual orientation, gender identity or intersex status.

Mr Albanese, as a stalwart of the Left, should understand that a very high threshold is required in order to abandon the standard operating procedure of a political party based on solidarity and collective action – and simply invoking the words ‘tolerance and diversity’ in a speech doesn’t even come close to clearing it.

Albo went on in his statement to claim that: “I have argued consistently that the Coalition needs to allow a conscience vote on this issue. It is inconsistent to argue something different within the Labor Party.”

Which many people might think is a reasonable point to make but, upon further analysis, is also not true.

As both Mr Burke, and Mr Albanese in his own speech, have made abundantly clear, the only people directly affected by marriage equality are LGBTI couples.

In that context, it is entirely rational to say that nobody should be compelled to vote against the equality of their fellow citizens. Which is justification to argue that the Liberal Party should move from a bound vote against marriage equality, to allowing their parliamentarians to have a conscience vote on this issue.

But there is no equivalent argument the other way – if legalising marriage equality does not negatively impact on anyone else, including those with strong religious views on the subject, there is no valid reason why an MP or Senator should not be compelled to vote for it.

And, as something that would help achieve legal equality for a marginalised group in society, there is a case for compelling parliamentarians to vote in favour.

Which provides the justification to simultaneously argue for a bound vote in support of marriage equality within the Australian Labor Party – a position that would also be consistent with how the Party approaches 99.9% of issues that come before Parliament.

Therefore, arguing for a conscience vote within the Liberal Party and a bound vote within Labor isn’t ‘inconsistent’ – in fact, it is philosophically sound, because both are in pursuit of fundamental human rights.

Unfortunately, the calibre of Mr Albanese’s argument only goes down from there. From his statement:

“In 2002, as a member of the ALP National Executive, I dealt with a report to resolve the issues surrounding the use of conscience votes in a process which included Labor’s pre-eminent authority on our internal history and processes John Faulkner.”

“There have been conscience votes on a range of issues over the year [sic] including the Family Law Bill 1974, euthanasia in 1996 and the Marriage Bill (1961).”

“The ALP National Executive decided unanimously that “the most appropriate model is the case-by-case, political model, but with consideration and tolerance of other factors relating to religion, the party platform and precedent.””

First, it is pretty brazen of Mr Albanese to name-check my old boss, former Senator John Faulkner, and his involvement in an internal 2002 process which looked at conscience votes within the ALP, thereby potentially encouraging readers to assume he would agree with him on this issue today.

The exact opposite is true – when the question of a conscience vote versus binding vote was debated at the 2011 ALP National Conference, in Albanese’s words “Labor’s pre-eminent authority on our internal history and processes” was one of the most passionate speakers in favour of a bound position.

In his speech, which is accessible on YouTube (and which I highly recommend watching[iv]), Senator Faulkner powerfully argued that “I take the view that a conscience vote on human rights is not conscionable.”

Second, simply citing 20th century examples of ALP conscience votes was not persuasive when then Prime Minister Julia Gillard adopted this tactic at the same Conference[v], and it is equally unpersuasive when used by Mr Albanese now.

How are conscience votes from 54 years ago, and 41 years ago, respectively, particularly relevant when determining what to do on this issue now? After all, marriage has changed enormously from the time Robert Menzies or Gough Whitlam occupied the Lodge.

One example: even in the past two decades, the proportion of people married by civil celebrants has risen from 42.1% in 1993, to 72.5% in 2013[vi]. It is clear that the Australian population has moved on from seeing marriage as a religious institution.

And it is also difficult to see how the ALP’s approach to the Marriage Act in 1961 – which was 14 years before the first Australian jurisdiction even legalised homosexuality – or in 1974 – which was 34 years before the recognition of same-sex de facto relationships in Commonwealth law – have all that much to say about how Labor should approach the question of lesbian, gay, bisexual, transgender and intersex equality today.

But perhaps most pertinently, why did both Prime Minister Gillard and Mr Albanese completely overlook the ALP’s much more recent, and directly relevant, history of a binding vote on marriage equality, from August 2004 (when it supported Howard’s homophobic ban on marriage equality) until December 2011?

The issue of marriage equality didn’t fully emerge on the international stage until the Netherlands became the first country to introduce it in April 2001. In the 14 years since then, the ALP has had no formal position for three years, a binding vote (opposing marriage equality) for seven and a half, and a conscience vote for only three and a half.

