Australia’s (Mis)Treatment of LGBTI Refugees

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here

 

Of all the issues that involve human rights violations against lesbian, gay, bisexual, transgender and intersex people in Australia there are two that particularly stand out (at least in my view).

 

One – ongoing coercive medical treatments and surgeries on children born with intersex variations – I have written about previously.

 

The other is the deliberate mistreatment of LGBTI refugees and people seeking asylum by the Australian Government.

 

Of course, this abuse is only one small part of Australia’s broader shameful approach to refugee issues, but, as we shall see below, it does raise specific issues around where people are processed and how claims are assessed.

 

The following are three key areas where the Australian Government’s approach to LGBTI refugees and people seeking asylum should urgently be improved, as well as one suggestion for further consideration.

 

  1. End the detention, processing and settlement of LGBTI refugees in countries that criminalise homosexuality

 

To begin, I should reiterate my personal opposition to Australia’s overall ‘offshore processing’ policy, which essentially involves the indefinite detention of refugees in prisons in the South Pacific. There is no justification for this approach.

 

There can also be no possible justification for the detention, processing and settlement of LGBTI refugees and people seeking asylum in countries that criminalise homosexuality. And yet that is exactly what Australia has done for the past seven years.

 

This includes Nauru, where homosexuality remained criminalised until May 2016,[i] and Manus Island in Papua New Guinea, a country where the maximum penalty for male same-sex intercourse is still 14 years imprisonment.

 

There is no exception for people held in Australia’s immigration detention facilities in these countries either. This is demonstrated by the following report from Behrouz Boochani in The Guardian:

 

It was five years ago in Fox prison camp. A group of immigration officers accompanied by a number of interpreters burst in. All of a sudden, one of the officers stood on a chair precisely like a king’s representative in ancient times, like one of those men reading the king’s announcement for convicts. The officer took a piece of paper, and surrounded by dozens of refugees he started to read. The announcement was serious, decisive, to the point and threatening, like his voice. “Homosexuality is illegal in Papua New Guiana [sic] and considered as a crime. If anyone in the immigration detention engages in this behaviour, he will be sentenced to 14 years in prison.” It was a dire warning from the prison’s officials and directly targeted homosexual prisoners.

 

The article then details the horrendous impact of these laws on Alex* (pseudonym), a gay Iranian refugee imprisoned on Manus Island, who was gradually but inevitably broken by the homophobic environment there, through intimidation, harassment, abuse and even rape. His experiences ultimately led him to risk his life again by returning to Iran, before seeking asylum elsewhere – and served as a cautionary tale to other queer men on the island. As Boochani concluded:

 

No one knows how many gay, transgender or bisexual refugees live on Manus, but what is clear is that the suffering they experienced in their countries has been repeated on Manus in a disastrous way. Fear, humiliation, threat, banishment, rape – these are all concepts and experiences lived daily by these men. Gay, transgender and bisexual men here have experienced even greater torment than other refugees. [emphasis added]

 

Successive Australian Governments have been fully aware of these abuses. I know, because I have written about this issue to multiple Immigration Ministers,[ii] including then Minister – now Prime Minister – Scott Morrison in 2014. His Department’s response failed to even guarantee that LGBTI asylum seekers would not be reported to PNG police for same-sex sexual activity.

 

Given his ‘tough on border security’ rhetoric, there appears little hope that a re-elected Morrison Liberal-National Government would take any action to address these human rights violations.

 

On the other hand, there is some chance that a Shorten Labor Government might finally take a different approach. This is at least in part due to a commitment in the 2018 Australian Labor Party National Platform that:

 

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.[iii]

 

Consequently, there is a possibility the situation may change, along with the Government, on Saturday 18 May – although that will only happen if LGBTI and refugee advocates maintain pressure on Labor to fulfil this commitment.

 

160427 Refugee Submission No Kissing

The slide from the Salvation Army presentation that was shown to people seeking asylum after their arrival on Manus Island (source: Guardian Australia).

 

  1. Improve the assessment process for LGBTI claims for asylum

 

This is another major problem confronting lesbian, gay, bisexual, transgender and intersex refugees and people seeking asylum in Australia, one that has existed for many years, even decades.

 

Practically, the decision-makers of the Refugee and Migration Division of the Administrative Appeals Tribunal (known until 2015 as the Refugee Review Tribunal) have struggled to appropriately consider the diversity of sexual orientations and gender identities from other countries, leading to a very low rate of success in receiving refugee protection (a 2003 study by Professor Jenni Millbank showed that at most only 20% of claims were approved).

 

As reported in the Sydney Morning Herald:

 

Tribunal officials have long been accused of judging applicants based on a slew of Western gay stereotypes, such as effeminate manner or dress. In one notorious case, an applicant was deemed not gay after failing questions about Madonna, Better Midler, Oscar Wilde and Greco-Roman wrestling. The man barely spoke English and was mystified by the topics. “I don’t understand it,” he said to his interviewer. “I’m sorry.”

 

When in 2004 his case came before the High Court on appeal (after the Federal Court had first ruled against the applicant), the justices were staggered by the line of questioning used by the Tribunal, describing it as very odd, and almost bordering on the bizarre. “Madonna, Better Midler and so on are phenomena of Western culture,” declared Justice Michael Kirby at the time. “In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind. Survival is.”

 

Unfortunately, more recent cases do not indicate that this inherent Western-gay bias has been overcome. The SMH further reported that:

 

Last year [2016], a man from Bangladesh was rejected in part because he was unable to correctly pronounce or spell the name of a Sydney gay club he’d visited called the Stonewall, according to Tribunal documents – which incorrectly referred to the nightclub as a “day venue”. In a similar 2014 case, an asylum seeker was told he wasn’t gay because, although he described having two monogamous relationships, he hadn’t “explored his homosexuality” by going to Sydney’s gay bars, and had little knowledge of Oxford Street.

 

There are additional reports of Tribunal members asking inappropriately sexual questions, as well as applicants being encouraged to supply video of themselves engaging in sexual activity in an attempt to ‘prove’ their homosexuality to the Tribunal. This occurs because, as the SMH notes, “there are no guidelines for dealing with LGBTQI applicants.”

 

This situation must change, as a matter of priority. Unfortunately, there is no indication that a re-elected Morrison Liberal-National Government will take action to address these problems.

 

Once again, however, these is some reason to be optimistic about a Shorten Labor Government, which includes these commitments in its Platform:

 

The assessment and review of protection claims of specific lesbian, gay, bisexual, transgender, intersex and queer asylum seekers will be underpinned by appropriate and relevant assessment tools and processes that reflect cultural experiences of the lesbian, gay, bisexual, transgender, intersex and queer community.

In assessing asylum claims where the fear of persecution arises from a person’s lesbian, gay, bisexual, transgender, intersex and queer status, the fact that the country the person is fleeing has criminal penalties for engaging in homosexual sex is sufficient of itself to establish that fear of persecution is well-founded, and any assessment of the asylum seeker’s identity and fear must take account of the very different manifestations of lesbian, gay, bisexual, transgender, intersex and queer identity that other cultures, especially ones profoundly hostile to lesbian, gay, bisexual, transgender, intersex and queer people, necessarily engender.

 

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.

 

As with ending detention of LGBTI refugees in countries criminalising homosexuality however, the challenge will be in ensuring that a new Government follows through on its promises.

 

  1. Increase support for LGBTI refugees and people seeking asylum in Australia

 

Another area where urgent reform is needed is the level of support provided to lesbian, gay, bisexual, transgender and intersex refugees within Australia.

