Submission re 2020 ALP National Platform – Consultation Draft

30 November 2020

ALP National Policy Forum

Lodged online: https://www.alp.org.au/platform-consultation-draft/

To members of the ALP National Policy Forum

Submission re 2020 ALP National Platform – Consultation Draft

I am writing to provide my individual feedback on the 2020 ALP National Platform, as released for public consultation.

I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, and as someone who was responsible for providing wording on multiple policy issues which were included in the 2015 National Platform (many of which were retained in the 2018 National Platform, although most have subsequently been excluded from the current version).

I acknowledge the intent of the Consultation Draft: ‘A Platform of this kind would be much more significant and carry much more weight. But it also needed to be much shorter’ [emphasis added]. This is reflected in the abbreviated document released this year: at 96 pages, it is just over one-third the length of the 2018 version (which was 268 pages, plus the Party’s constitution).

However, Labor’s LGBTIQ policy commitments have been reduced by much more than this ratio. Indeed, it would not be an exaggeration to say that the LGBTIQ content of the 2018 National Platform has been gutted in the 2020 Consultation Draft.

At a simplistic level, this can be seen in the decline in usage of the term LGBTIQ itself: from 45 times in the 2018 National Platform, to just six times in the 2020 consultation draft. This is a massively disproportionate reduction.

But this decline is much more than just the use of fewer words. This reduction represents large, and substantive, cuts to the ALP’s policy commitments to achieving LGBTIQ equality. The LGBTIQ community should be alert and alarmed about the potential for the Labor Party to walk away from its previous policies to improve the lives of LGBTIQ Australians.

In this submission, I will start by focusing on four particular, and particularly-important, issues (three where previous commitments have been abolished entirely, and one where the proposed commitments are seriously inadequate) before providing comments on the specific chapters of the Consultation Draft, as well as the statements in detail.

  1. Ending Coercive Medical Interventions on Intersex Children

In my view, the most egregious human rights abuses against LGBTIQ people in Australia are the ongoing coercive medical interventions, including surgical and hormonal interventions, to alter the sex characteristics of children born with intersex variations.[i]

For this reason, the inclusion of this commitment, on para 75 on page 144 of the 2018 National Platform, was welcome:

‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’

Conversely, the removal of this policy, and the total absence of any equivalent commitment to preventing involuntary medical treatments on intersex kids in the 2020 Consultation Draft, are deeply worrying.

I strongly urge the National Policy Forum, and ALP generally, to recommit to ending these abhorrent and harmful practices, by including the following statement (as proposed by leading intersex advocate Morgan Carpenter):

Recommendation 1.

‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons’ right not to undergo sex ‘normalisation’ treatment. Labor commits to supporting the development and implementation with community participation of human rights-affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’

2. Removing out-of-pocket costs for trans and gender diverse healthcare

Another significant issue for Australia’s LGBTIQ community where the 2020 Consultation Draft represents a backwards step compared to the 2018 National Platform is removing out-of-pocket costs for trans and gender diverse healthcare. Paragraph 74 on page 144 of the 2018 document previously provided that:

‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Costs should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’

Once again, there is no equivalent commitment in the 2020 Consultation Draft. Instead of axing this policy, I believe the Labor Party should be strengthening its commitment, by including a modified version of the above paragraph:

Recommendation 2.

‘Labor supports the rights of trans and gender diverse people to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming treatment, including surgery. Costs should not be a barrier to accessing these services. Labor commits to overcoming these barriers by removing out-of-pocket costs for trans and gender diverse healthcare.’[ii]

3. Restate commitment to ending the HIV epidemic

Perhaps the most surprising omission in the 2020 Consultation Draft is the complete exclusion of any and all references to HIV, likely for the first time in decades. In the midst of the coronavirus pandemic, it seems strange to remove commitments to addressing the HIV epidemic, especially when lessons from our best practice approach to HIV are valuable in responding to COVID-19 – and, above all, when the HIV epidemic is ongoing.

I note that paragraphs 103 and 104 on page 150 of the 2018 National Platform included the following:

‘Labor has a proud record in HIV policy. Bipartisan national leadership in partnership with affected communities and other organisations, clinicians and researchers has prevented a generalised epidemic.