This shows that, if we are to look to the ALP’s past for an answer to this ‘dilemma’, there is much more of a precedent for binding on this issue than there is for a conscience vote.

Third, and finally, even applying Mr Albanese’s own test – “the case-by-case, political model, but with consideration and tolerance of other factors relating to religion, the party platform and precedent” – a binding vote in favour clearly passes it.

Politically, the vast majority of the population, Labor voters, the ALP membership and the caucus all support marriage equality, and nearly all of them (us) have long since reached the point of frustration, simply wanting our parliamentarians to ‘just pass the damn thing already’.

A binding vote on this issue would demonstrate to everyone that Labor takes this issue seriously, and will do everything within its own power to ensure it becomes law.

As we have already seen, it also satisfies the ‘religion’ criteria – remembering even Tony Burke argued that “[t]he various religious faiths will continue to have their own views and rules around marriage. The law of Australia needs to respect the freedom of people to practice their faith and it will” (emphasis added).

As for the Party platform – well, we amended that to support marriage equality at the National Conference in 2011, and there does not appear to be any substantive reason for making support for that part of the platform ‘optional’ on the part of MPs and Senators.

And, as described above, a binding vote on marriage equality would be in line with historical precedent, with the ALP having already adopted a bound position from 2004 to 2011.

Does Anthony Albanese's argument for a conscience vote pass his own test? Nope, nope, nope.

Does Anthony Albanese’s argument for a conscience vote pass his own test? Nope, nope, nope.

All-in-all then, it is fair to say that Mr Albanese’s arguments for a conscience vote are unimpressive – and certainly far less impressive than Mr Burke’s rhetoric.

Although, it should be acknowledged here that making such a distinction between the two is somewhat of a false dichotomy.

Despite observing that marriage equality does not directly affect anyone outside LGBTI Australians, and certainly has no impact on freedom of religion, Mr Burke does not follow his own arguments through to their logical conclusion.

Instead, Mr Burke too believes that the right of his parliamentary colleagues to vote against marriage equality is more important than the right of lesbian, gay, bisexual, transgender and intersex Australians to actually get married.

Which means that, in substance, both Mr Burke and Mr Albanese are half-right and half-wrong.

Half-right, to personally support marriage equality and to commit to voting that way when it next comes before the Parliament.

Half-wrong, to argue that the fundamental human rights of LGBTI Australians are not worth binding for.

It is the same half-right/half-wrong position the Australian Labor Party as a whole has adopted since the 2011 National Conference, when delegates voted overwhelmingly to change the Platform to support marriage equality, but also voted (albeit much more narrowly) to make the issue subject to a conscience vote.

The delegates to this year’s Conference, to be held in Melbourne in about eight weeks’ time, still have the chance to change that equation, and ensure that, on marriage equality, our Party finally gets it completely right – that, to adapt the words of Ms Plibersek:

Labor has always been a party that is opposed to discrimination. When asked the clear question whether we support legal discrimination against one group in this country or not, the answer is an unequivocal no.

If we seize this opportunity, and make support for marriage equality binding on our parliamentarians, then it will be a proud moment in our Party’s history.

But not nearly as proud as being able to say, whenever marriage equality finally passes the Commonwealth Parliament, that members of the Australian Labor Party voted unanimously in support.

There’s still time to make that happen. There’s still time to bind.

[i] Full text of Mr Burke’s announcement here: http://www.tonyburke.com.au/tonystaff/statement_24_may_2015

[ii] Full text of Mr Albanese’s constituency statement here: http://anthonyalbanese.com.au/constituency-statement-marriage-equality

[iii] From the Sydney Morning Herald, 27 April, “Plibersek push to make Labor MPs vote for same-sex marriage”: http://www.smh.com.au/federal-politics/political-news/plibersek-push-to-make-labor-mps-vote-for-samesex-marriage-20150427-1mteon.html

[iv] To view Senator Faulkner’s 2011 National Conference Speech, go here: https://www.youtube.com/watch?v=MmiIFvxbh8c

[v] Full text of Prime Minister Gillard’s speech against a binding vote at the 2011 ALP National Conference here: http://www.theaustralian.com.au/archive/national-affairs/julia-gillards-address-to-the-alp-national-conference-on-a-conscience-vote-for-gay-marriage/story-fnba0rxe-1226213001184

[vi] From the Australian Bureau of Statistics, Marriages and Divorces, Australia: http://www.abs.gov.au/ausstats/abs@.nsf/mf/3310.0