 

The few dedicated support services that exist receive minimal funding, and consequently are unable to meet the significant needs of this vulnerable population.

 

Particular challenges include the fact that LGBTI refugees and people seeking asylum may not be comfortable in disclosing their sexual orientation, gender identity or sex characteristics to services based on their ethnicity or background, but at the same time may not be welcomed by or receive adequate support from LGBTI services.

 

As noted in a 2018 Star Observer article on this topic:

 

LGBTI asylum seekers can also find themselves caught between lack of acceptance from diaspora communities and lack of understanding from mainstream LGBTI communities.

 

First and foremost, these gaps should be addressed by providing direct Government funding for peer-led LGBTI refugee services. However, this alone may not be sufficient to ensure LGBTI refugees and people seeking asylum are able to access the full breadth of services they may require.

 

Therefore, there should also be funding to support education and training programs for ethnic community organisations to assist them to be welcoming environments for LGBTI refugees (as well as inclusiveness training for interpreters, who have a key role to play not just in supporting LGBTI people seeking asylum to access services, but also in their claims for protection).

 

There is also a need for LGBTI community organisations to provide greater social support and outreach to LGBTI refugees and people seeking asylum in Australia. This would help to establish connections between LGBTI refugees and the wider LGBTI community, and may result in better social outcomes over the medium- to long-term.

 

**********

 

While the above three issues are presented as concrete recommendations for change, the following suggestion is raised to prompt further discussion:

 

  1. Introduce quotas or targets for the intake of LGBTI refugees

 

I should preface this discussion by saying that, philosophically, I don’t support the introduction of quotas or targets within Australia’s overall refugee program based on demographic criteria. Instead, Australia should accept refugees based on the assessment of need by the UN Refugee Agency (the UNHCR).

 

However, that is not how the Australian refugee framework currently operates.

 

Since 2015, the Australian Government has adopted a policy of prioritising Christian refugees from the Middle East (which itself is/was a part of the special quota for refugees fleeing the conflict in Syria and Iraq, operating in addition to Australia’s regular refugee intake).

 

I agree with many of the criticisms of this approach made in this New York Times column, Australia’s immoral preference for Christian refugees, although these criticisms do not appear to have influenced Australia’s ongoing pro-Christian bias.

 

Indeed, it seems the Morrison Liberal-National Government wants to introduce even greater demographic criteria within the refugee program.

 

During the election campaign, it has announced ‘the proposed makeup of the humanitarian program for the first time. This will include an overall target of 60% of the offshore component allocated to women. Women made up 50.8% in 2017-18.’[iv] [emphasis added]

 

In this context, the obvious question is: if Christians and women receive allocated quotas (or targets), then why not lesbian, gay, bisexual, transgender and intersex refugees?

 

Indeed, there are strong arguments in favour of this approach.

 

Based on analysis of 2018 UNHCR figures, and the 2019 ILGA State-Sponsored Homophobia Report, of the five top refugee-hosting countries, four retain criminal sanctions for homosexuality:

 

Country

Number of refugees Criminal penalties for homosexuality
Turkey 3.5 million Not criminalised
Uganda 1.4 million Life imprisonment
Pakistan 1.4 million 10 years
Lebanon 1 million 1 year
Iran 979,400

Death penalty

 

A significant number of LGBTI refugees are therefore unsafe and at risk even after they have fled persecution elsewhere.

 

There are also a number of countries in our own Oceania region that criminalise homosexuality, including PNG, Kiribati, Solomon Islands, Tuvalu and Cook Islands (all of which have a maximum penalty of 14 years imprisonment), Tonga (10 years imprisonment) and Samoa (5 years imprisonment). And that’s not mentioning the recent attempt by the Government of Brunei to introduce the death penalty (which they have backed down from – for now – but retain a punishment of imprisonment up to 10 years).

 

As stated earlier, my personal preference is that there are no demographic criteria for determining the intake of refugees. But, if Australia’s current approach, which gives priority to Christians and women, does continue, I can see no good reason why there should not also be quotas or targets for the intake of refugees who are lesbian, gay, bisexual, transgender and intersex.

 

**********

 

Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

 

Footnotes:

[i] Of course, just because homosexuality has been decriminalized in Nauru doesn’t necessarily mean it is now a welcoming environment for LGBTI refugees and people seeking asylum. This is confirmed by the following accounts, including:

In detention: Gay on Nauru, in Archer Magazine (July 2018) and

True love in Nauru, in The Monthly (September 2017)

[ii] Lest I be accused of partisanship, I also wrote to Labor Immigration Ministers Chris Bowen and Brendan O’Connor on the same subject in 2012 and 2013.

[iii] This is a commitment I drafted ahead of the 2015 National Conference, and remains one of my proudest achievements in LGBTI advocacy.

[iv] Of course, there is a great irony in the Coalition supporting a gender-based quota for refugee intake, while it steadfastly opposes gender-based quotas for the pre-selection of its candidates.

Pride, Pressure and Perseverance

I am a naturally introverted person, and someone who is more likely to express an opinion about an issue of public policy, than to wear my heart on my sleeve.

 

Which means that, when it comes to something like the Sydney Gay & Lesbian Mardi Gras Parade, I am more likely to understand the philosophical importance of ‘pride’ – of a community coming together to express pride in who they are – than to actually feel it. Think more political expression than personal emotion.

 

But today is different. Today I definitely feel pride, deeply and sincerely, in my community, in lesbian, gay, bisexual, transgender, intersex and queer Australia.

 

I feel pride not just because of what we as a community have accomplished, but also because of the reasons we took on the task in the first place.

 

By now you would know that, this morning, the Australian Labor Party caucus formally decided to block Malcolm Turnbull’s plebiscite on marriage equality.

 

Given the numbers in the Senate, and the already stated positions of the Greens, Nick Xenophon Team, Derryn Hinch and even Liberal Senator Dean Smith, that means the plebiscite’s enabling legislation will not pass the upper house, when it is ultimately voted on (whether that is in a few weeks’, or a few months’, time).

 

We have, through collective effort, killed the plebiscite. It merely remains to be buried.

 

I probably don’t need to explain to regular readers of this blog just how hard many, many people have had to work to make that happen – in the face of stiff opposition.

 

The plebiscite was the policy of not one but two Prime Ministers, and of a (narrowly) re-elected Liberal-National Government.

 

It had a vocal cheer squad across large sections of the mainstream media, and even many of those who knew it was poor public policy nevertheless urged us to accept it as a supposedly ‘pragmatic’ way forward.

 

It was, at least initially, popular in the electorate – although now, after we have spent months painstakingly highlighting the fact it is both non-binding, and extraordinarily expensive, it is less popular than Donald Trump.

 

The Government even had the easiest argument to make – ‘Let the people decide’ – despite the fact using a plebiscite to determine the rights of a minority group is a perversion of Australia’s system of representative democracy.

 

And it would have been comparatively ‘easy’ to adopt the path of least resistance, to roll over and accept the offer that was on the table, and the possibility it could have led to marriage equality by the middle of next year.

 

Given we have already been waiting so long for marriage equality, and that there are many couples who have now been engaged for many years, or even decades, waiting to simply be treated equally under Commonwealth law, that may have even been an understandable choice.

 

But it would not have been the right one. And I am proud we did not make it.

 

The LGBTIQ community decided, following much debate over the course of several months, not to roll over and ‘put up with’ a fundamentally flawed model put forward by people who clearly did not have our best interests at heart.

 

Instead, we stood up to say no to their unnecessary, wasteful and divisive plebiscite.