‘HIV notifications, however, remain too high. Labor is especially concerned that HIV notifications have steadily increased among Aboriginal and Torres Strait Islanders and are now double the rate of other Australians. Notwithstanding these challenges, Australia has an unprecedented opportunity to end HIV transmission. Labor commits to the United Nations Political Declaration on HIV and AIDS, which provides the global framework for action on HIV, including through the UNAIDS Fast-Track 95-95-95 targets to end the HIV epidemic. Labor’s commitment to making HIV history will include restoring the capacity that the Liberals have cut from HIV peak organisations; funding new efforts to promote HIV prevention, testing, and treatment in ‘hidden populations’; and ensuring affordable access to pre-exposure prophylaxis (PrEP) via the PBS.’

Recommendation 3.

The National Policy Forum should restate the ALP’s commitment to ending the HIV epidemic, and consult with the Australian Federation of AIDS Organisations (AFAO), National Association of People with HIV Australia (NAPWHA), and leading HIV advocates and experts, on what specific policy proposals are required to achieve this in the 2020s.

4. Improving LGBTI anti-discrimination protections

One area where the ALP’s commitments have not been completely removed (although some have nevertheless been excised) – but where the 2020 Consultation Draft remains highly deficient – is the issue of LGBTI anti-discrimination law reform.

Paragraph 30(b) on page 53 includes the following, general and very high-level statement: ‘Labor will work closely with LGBTIQ Australians to develop policy to… strengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status.’

While obviously welcome, the lack of specificity in this paragraph means it is unclear what position a future Labor Government would take on a range of important measures that fall within this over-arching statement, including:

  • Protecting LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protecting LGBT employees and people accessing services in relation to other religious organisations delivering public services like healthcare, housing and accommodation, and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Updating terminology in anti-discrimination legislation, including replacing the protected attribute of intersex status with ‘sex characteristics’, as advocated by Intersex Human Rights Australia and in the March 2017 Darlington Statement
  • Introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, on an equivalent basis to existing racial vilification prohibitions in the Racial Discrimination Act 1975 (Cth) (with the necessity of this reform highlighted by the homophobia, biphobia, transphobia and intersexphobia whipped up by the Liberal/National Government’s unnecessary, wasteful and harmful 2017 same-sex marriage postal survey),[iii] and
  • Appointing an LGBTIQ Commissioner within the Australian Human Rights Commission (noting that paragraph 90 on pages 213-214 of the 2018 National Platform included a commitment that: ‘Labor will… [e]stablish under the Australian Human Rights [Commission] Act 1986 a new Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, to work across government and the private sector to reduce discrimination’).[iv]

Another LGBTI discrimination-related issues which is not addressed in the 2020 Consultation Draft is the fact neither gender identity nor sex characteristics are explicitly included as protected attributes in the Fair Work Act 2009 (Cth), leaving trans, gender diverse and intersex employees with uncertain workplace rights, including unclear protections against adverse action and unlawful termination.[v]

Perhaps most concerningly, at least in the short term, the 2020 Consultation Draft does not express a position on the Commonwealth Government’s proposed Religious Discrimination Bill, legislation that would significantly undermine the rights of lesbian, gay, bisexual, transgender, intersex and queer Australians to engage in public life without fear of discrimination.

I strongly urge the National Policy Forum to take a stand on this issue, and in particular to commit to only supporting anti-discrimination laws covering religious belief and activity where they do not undermine the rights of others, including women, LGBTIQ people, people with disability, single parents, divorced people and even people of minority faiths.[vi]

Recommendation 4.

‘Labor will work closely with LGBTIQ Australians to develop policy to strengthen laws and expand programs against discrimination, harassment and vilification on the basis of sexual orientation, gender identity, sex characteristics and queer status, including by:

Amending the Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth) and related laws to:

  • Protect LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
  • Protect LGBT employees and people accessing services against discrimination by religious organisations delivering public services including healthcare, housing and accommodation and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
  • Update the protected attribute of intersex status to sex characteristics
  • Introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics, and
  • Appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.

Amending the Fair Work Act 2009 (Cth), to explicitly include gender identity and sex characteristics as protected attributes, including for the purposes of adverse action and unlawful termination provisions.

Only supporting the introduction of Commonwealth anti-discrimination legislation covering religious belief and activity where it does not undermine the rights of women, LGBTIQ people, people with disability, single parents, divorced people, people of minority faiths and others to live their lives free from discrimination.

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I will now provide specific comments in relation to the individual Chapters of the Consultation Draft (where relevant), as well as the Statements in Detail.

Chapter 1: Building Australia’s Prosperity

No comments.