 

We stood up to say that, given marriage equality is, at its heart, about fairness, the manner in which it is recognised must be fair as well (contrary to Attorney-General George Brandis’ recent bleatings that ‘the ends justifies the means’).

 

Above all, we stood up to say that, while a plebiscite may have helped some members of our community to have their rights recognised more quickly, it would also have caused real and potentially long-lasting harm to young and vulnerable members of the LGBTIQ community, and to rainbow families.

 

And that trade-off was unacceptable to us.

 

Which means that, as well as having the right objective, we were also motivated by the right reasons – and that makes me immensely proud, too.

 

As an aside, I am also personally satisfied in the small but hopefully meaningful role I played in this much broader collective effort – whether that was by writing multiple submissions and letters to decision-makers, engaging in community education, refining arguments and messaging, conducting my own survey to ascertain community attitudes towards the plebiscite or even designing simple little memes that somehow managed to reach a wide audience.

 

As with any significant campaign, there are obviously many, many people (too many to event attempt to name here) who have all helped achieve this particular victory. I am just happy to be among them.

 

Of course, this is not the ultimate success that we crave – the equal recognition of our relationships under the Marriage Act 1961, irrespective of sexual orientation, gender identity or intersex status.

 

Defeating the plebiscite is just another battle (albeit a significant one) on the long road towards that objective. And there are, unfortunately, plenty more battles left to fight to reach that goal.

 

Which means that, rather than being able to sit back and rest on our laurels at this point, we must keep the pressure up – just as we have done for the past 12 years.

 

We must keep the pressure up on Prime Minister Malcolm Turnbull, a man who claims to support the LGBTIQ community generally, and marriage equality specifically. Well, if that is the case, then it is his responsibility to actually demonstrate that support by providing a free vote in the Parliament, so that this issue can be resolved as quickly as possible (and potentially before the end of this year).

 

And if Turnbull is unwilling or unable to lead on this (and all indications are that he will not show the same leadership that Bill Shorten today has), then we must keep the pressure up on other MPs and Senators within the Coalition who back marriage equality, and encourage them to follow their conscience and cross the floor to support the legislation put forward by Labor and/or the Greens.

 

Hon Bill Shorten MP Official portrait 20 March 2013

In blocking the plebiscite, Bill Shorten has shown the leadership that Malcolm Turnbull sadly has not.

 

We must also keep the pressure up on the Government over their proposals, released last night, to dramatically expand religious exceptions as part of any amendments to the Marriage Act – including by providing civil celebrants with the power to effectively put up a sign saying ‘No gays allowed’, and religious-operated businesses and services to turn away LGBTIQ couples.

 

Anything beyond the existing right of ministers of religion to refuse to officiate a ceremony is unacceptable and must be rejected.

 

And we must keep the pressure up by continuing to defend our principled stance against the plebiscite.

 

It is inevitable that many within the Liberal and National Parties will now turn around and blame the LGBTIQ community, and the Australian Labor Party for listening to us, for their failure to achieve marriage equality in the short-to-medium term.

 

But that view is based on a falsehood – because, if those same MPs and Senators are genuinely interested in resolving this issue, then they should be reminded that they sit in the place where they can do exactly that, by passing legislation in the ordinary way (and in exactly the same way that our rights were denied by John Howard’s Government in August 2004).

 

For however long it takes us to achieve marriage equality, we will likely need to continue to explain our justification for saying a firm ‘No thanks’ to the plebiscite – and that is because it is unnecessary, inappropriate, divisive, wasteful, unprecedented, bizarre, inconsistent, radical, unfair and dangerous.

 

Right now, it remains to be seen just how long that wait will be. As indicated above, if Turnbull were to do the right thing and call for a free vote immediately, marriage equality could be passed within a matter of weeks, and LGBTIQ couples could be able to marry by the start of 2017.

 

Or it could take slightly longer, with sustained pressure forcing the Government to change its position over the course of the next 12-18 months (or compelling enough backbenchers to summon the courage to walk 12-18 feet across the parliamentary chamber to pass the Bill).

 

It may even be that we will not achieve marriage equality for another three or four years, following the possible election of a Shorten Labor Government – or the Coalition coming to its senses and abandoning the unnecessary, wasteful and divisive plebiscite.

 

No matter how long it takes, we know that marriage equality will eventually be recognised under Australian law.

 

Why? Not just because it is the right thing to do. But because of one quality that LGBTIQ Australians have shown, in abundance, since Howard’s unjust ban. A quality that we continue to demonstrate today: perseverance.

 

Over the past 12 years, we have been let down by multiple Prime Ministers, and Governments of different persuasions. But we have kept fighting.

 

We have been legislated against, and then largely ignored, and yet we have continued campaigning until we made marriage equality a central issue in Australian politics.

 

And we have been underestimated, time and time again – most recently about the plebiscite itself (you can bet that most senior figures within the Coalition, and indeed many people in the media, believed that the LGBTIQ community would simply acquiesce to their problematic proposal).

 

But we have persisted in arguing for what we believe is right and fair, including the fairest way to achieve it.

 

We do this because it’s personal. Because, while prima facie this is an issue simply of legal discrimination, it is about far more than that.

 

It is about who we are as people, and our fundamental right, not just to equal treatment under the law, but to dignity and respect.

 

It is about our relationships, about seeing them be recognised as being as worthy as those of everyone else – and about having the same choices as others, including whether to get married or not (rather than having that decision made for us by 226 people in Canberra).

 

It is about our families, both the rainbow families who are raising thousands, or tens of thousands, of happy and healthy – and above all, loved – children, and our parents and siblings and extended families, who share the entirely understandable desire that their family members be treated fairly.

 

And it is about generations of lesbian, gay, bisexual, transgender, intersex and queer Australians still to come, who have the right to grow up in a country that does not discriminate against them simply because of who they are.

 

For all of these reasons, we will continue the fight for marriage equality for as long as it takes.

 

We will persevere. Until it is finally done.

Letter to ALP MPs and Senators Calling on Them to Block the Plebiscite

Wednesday 14 September 2016

 

Dear ALP MP/Senator

 

Please Block the Marriage Equality Plebiscite

 

I am writing to call on you to cast your vote against Prime Minister Malcolm Turnbull’s enabling legislation to hold a plebiscite on marriage equality.

 

Given the public declarations by Senators from the Greens, Nick Xenophon Team and Derryn Hinch that they will oppose this Bill, Labor Party MPs and Senators have the power, and I would argue the responsibility, to block Turnbull’s Bill, thereby preventing the plebiscite from proceeding.

 

Instead, it should be up to parliamentarians from across the political spectrum to debate, and vote on, a Bill that would hopefully make marriage equality a reality – using exactly the same procedure in which the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians were denied 12 years ago.

 

**********

 

Even as someone who has studied, been employed in and continues to be engaged with Australian politics, I must admit I knew little about ‘plebiscites’ before the Liberal-National Government first adopted one as their position on marriage equality on 11 August last year.

 

But there’s a pretty good explanation for that – despite the fact I am (far-too-rapidly) approaching the age of 40, there has not been an Australia-wide plebiscite, of any kind, since I was born.

 

Of course, given the Turnbull Coalition Government proposes to use this kind of national public vote to determine whether my relationship should be recognised equally under Commonwealth law, I have spent the past 13 months becoming better acquainted with this supposedly ‘democratic’ phenomenon.

 

In that period I have thought about, and written about, the idea of plebiscites generally, and the proposed marriage equality plebiscite specifically, enough to last a lifetime. And the more I have considered this issue in detail, the stronger my view has become that a plebiscite is an entirely unsuitable means to determine the human rights of LGBTI Australians.

 

From my perspective, and reflecting the multiple blog-posts, submissions and letters to politicians I have written about the plebiscite over that time, there are ten main reasons why I believe it should be blocked:

 

  1. A plebiscite is unnecessary[i]

 

The High Court has already determined that Commonwealth Parliament has the constitutional power to pass legislation introducing marriage equality. There is absolutely no need for a national public vote to be held beforehand, whether that be a referendum, plebiscite or otherwise. Instead, marriage equality should be passed in the same way it was originally banned – through a vote in Parliament.

 

  1. A plebiscite is inappropriate

 

The fact that the relationships of some people are not recognised equally under the law, solely because of their sexual orientation, gender identity or intersex status, is a denial of their fundamental human rights. Remedying this injustice should not be dependent on ‘popularity’, thus rendering a plebiscite an inappropriate method to resolve this issue.

 

Even if the plebiscite was ‘unsuccessful’, the denial of human rights caused by marriage inequality would not disappear, perhaps explaining why LGBTI people will continue to push for the laws to be amended irrespective of the result.

 

  1. A plebiscite is divisive

 

Some people (aka Prime Minister Malcolm Turnbull) have argued that the plebiscite will involve a ‘respectful’ debate between proponents and opponents of reform, who, when the votes are tallied, will all accept the outcome, with the overall process bringing the nation closer together.

 

I disagree. It will instead see LGBTI Australians forced to publicly ‘beg’ for our rights, in the face of anti-equality campaigners, such as Australian Christian Lobby Managing Director, Lyle Shelton, who have repeatedly demonstrated their willingness to denigrate LGBTI people and our relationships (with Mr Shelton linking same-sex parenting with the Stolen Generations on multiple occasions, comparing the introduction of marriage equality and the Safe Schools program with the rise of Nazism, and inciting ‘bathroom panic’ against trans women[ii]).

 

It is, at-best, naïve (and, at-worst, wilfully ignorant) to suggest that, after three-to-six months of divisive debate, with the worst kinds of homophobia, biphobia, transphobia and intersexphobia thrown about by people like Mr Shelton, the passions and prejudices whipped up by the plebiscite will ‘magically’ subside.

 

  1. A plebiscite is wasteful

 

It is difficult to think of many examples where the Government, any Government, is willing to spend several months, and at least $170 million, doing something it could do for free, in a matter of weeks. That is exactly what the Turnbull Liberal-National Government is proposing, wasting time and money on a plebiscite when a Parliamentary vote could resolve the issue by the end of October. At no cost.

 

The money involved could be better spent on literally almost anything else, including:

 

  • Resettling an extra 2,297 refugees from Syria and Iraq
  • Supporting an additional 1,975 postgraduate students
  • Hiring 477 more registered nurses over four years
  • Employing an extra 578 teachers in public schools, or
  • Funding the Safe Schools program 20 times over.[iii]

 

If Turnbull and his Treasurer Scott Morrison were serious about ‘restoring the nation’s finances’, they could even use this money to reduce Government debt[iv], rather than throwing it away on an exercise that is basically a national opinion poll, one that isn’t even binding on the MPs and Senators putting it forward.

 

  1. A plebiscite is unprecedented[v]

 

I mentioned earlier that there has not been a nation-wide plebiscite in my lifetime. The last one – a multiple choice poll to select a new national anthem – was held in 1977 (although its result was not implemented for another seven years). The last plebiscite on a substantive matter of public policy was more than 98 years ago – the second of two plebiscites conducted during World War I regarding conscription. And that’s it, Australia’s entire history of plebiscites in one short paragraph.

 

There has never been a plebiscite to determine the rights of a minority group. And there is no person alive who has voted in an Australian plebiscite on an issue of substance – indeed, no-one born since Federation has ever voted in one. The decision to hold one, on the issue of marriage equality, is essentially unprecedented in contemporary history.

 

  1. A plebiscite is bizarre

 

The fact that there has not been a substantive plebiscite in almost a century means that Australia has managed to negotiate extraordinary amounts of change without the need to hold a national public opinion poll.

 

We’ve been through numerous wars (including introducing conscription, more than once), economic booms and busts, massive social reforms (such as the rise of feminism, the recognition of Aboriginal land rights and the decriminalisation of homosexuality), and revolutionary change to the institution of marriage itself (with the introduction of ‘no-fault divorce’ in 1975), all without a plebiscite.

 

In this context, it is downright bizarre that, of all the possible issues that theoretically could have been the subject of a plebiscite since 1917, Malcolm Turnbull and his Coalition Government believe the simple question of whether two men, or two women, can marry is the one worth making the subject of an expensive and time-consuming public vote.

 

  1. A plebiscite is inconsistent

 

The Government’s proposed marriage equality plebiscite is entirely inconsistent with recent political history. Or, if we’re being less charitable, it is hypocritical given the actions of the Liberal and National Parties over the past 12 years. This includes not just the banning of marriage equality via an ordinary parliamentary vote in August 2004 – then-Prime Minister John Howard did not hold a plebiscite before introducing his Marriage Amendment Act – but also repeatedly voting against overturning the ban in parliament in the decade since, again without the benefit of a $170 million national public vote.

 

The only thing that seemed to change before the Coalition’s August 2015 decision to adopt a plebiscite as their policy is the fact that the numbers in parliament shifted, such that, were a free vote to be held, marriage equality would have finally passed. The inconsistent decision to adopt a plebiscite can therefore be seen as a cynical manoeuvre to do more than just shift the goalposts, but to change the rules of the game entirely, solely to avoid defeat.

 

  1. A plebiscite is radical

 

An argument regularly made by people pushing a plebiscite is that it is ‘the most democratic way’ to resolve a controversial issue. A clear implication of such a statement is that dealing with these kinds of debates in the ordinary way, via our nation’s parliament, is consequently, ‘second-best’.

 

Following this logic to its natural conclusion, whenever a controversial matter of public policy arises in future there will be calls for it to be the subject of a plebiscite – and the Liberal and National Parties will have no rational reason to reject these demands. By holding a plebiscite on marriage equality, they are opening the door to plebiscites on issues like euthanasia or, more worryingly, the reintroduction of the death penalty or even ‘banning Muslim immigration’.

 

A plebiscite on marriage equality is therefore not a conservative position – in fact, it is an extremely radical view, one that could potentially change Australia’s entire system of Government, and not for the better.[vi]

 

  1. A plebiscite is unfair

 

Another argument against the plebiscite was perhaps best articulated recently by former High Court Justice Michael Kirby, and that is to note it is a process that is inherently unfair on Australia’s LGBTI community:

 

“[I]t’s a discriminatory step. It’s a step that is designed by those who propose it in the hope of defeating and delaying equality for citizens. It’s unfair to people who are of a different sexual orientation or gender identity and it’s a bad precedent for our law-making.”[vii]

 

The imposition of a plebiscite in order for LGBTI people to be treated fairly under secular law is a hurdle that has not been placed in front of any other minority group in order for them to attain equality. Erecting this barrier is effectively singling out people on the basis of their sexual orientation, gender identity or intersex status for differential, and detrimental, treatment.

 

It is particularly offensive given the issue of marriage equality, at its core, is about fairness, fairness to LGBTI people and to our relationships. The method in which this issue is resolved should also be fair – a plebiscite is anything but.