Chapter 2: Developing Our People

On page 22, at paragraph 8, the sentence ‘Labor will continue to support policies that aim to remove remaining barriers, including those based on gender, age, race, ethnicity, sexuality or disability status’, should be amended to also include gender identity and sex characteristics.

On page 23, at paragraph 19, I note this would be an appropriate place to include the commitment to explicitly protect gender identity and sex characteristics in the Fair Work Act 2009 (Cth) (as outlined as part of recommendation 4, above).

I also suggest the National Policy Forum include a commitment here that the ALP will work with trans and gender diverse communities to introduce workplace entitlements to paid transition leave, to help support increased participation by trans and gender diverse Australians in the workforce.

On page 29, at paragraph 63, I note the detailed commitments around the national curriculum no longer include the following policy from page 150, paragraph 109 of the 2018 National Platform:

‘Labor will ensure sex education includes all sexualities and gender identities. Labor will ensure the sex education curriculum is kept up-to-date and reviewed regularly by both non-government organisations and experts working in LGBTI health.’

I urge the National Policy Forum to reinstate a commitment to ensuring the national curriculum, including the health and physical education curriculum, is inclusive of LGBTI students and has content relevant to their needs.

Chapter 3: Climate Change, Energy and the Environment

No comments.

Chapter 4: A Strong and Healthy Society

On page 42, after paragraph 21, I note this would be an appropriate place to include a restated commitment to ending the HIV epidemic, and associated policy proposals as agreed with AFAO, NAPWHA and others (as detailed at Recommendation 3, above).

Chapter 4 would also be an appropriate location for a strengthened policy to remove out-of-pocket costs for trans and gender diverse healthcare (as outlined at Recommendation 2).

Finally, I note the 2018 National Platform included a commitment to ‘develop a national LGBTIQ health plan, to [among other things] address the particular health needs of LGBTIQ people, working in partnership with these communities and LGBTI health bodies.’

I believe the National Policy Forum should reinstate this commitment, given ongoing health issues across the LGBTIQ community, including in relation to mental health. 

Chapter 5: An Equal and Inclusive Nation

I note the section ‘Equal rights for LGBTIQ Australians’ would be an appropriate place for the contents of Recommendation 4 described above to be included (and in particular replacing paragraph 30(b) on page 53).

I further note the LGBTIQ health-related commitments in paragraph 30(c) are not a substitute for a national LGBTIQ health plan (mentioned in relation to the previous chapter), while policies to support national intersex-led organisations in paragraph 30(d) do not obviate the need for specific policies to end involuntary medical interventions on intersex children (as called for in Recommendation 1 of this submission).

In terms of paragraph 30(e), and its commitments in relation to trans and gender diverse identity documentation, I note major problems still exist at state and territory level, and especially in NSW, Queensland and Western Australia.[vii]

The National Policy Forum should be urging Labor Governments in Queensland and Western Australia to urgently amend their respective births, deaths and marriages laws to allow trans and gender diverse people to update their identity documents on the basis of self-identification, without the need for surgery or other medical approval or ‘gate-keeping’.

Similarly, the NSW Labor Opposition should be encouraged to support equivalent reforms there – and, if the NSW Liberal/National Government does not progress these changes, for Labor to introduce them in the first 100 days of any incoming administration.

I have two particular concerns about paragraph 31 on page 53, which currently reads:

 ‘Labor will ensure schools are welcoming and supportive environments for all students and teachers, regardless of their gender identity and sexuality. We will support programs that promote understanding, tolerance and respect for every student.’

First, this commitment could be strengthened to provide absolute certainty that it applies to all schools: government, private and/or religious.

Second, the commitment in the second sentence is a significantly watered-down version of the position in the 2018 National Platform (paragraph 60 on page 119):

‘Schools must be safe environments for students to learn and for teachers to teach – including same sex attracted, intersex and gender diverse students and teachers. Labor will continue working with teachers, students and schools to stop bullying and discrimination, ensuring a safe place for LGBTI students to learn by properly resourcing inclusion and anti-bullying programs and resources for teachers. Labor will continue to support national programs to address homophobia, biphobia, transphobia and anti-intersex prejudice in schools. This includes ensuring gender diverse students are able to express the gender they identify with.’

I believe the 2020 version, and its absence of specific support for targeted programs addressing homophobia, biphobia, transphobia and intersexphobia, underestimates the prevalence of such discrimination, and the harms that continue to be caused to LGBTI students.

Recommendation 5.