 

  1. A plebiscite is dangerous

 

Holding a plebiscite on marriage equality is dangerous in (at least) two ways. First, and this is something that is thankfully starting to receive coverage (including by Opposition Leader Bill Shorten in the Second Reading Speech of his private member’s Bill), is that the divisive debate in the lead-up to the vote will be dangerous to young and/or vulnerable members of the LGBTI community, as well as to the children of rainbow families.

 

Should a plebiscite proceed, it is inevitable these groups will be subjected to hate-speech, and personal attacks. It is sadly also inevitable that, for some, it will have a negative impact on their mental health, including causing or exacerbating depression and, tragically, possibly leading some to take their own lives.

 

A plebiscite is also dangerous because it has the potential to lead to violent attacks on the LGBTI community. No, I am not talking about a tragedy similar to the recent heart-breaking events in Orlando. But I am talking about the more ‘everyday’ heart-breaks of homophobic and transphobic assaults, as well as the rise of hate-groups opposed to the mere existence of LGBTI people.

 

Two recent examples spring to mind here. The first was a shocking incident from February this year where a young man, who happens to live in the same apartment complex as my fiancé and I, was the victim of two homophobic assaults on the same night.[viii]

 

After being ‘gay-bashed’ by a group of people nearby he was assisted back to our block by a ‘good Samaritan’ who, upon discovering he had a boyfriend waiting upstairs (rather than a girlfriend), said “you’re one of those fags ya f**king queer c**t”, turned on the young man and hit him in the face. I challenge anyone, anywhere, not to be horrified that this sequence of events could occur in 2016.

 

The second example was the counter-demonstration to the 25 June marriage equality demonstration outside Sydney’s Town Hall, where a small, but obviously well-funded and well-organised, group shouted ‘paedo scum, protect our young’ loudly and insistently across George Street. I’ve been a regular attendee of marriage equality rallies since the first anniversary of Howard’s ban, but in those 11 years have never seen anything like it.

 

In this context, when people can be the victims of multiple acts of homophobic violence on the one night, and where homophobic and transphobic hate-groups are emerging (or re-emerging), I would argue it is grossly irresponsible to hold a vote that can only inflame the situation. Turnbull’s plebiscite is the spark that could ignite an explosion of hate-crimes, and he should call it off.

 

**********

 

Based on the thousands of words I have written in the 13 months since the plebiscite was first announced, and the couple of thousand more included above, my fiancé Steve and I both arrived at the same conclusion: that the plebiscite should be blocked, even if that carries with it a risk that marriage equality could be delayed as a result.

 

We have been together for more than eight years, having met in August 2008. And we have now been engaged for more than six and a half years, after Steve made me an extremely happy man by replying “Of course I will” to my proposal in January 2010.

 

At the time, we knew that it would take several years for the legal situation in Australia to change, and therefore accepted (or at least acknowledged) that we would be ‘waiting’ some time for the day when we would walk down the aisle. On an optimistic day, we thought we would probably be married by now: on a pessimistic day, perhaps not until later this decade, or even 2020.

 

But we didn’t envisage that in 2016 we would be comparatively so close to achieving equality, while simultaneously being so far way. And by that I mean that the numbers clearly exist in Parliament for marriage equality to be passed today – but the Turnbull Government will not allow that to happen unless it holds an unnecessary, inappropriate, divisive, wasteful, unprecedented, bizarre, inconsistent, radical, unfair and frankly dangerous plebiscite beforehand.

 

Anyone with any amount of empathy would understand that, given the length of time we have already waited, we are becoming increasingly desperate to finally have the chance to marry our partner, in front of our families and friends, in exactly the same way that my brother and sister have already married theirs. Ideally, we want to be able to say “I do” while both of our grandmothers are still alive, and at some point before or on our 10 year anniversary, in August 2018.

 

But, we are not so desperate that we are willing to accept a fundamentally flawed process, designed by people and organisations that clearly do not have our best interests at heart, and imposed upon LGBTI Australians in a way that no other group has been forced to endure.

 

And we are not so focused on our own happiness that we are prepared to ignore the potential harms to young and vulnerable LGBTI people, who are yet to come to terms with their sexual orientation or gender identity or intersex status in a country, and a world, in which they are still told, far too often, that who they are is not okay. And who would have to hear that message frequently, for months on end, if the plebiscite goes ahead.

 

Because Steve and I have both been that teenager, alone and in the closet, struggling to make sense of the homophobia coming from schools, and families, and politicians, and the media – and we owe it to those kids in the same situation now (as well as to our younger selves) not just to tell them that “It gets better”, but to make sure that it actually does get better.

 

That’s why we made the joint decision that we would rather wait even longer for our own right to get married if it means that these harms to others could be lessened, or even avoided altogether. And we remain proud of our choice.

 

**********

 

Of course, it is not just Steve and I who are affected by these discriminatory laws, or who would be impacted by any move to block the Government’s proposed plebiscite on marriage equality. As you are no doubt aware, there are literally tens of thousands of couples in similar situations right around Australia.

 

And the impact of any decision which has the potential to cause a delay in the recognition of marriage equality will be even greater on some of these, depending on their age, health and other factors. There are of course some couples for whom a delay will mean, tragically, they do not get the opportunity to marry their own partner before their death(s).

 

Cognisant of this fact, and recognising that calling on political parties to block the plebiscite even if this has the consequence that marriage equality may not be achieved during this term is a ‘big ask’, I decided I could not actively advocate this view to members of the new Parliament without first ascertaining the views of other members of the LGBTI community.

 

Following the federal election on Saturday 2 July, I designed a short online survey, which included a range of questions of which the central one was this:

 

“What do you think should be the LGBTIQ community’s approach to the proposed marriage equality plebiscite?

 

  1. Block it, if possible – because it is unnecessary, wasteful and will cause harm to the LGBTIQ community, even if there is a risk marriage equality will not be passed for another 3 years as a consequence.
  2. Accept it, and fight to win – because, following the re-election of the Turnbull Government, holding the plebiscite may be the clearest path to achieving marriage equality, despite the potential for harm to the LGBTIQ community.
  3. Wait to see the details – because the plebiscite may or may not be acceptable, depending on the question asked, the criteria for success and the extent of ‘religious exceptions’ that are included.”

 

The survey was distributed, from 17 to 31 July, via my website[ix], through social media, via paid advertisements and by direct contact with networks to ensure there were responses from across the LGBTIQ community. It ultimately received 1,140 completed responses, including 840 from LGBTIQ people.

 

The results of this survey were totally unambiguous:

 

  • Block it, if possible: 786 respondents or 69%
  • Wait to see the details: 231 or 20%, and
  • Accept it, and fight to win: 123 or 11%.[x]

 

This outcome – two thirds or more of people wishing to see the plebiscite blocked, even if it meant marriage equality may be delayed – was replicated across nearly all demographic groups, including lesbian (75.4% block), gay (66.4%), bisexual (69.5%), transgender (71.4%) and queer (75.8%) respondents, as well as the parents in rainbow families (73.3%).

 

In fact, the only cohort that was somewhat lower than this figure was from non-LGBTIQ people who completed the survey – of whom ‘only’ 62.7% wished to see the plebiscite blocked, compared to 71.2% of respondents from within the LGBTIQ community.

 

Despite this, it is instructive to observe that those who have the most to gain from the recognition of marriage equality, but are exposed to the greatest risk from the process, and who have therefore probably considered the issue in the most detail, are more likely to oppose it than others who support marriage equality but who have less personally at stake.

 

Based on these results, as well as the results of recent surveys from other organisations (including PFLAG Australia, just.equal and GetUp) which have reported similar results, I have absolutely no hesitation in calling on you, as ALP members of the House of Representatives and Senators, to exercise your vote to block the plebiscite.

 

Steve and I want it. The majority of the LGBTIQ community want it. It is the right thing to do. And, I believe, it is the only fair thing to do in the circumstances.

 

**********

 

But you do not need to take my word for it. As part of my survey on the plebiscite described above I included a question inviting respondents to explain their decision – specifically, to outline why they wanted to block, accept, or wait to see the details of, the plebiscite[xi].

 

I include with this letter a document containing all of the 725 answers provided by the 786 respondents who indicated they wanted the plebiscite to be blocked:

Survey Results Part 2 Block – Reasons

 

They are passionate, thoughtful and eloquent (far more eloquent than this letter) explanations for why the idea of waiting another three years for marriage equality, even though we have waited far too long already, is a far more appealing option than engaging in a bitter and nasty public debate. I encourage you to read as many of them as you have the time to before you meet to determine your caucus position.

 

However, and noting that it is a near impossible task to choose some people’s intimate responses over other, equally-personal explanations, I will highlight a few of the answers which I found most affecting:

 

“Block, even though I am 66 and another 3 yrs wait or longer is unacceptable. I will marry in May next year, here if possible, if not in the US. The date is set. Public votes are very divisive, and there will be so much harm done, even if we win, that I simply cannot support it. It also sets a very dangerous precedent, subjecting people’s rights to a vote.”

 

“I think we should block the plebiscite because it is unnecessary, wasteful and divisive. The homophobic and transphobic debate that precedes it will cause real harm to young and vulnerable LGBTI people. Parliament should do its job to protect them from, rather than expose them to, abuse.”

 

“If I were bombarded at 17yrs by the kind of rhetoric we are likely to see spouted in the lead up to the plebiscite, I likely would have killed myself. We are killing ourselves fast enough without extra help.”

 

“I think we should block the plebiscite because it will encourage hate speech, it may lead to violence against homosexual couples and their children, it may cause even more same-sex attracted teens to contemplate suicide, it will be a waste of money, and even if the vote is overwhelmingly in favour of marriage equality, politicians still have the option to vote against it so it’s not legally binding and doesn’t actually mean anything anyway.”

 

These three comments from trans respondents should be mandatory reading for anyone who, in September 2016, still supports a plebiscite:

 

“As a visible member of the transgender community I believe the plebiscite will be used by homo/bi/transphobic bigots to spread hate which will have a direct impact on my safety. I have experienced verbal and physical harassment in the recent past as a direct result of hate speech in the media and link it to an anti- safe schools television debate the night before. Visible trans, gender non conforming and queer people will be most at risk if the ACL is given a free-for-all platform. It’s easy to say yes to the plebiscite if you’re not at risk of experiencing violence.”

 

“I think we should block the plebiscite because it gives angry fringe members of a powerful majority a soapbox to use to hurt our most vulnerable members. Marriage equality is important, it’s our right and we know that having it improves the mental health of queer people, but we also know that young and questioning members of our community are more at risk than many people old enough and secure enough to be thinking about marriage. Young people trying to come to terms with their identities, struggling to accept themselves and cope with school and life do not need powerful wealthy leaders in society telling them that they are wrong and do not deserve human rights or basic decency. These are people who have been proven time and time again to be at high risk of mental illness and suicide, and we have to stand up for them and protect them. As sad as it is, it is worth forgoing our right to equal marriage, if it protects the young and vulnerable members of our society. It is worth holding off until we can all be validated equally. And so it is not worth giving these bigots an opportunity to attack us.”

 

“Firstly, I believe it is absolutely offensive that the entire country should have to vote on whether or not I should have the same rights as my heterosexual friends and neighbours. Secondly, as we are already seeing the damaging consequences of creating a platform, via the plebiscite, for homophobic hate speech. Violently homophobic flyers are already being dropped in letterboxes all over the country, and this is only the beginning. I fear for the safety of myself, my partner, and my friends. I fear for the safety of LGBT youth. And for what? A plebiscite will not even bind the government to action. Turnbull promised us equality, and he has utterly failed to deliver on that promise.”

 

Finally, these five answers from LGBTIQ parents demonstrate more ‘family values’ in a few short paragraphs than the Australian Christian Lobby has shown in a decade of campaigning against marriage equality:

 

“I do not want to give a platform to people who will turn this into a debate about whether society wants the children of gay and lesbian people. For some weird reason this is exactly what happens every time they start to have their say. My children are 11 and 8 and it is hard enough as it is being the ‘gay mums’ kids in their suburban school. It would be good if the legislation was passed, but I do not want the debate as it will injure my kids’ sense of being wanted in society.”

 

“Block it because it is unnecessary, expensive and not binding. But mostly because I have three kids and they will be the focus of the ‘no’ campaign. I am extremely fearful of the effect it could have on their mental health and general well-being.”

 

“It’s enough that my wife and I aren’t legally recognised by the Australian government, we constantly face discrimination daily, but to give the horrible people who are hell bent against my family a platform to spread their hate is ludicrous. Why should I have to explain to my 3yr old that his family is as valid as any other?”

 

“I think the plebiscite is an expensive, invasive process. I don’t like the idea of my human rights being put to a public vote, and I fear the negative impact a public opinion poll on same sex relationships could have on my 4 year old daughter and other children like her raised in rainbow families.”

 

“I would rather wait for real equality than expose my 3 young kids to a hate campaign about their families. The hate campaign by the ACL etc is already having a negative impact on my 9, 8 and 6yo kids. I do not want a full on, federally funded hate campaign that we all know is going to be aimed at children. It is wrong. It is not a price I am willing to pay to get marriage equality.”

 

As I said earlier, these are passionate, thoughtful and eloquent reasons for why so many members of the LGBTI community want to see the plebiscite blocked. I sincerely hope that, even if you do not listen to me, you do listen to them.

 

**********

 

Given the failure of the Turnbull Government to provide any information about its proposed plebiscite ahead of the federal election on 2 July this year, LGBTI people responding to my survey indicating they wanted to see the plebiscite blocked were doing so on the basis of principle – essentially saying that, irrespective of any details that might eventually be announced, they did not believe a plebiscite was the right way forward on this issue.

 

One-in-five respondents did indicate that they wanted to see more details before making up their minds. Unfortunately, on the basis of the Government’s announcements yesterday (Tuesday 13 September) – where they finally added some flesh to the bare bones of their plebiscite – it is highly unlikely many would now be convinced to support their proposal.

 

That is because there are significant problems with the mechanism outlined by the Attorney-General, Senator George Brandis, and Special Minister of State, Senator Scott Ryan, via their media release and press conference yesterday.

 

First of all, and the issue that seems to have attracted the most attention, is that the Turnbull Government is proposing to allocate $7.5 million to the ‘Yes’ case, and $7.5 million to the ‘No’ case (bringing the overall cost of this exercise to $170 million), despite the fact that the arguments surrounding marriage equality have been made for more than a decade.

 

The prospect of the Australian Christian Lobby, Marriage Alliance and Australian Marriage Forum being provided with taxpayer’s money to spread homophobia, biphobia, transphobia and intersexphobia is horrifying to many people, myself included. And the idea of publicly-funded television commercials linking rainbow families with the Stolen Generations, the introduction of marriage equality with the rise of Nazism, or inciting ‘bathroom panic’ against trans women – comments ACL Managing Director Lyle Shelton has made just this year[xii] – is particularly offensive.