Paragraph 31 on page 53 be replaced with the following:

‘Labor will ensure all schools are welcoming and supportive environments for all students, teachers and other staff, regardless of their sexual orientation, gender identity and sex characteristics. We will support programs that promote understanding, acceptance and respect for every student, including programs to specifically address homophobia, biphobia, transphobia and intersexphobia.’

In my view, paragraph 32 on page 54, is also deeply flawed, this time for three reasons. First, as survivors have consistently advocated, bans on ‘reparative’ or conversion practices must be exactly that – aimed at practices, rather than the much more limited, and potentially only health-related, ‘therapies’.

Second, it must capture both sexual orientation and gender identity conversion practices (rather than just ‘gay conversion’).

Third, I am concerned that the wording ‘will work with advocates to ensure people are not coerced into undergoing such therapies’ potentially misses the point – it is not just ‘coercion’ that is the problem, it is the practice itself. Policies in this area should be aimed at banning sexual orientation and gender identity-change practices broadly, not just ‘coercion’ into undergoing these practices.

Recommendation 6.

The National Policy Forum consult with survivors of conversion practices in relation to the commitments in paragraph 32 on page 54, and in particular to ensure that:

-It applies to conversion practices (and not just therapies)

-It includes both sexual orientation and gender identity conversion practices, and

-It bans the practices themselves, rather than preventing ‘coercion’ into undergoing such practices.

I am also concerned at the wording on paragraph 33 on page 54, which is an abbreviated form of the commitment at paragraph 105 on page 233 of the 2018 National Platform. In particular, in my view the abbreviation has omitted the more important part of that policy, namely:

‘Labor will work first with our Pacific neighbours, our Indo-Pacific region and the nations of the Commonwealth to encourage the repeal of discriminatory laws, especially criminal laws against homosexual sexual conduct and most urgently against such laws where they impose the death penalty, and will encourage steps to implement the actions required by the Yogyakarta Principles. Labor will work strategically to support and assist both local and international civil society organisations in promoting LGBTIQ human rights.’

I encourage the National Policy Forum to amend the abbreviated commitment in the Consultation Draft to capture these elements, and especially supporting the push for decriminalisation in the Pacific, Indo-Pacific and Commonwealth.

My final comment in relation to the section ‘Equal rights for LGBTIQ Australians’ on pages 53 and 54 is to highlight that it does not include support for any formal mechanisms to consult with, and represent the interests of, LGBTIQ communities. For example, the National Policy Forum should consider expressing support for both:

  • A Commonwealth Minister for Equality, and
  • An LGBTIQ Ministerial Advisory Committee, including sub-committees in relation to health, education, justice and other portfolios as required.

I have a further, important comment to make about the section ‘Freedom of thought, conscience and religion’ on page 55 of the 2020 Consultation Draft.

Specifically, paragraph 41 states:

‘Labor believes in and supports the right of all Australians to manifest their religion or beliefs, and the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith. Such rights should be protected by law. Labor recognises that the freedom to have or adopt a religion or belief, or not to have or adopt a religion or belief, is absolute.’

While elements of this commitment are appropriate, the way in which it is worded is dangerous. In particular, the right to manifest religion or beliefs must always be limited by the need to protect the fundamental human rights of others, including the right to be protected against discrimination.

As the International Covenant on Civil and Political Rights itself notes, at Article 18.3:

‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’

This vital nuance is currently missing from paragraph 41. In its absence, people of faith and especially religious organisations would be given a blank cheque to discriminate against others, including LGBTIQ Australians.

Recommendation 7.

Paragraph 41 on page 55 be redrafted such that the right to manifest religion or beliefs is limited by the need to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, including the right to participate in public life free from discrimination.

Chapter 6: Strengthening Australian Democracy

No comments.

Chapter 7: Australia’s Place in the World

On page 68, at paragraph 41, I suggest the inclusion of an additional dot point, to the effect that ‘Labor will ensure Australian international development addresses… the empowerment of people with diverse sexual orientations, gender identities and sex characteristics.’

Statements in Detail

On page 82, under the hearing ‘Public sector industrial relations’, where it says ‘Labor will… [l]ead by example on addressing the ill effects of family and domestic violence by introducing public-sector wide standards of paid leave and other supporting entitlements for workers who are affected by family and domestic violence’, I suggest the inclusion of the following:

‘Labor will lead by example on addressing the disadvantage and exclusion experienced by trans and gender diverse people in the workforce by supporting public-sector wide entitlements to paid transition leave.’