 

But, from my perspective, an even bigger problem with the proposed plebiscite is the question: “Should the law be changed to allow same-sex couples to marry?” This question does not mean marriage equality, because, based on this wording, it would not include many transgender (and especially non-binary identifying people) and intersex people who are currently prohibited from marrying but whose relationships do not fall within the category of ‘same-sex’ couple.

 

It is possible that this issue will be addressed in the amendments to the Marriage Act itself. But we have not seen the Government’s proposed substantive changes, and do not know when these will be released. Without being satisfied that all LGBTI people will be allowed to marry, I believe it is impossible for people of good conscience to pass the enabling legislation.

 

Other problems that have already emerged with the details announced yesterday include:

 

  • The proposed plebiscite will not be ‘self-executing’, nor will it be binding on any Government MP (with some indicating that they will vote against, irrespective of the result) – which means that, even after spending $170 million and wasting three-to-six months on this exercise, amendments to the Marriage Act will still be subject to a conscience vote (leaving the fundamental question, of what the point of the plebiscite is, unanswered).
  • While the Government has indicated that the ‘criteria for success’ will be 50% +1 vote nationally, it has also confirmed that results will be reported based on individual electorates and by state or territory, making it easier for MPs and Senators to vote against equality on the basis of their individual constituency, even if the nominated hurdle has been cleared.
  • The limit on tax-deductible contributions, of $1500 per individual, may prima facie appear fair but in practice disadvantages the ‘Yes’ case, because a number of religious organisations – who do not pay tax to begin with – will still be able to accept donations and spend this money on public advertising promoting the ‘No’ side, and
  • It has already been revealed[xiii] that, outside of any publicly-funded commercials, there will be absolutely no requirement for ‘third party’ advertisements to be truthful, increasing the likelihood of anti-LGBTI vilification on the nation’s airwaves.

 

These are just the problems that are already in the public domain. We are still not aware, because the Government has not made the details of its amendments to the Marriage Act itself known, whether it will introduce new ‘religious exceptions’ allowing people to discriminate against LGBTI couples, and if so how broad these new ‘rights to bigotry’ might be (noting that anything beyond the existing right for ministers of religion to refuse to perform a religious ceremony is completely unacceptable[xiv]).

 

In the same way that the more I considered the idea of a plebiscite, the stronger my personal opposition became, the more that is revealed about Turnbull’s proposed mechanism to conduct this vote, the less it is able to be supported.

 

**********

 

In conclusion, I would like to reiterate my call on you, as Labor Party MPs and Senators, to cast your vote against Malcolm Turnbull’s enabling legislation to hold a plebiscite on marriage equality.

 

Please block the plebiscite because it is unnecessary, inappropriate, divisive, wasteful, unprecedented, bizarre, inconsistent, radical, unfair and frankly dangerous.

 

Please block the plebiscite because it will inevitably harm young and vulnerable members of the LGBTI community.

 

Please block the plebiscite in the name of thousands of couples like Steve and I, who desperately want to get married but who are prepared to wait rather than risk seeing that harm inflicted others.

 

Please block the plebiscite because the majority of LGBTIQ Australians believe that is the right course of action.

 

And please block the plebiscite, even if there is a risk doing so might result in marriage equality being delayed by three years.

 

Of course, that does not have to be the case. There is absolutely no reason why 226 representatives of the Australian people, sitting in the House of Representatives and Senate in Canberra, could not debate, vote on and resolve this issue, all before the end of October.

 

Despite yesterday’s protestations by the Prime Minister, and Attorney-General, and their attempts both to apportion blame and to speak on behalf of gay and lesbian couples around Australia, we are more than capable of thinking, and speaking, for ourselves.

 

We know who the real roadblock on the path to equality is. We are completely aware of who it is standing in the way of our relationships finally being treated fairly under the law.

 

It is a Government that, rather than vote on the issue of marriage equality in the ordinary way – in parliament – has instead chosen to engage in a $170 million glorified national opinion that will take up to six months and won’t even be binding on its own MPs.

 

It is an Attorney-General, and Cabinet, and Party-room, who have engineered a ‘mean and tricky’ process, designed to increase the chances of the plebiscite’s defeat, one which will allow taxpayers’ money to be spent on vilifying LGBTI Australians, our relationships and our families.

 

And it is a Prime Minister who claims to support marriage equality, but who is not prepared to do so on the floor of our nation’s parliament. Who says he is on our side, but will not actually do anything that demonstrates that commitment. Who is more interested in retaining his job than in recognising the rights of LGBTI people.

 

They are who I will blame, as will the vast majority of lesbian, gay, bisexual, transgender and intersex Australians, should the current Parliament be unable to pass marriage equality during this term.

 

So, I implore you to listen not just to me, but to the views of literally hundreds of LGBTI people who undertook my survey, who want you to block the plebiscite.

 

Please join with the Greens, Nick Xenophon Team and Derryn Hinch in voting against the Government’s enabling legislation, thereby increasing pressure to resolve this issue in Parliament – the same place that prohibited equal treatment of our relationships in the first place.

 

Please, please, please block Malcolm Turnbull’s marriage equality plebiscite.

 

Sincerely

Alastair Lawrie

 

**********

 

Hon Bill Shorten MP Official portrait 20 March 2013

Will Bill Shorten be the leader that Malcolm Turnbull clearly isn’t?

 

Footnotes:

[i] For more on the first four arguments raised, please see my submission to the Senate Inquiry which considered this issue in late 2015: No Referendum. No Plebiscite. Just Pass the Bill. https://alastairlawrie.net/2015/08/29/no-referendum-no-plebiscite-just-pass-the-bill/

[ii] For more on exactly how bitter and nasty the campaign is likely to become, please see: Lyle Shelton’s ‘Respectful’ Debate. https://alastairlawrie.net/2016/09/06/lyle-sheltons-respectful-debate/

[iii] For a longer list, please see: 7 Better Ways to Spend $158.4 million. https://alastairlawrie.net/2015/12/22/7-better-ways-to-spend-158-4-million/

[iv] Please also see my 2016-17 Pre-Budget Submission: Save $158.4 million – Scrap the Marriage Equality Plebiscite. https://alastairlawrie.net/2016/02/02/2016-17-pre-budget-submission-save-158-4-million-scrap-the-marriage-equality-plebiscite/

[v] The next four reasons (5-8) are based on the following post: Malcolm Turnbull’s Proposed Marriage Equality Plebiscite is Truly Extraordinary. https://alastairlawrie.net/2016/05/22/malcolm-turnbulls-proposed-marriage-equality-plebiscite-is-truly-extraordinary/

[vi] An argument which at the very least has seen WA Liberal Senator Dean Smith indicate he will not vote for the enabling legislation, although so far he is alone in this position. Brisbane Times, Dean Smith: Not voting for plebiscite is a vote for parliamentary democracy, 13 September 2016. http://www.brisbanetimes.com.au/comment/openly-gay-liberal-senator-dean-smith-wont-vote-on-samesex-marriage-plebiscite-20160913-grf006.html

[vii] Lateline, Interview with Michael Kirby, 26 August 2016: http://www.abc.net.au/lateline/content/2016/s4527742.htm

[viii] Daily Telegraph, Gay man bashed twice in Waterloo: “I’ve never been so scared in my life and I thought I would die”, 23 February 2016. http://www.dailytelegraph.com.au/news/nsw/gay-man-bashed-twice-in-waterloo-ive-never-been-so-scared-in-my-life-and-thought-i-would-die/news-story/f269aa5cb3d623754e7e16109e0a1147

[ix] Please see: To Plebiscite or not to plebiscite? https://alastairlawrie.net/2016/07/17/to-plebiscite-or-not-to-plebiscite/

[x] Please see: Plebiscite Survey Results: Part 1. https://alastairlawrie.net/2016/08/07/plebiscite-survey-results-part-1/

[xi] Please see: Plebiscite Survey Results: Part 2, In your own words. https://alastairlawrie.net/2016/08/21/plebiscite-survey-results-part-2-in-your-own-words/

[xii] Please see: Lyle Shelton’s ‘Respectful’ Debate. https://alastairlawrie.net/2016/09/06/lyle-sheltons-respectful-debate/

[xiii] Guardian Australia, Marriage equality plebiscite ads run by third parties won’t need to be true, 13 September 2016. https://www.theguardian.com/australia-news/2016/sep/13/marriage-equality-plebiscite-campaign-ads-run-by-third-parties-wont-need-to-be-true

[xiv] Please see: Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it? https://alastairlawrie.net/2014/12/21/senator-leyonhjelms-marriage-equality-bill-undermines-the-principle-of-lgbti-anti-discrimination-should-we-still-support-it/

To Plebiscite or not to Plebiscite?