Finally, I express my strong personal support for the retention of explicit commitments in the Statements in Detail in relation to LGBTIQ refugees and people seeking asylum. This includes paragraph 24 on page 93:

‘Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.’

And paragraph 13 on page 95:

‘Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.’

**********

In conclusion, I acknowledge even this detailed submission is unable to substantively address all of the many LGBTIQ policy commitments that were included in the 2018 National Platform, but which have subsequently been excluded from the 2020 Consultation Draft.

Some of these now-omitted policies covered:

  • Providing LGBTIQ-inclusive aged care (paragraph 34 on page 110)[viii]
  • Addressing LGBTIQ housing and homelessness issues (paragraphs 166-167 on page 171,[ix] and paragraph 90, on page 214)
  • Ensuring LGBTIQ statistics are collected by the Australian Bureau of Statistics (paragraph 85 on page 213)[x]
  • Establishing a National Gender Centre ‘to provide support and advocacy for transgender Australians, which could have an education and training role to promote awareness about transgender issues to the wider public’ (paragraph 88 at page 213), and
  • Supporting programs to make sport inclusive for LGBTIQ participants (page 195).

To some extent, it is perhaps inevitable that, by choosing to reduce the length of the Platform from 268 pages to 96, the Australian Labor Party’s 2020 Consultation Draft would include fewer detailed commitments in support of LGBTIQ equality and human rights.

What is not inevitable, however, is that these commitments should be cut in such a disproportionate way, as I have demonstrated through this submission. Or that it now excludes important policies around ending coercive medical interventions on intersex children, removing out-of-pocket costs for trans and gender diverse healthcare, restating a commitment to ending the HIV epidemic, or making much-needed improvements to Commonwealth LGBTI anti-discrimination laws.

I strongly urge the National Policy Forum to consider amending the draft Platform to strengthen the Party’s policy commitments in these four areas, and in other ways suggested in my comments on specific chapters and the statements in detail.

Nevertheless, irrespective of what happens in the redrafting process, or at the National Conference in early 2021, it seems highly likely that the Platform adopted next year will be the first in at least a decade, and perhaps the first in a generation, to include fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

In which case, the onus will be on the Leader of the Opposition Anthony Albanese, Shadow Ministry and Federal Parliamentary Labor Party generally to work with the LGBTIQ community in the lead-up to the next election to make detailed policy commitments outside of the Platform so that urgent community needs are still addressed.

Thank you in advance for taking these comments into consideration. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Opposition Leader Anthony Albanese is highly likely to release the first ALP National Platform in a generation which contains fewer commitments in support of LGBTIQ equality and human rights than its predecessor.

Footnotes:


[i] For background on this issue, please see my Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics.

[ii] For more, see Trans Out-of-pocket Medical Costs

[iii] Noting that the 2018 National Platform included a commitment to provide effective sanctions against anti-LGBTIQ hate-speech (at paragraph 137, on page 218):

‘When prejudice against LGBTIQ people contributes to harassment by the written or spoken word, such harassment causes actual harm, not simply mere offence, to people who have suffered discrimination and prejudice, and causes particular harm to young same-sex attracted, gender-questioning or intersex people. Labor considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will ensure that anti-discrimination law provides such effective sanctions.’

[iv] For more on these proposed reforms, see:

What’s Wrong With the Commonwealth Sex Discrimination Act 1984? and

5 Years of Commonwealth LGBTI Anti-Discrimination Law Reforms. 5 Suggestions for Reform.

[v] For more, see Unfairness in the Fair Work Act.

[vi] For more, see The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked

[vii] For more, see Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates

[viii] ‘As they age, LGBTIQ deserve care and support that reflects their diversity. Labor will ensure policies in relation to ageing take into account the needs of people with different sexual orientations, gender identities and sex characteristics by building on Labor’s previous LGBTIQ Ageing and Aged Care Strategy.’

[ix] ‘There is a significant connection between homelessness and people being subjected to discrimination and harassment for being same-sex attracted or transgender and specifically understands the discrimination and exclusion affecting transgender people seeking to access support. Accordingly, Labor will work with affected communities to enhance housing support for LGBTIQ Australians.’

‘Labor acknowledges that young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.’

[x] An especially significant omission given the decision of the current Liberal/National Government to not include LGBTI questions as part of the 2021 Census. For more on this topic see Census 2021 – Count Me In.

Finally, the 2020 ALP National Platform – Consultation Draft:

And, for comparison, the 2018 ALP National Platform:

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