To plebiscite or not to plebiscite? That is the question confronting us right now.

 

Malcolm Turnbull and his Liberal-National Government won re-election on Saturday July 2, albeit by the narrowest of margins in the House of Representatives. According to their election policy, they will introduce legislation in the second half of 2016 to hold a plebiscite on marriage equality, either in November this year or (more likely in my opinion) in March 2017.

 

Nevertheless, the picture in the Senate remains less clear, where, with counting continuing, there is a possibility the ALP, Greens and Nick Xenophon Team will collectively hold 38 Senators. All three parties formally support marriage equality and, based on those numbers, would be in a position to block the legislation required to hold the plebiscite.

 

The question is whether we – the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community – want them to block the plebiscite or not.

 

For regular readers of this blog, that question might seem somewhat unexpected. Since it was first announced by then-Prime Minister Tony Abbott in August 2015, I have consistently, and often vociferously, opposed the plebiscite on marriage equality, including by:

 

 

As someone who has been engaged for more than six years, but who doesn’t want Steve and my right to marry to come at the expense of potential harm to young and vulnerable LGBTIQ people, my personal view would be that we should continue to oppose the plebiscite.

 

But this issue, whether to block the plebiscite or not, is much bigger than any one individual, or couple – it will affect nearly all members of the LGBTIQ community in some way.

 

From older couples for whom time may be running out, to younger people who have grown sick and tired of waiting for our politicians to catch up to public opinion, there may be valid arguments to ‘accept’ the plebiscite – if that is indeed the only option now on the table.

 

On the other hand, many rainbow families legitimately fear the damage that the anticipated homophobic and transphobic campaign by opponents of marriage equality may cause to them and their families. Meanwhile, other members of the LGBTIQ community for whom marriage equality is not a high priority may experience the harms of a plebiscite without enjoying any of the benefits.

 

For all of these reasons and more, I have decided to conduct a survey of the LGBTIQ community’s opinions about the plebiscite, and what we, as a community, should do next. It will be open from today (Sunday 17 July) for two weeks, closing on Sunday 31 July, and I would really appreciate it if you could take five minutes of your time to express your view:

 

This survey is now closed. 

 

As you will see in the survey, as well as asking for some optional demographic information (which will help to identify whether there are different opinions within the community on the basis of whether people are LGBTI and/or Q, their relationship status, age and whether or not they have children), the primary question (indeed the only mandatory question) asks participants to choose between the following three options:

 

  1. To block the plebiscite, if possible

 

The ‘if possible’ is added here because the Senate numbers might change in late counting, meaning the plebiscite may proceed regardless of the community’s views. However, assuming Labor, the Greens and Xenophon together reach 38 seats, this option would involve asking these parties to demonstrate their stated support for marriage equality by blocking the plebiscite and instead continuing to push for a parliamentary vote as quickly as possible.

 

The obvious benefit of this option is it would avoid holding a public vote costing at least $160 million, and almost inevitably preceded by a bitter and nasty campaign against LGBTIQ Australians by the Australian Christian Lobby, Australian Marriage Forum, Marriage Alliance and others.

 

Nevertheless, there is also a real chance that, once the plebiscite is blocked, Turnbull and his Coalition colleagues refuse to hold any parliamentary vote, meaning the equal recognition of our relationships is delayed until at least 2019 (or beyond). Blocking the plebiscite would also be open to mischaracterisation by our opponents (who could claim we are ‘afraid of democracy’ rather than being genuinely concerned about their hate-mongering).

 

  1. To accept the plebiscite, and fight to win

 

This option doesn’t necessarily mean agreeing that a plebiscite on this issue is desirable. Nevertheless, it would involve pragmatically acknowledging that, following the re-election of the Liberal-National Government, a plebiscite might be the best chance of achieving marriage equality during this term of Parliament.

 

As discussed earlier, there are risks in this approach. I’m not sure anybody believes Malcolm Turnbull’s naïve statements that the plebiscite debate will be ‘respectful’. As a result, it is highly likely young and vulnerable LGBTIQ people will experience real harm. And, even if we ‘win’ the plebiscite, there is still no guarantee Coalition MPs will actually pass marriage equality (or do so promptly, noting it took seven years for the national anthem plebiscite to be implemented).

 

But, we also need to consider the fact that there are many couples for whom waiting until 2019 (or beyond) is simply not feasible – a plebiscite might be their only option to legally wed in their own country before one or both passes away. It is, undeniably, a ‘big call’ to block what could be the only way that people who grew up in a different time, and a much less accepting country, might finally be allowed to marry.

 

  1. To wait to see the details of the plebiscite

 

Despite being announced as Liberal-National Party policy more than 11 months ago – and forming part of Turnbull’s re-election platform – there is still a lack of clarity around several key aspects of the proposed marriage equality plebiscite.

 

151222 Turnbull

Prime Minister Malcolm Turnbull has promised to hold a plebiscite on marriage equality, but – even after July 2 – still can’t tell us key details.

 

For example, it is uncertain what the exact question will be, and it may be more, or less, acceptable depending on the language used (such as whether it refers to same-sex marriage, or marriage between any two adults, or whether it even includes a reference to ‘traditional marriage’?).

 

The recent election campaign also revealed that there remains internal Coalition disagreement on the measure of ‘success’ – whether a simple majority will be sufficient, or whether it will also be required to be passed by a majority of voters in a majority of electorates (which will obviously be more difficult to achieve).

 

Finally, Prime Minister Malcolm Turnbull and Attorney-General Senator George Brandis have both so far refused to answer questions about the breadth of religious exceptions that may be included in any subsequent Bill to amend the Marriage Act – whether they will only apply to ministers of religion, whether they will also allow civil celebrants to discriminate against LGBTIQ couples, or whether they will attempt to include new ‘special rights’ to discriminate for wedding-related small businesses (eg florists, bakers and photographers etc).

 

For these reasons, some people might be willing to accept some plebiscites (asking a straightforward question, only requiring a simple majority, and not expanding religious exceptions) but not others, and these people may wish to see the details of any plebiscite before deciding whether it should be blocked or not.

 

**********

 

To choose your preferred option, out of the three presented above, please complete the survey here before Sunday 31 July:

 

This survey is now closed.

 

I will publish the results of the survey on Sunday 7 August (prior to the return of Commonwealth Parliament). They will inform the advocacy that I undertake on this issue from that point forward. If a clear majority of respondents favour blocking the plebiscite then I will continue to strongly campaign against it.

 

On the other hand, and despite any personal misgivings, if the majority of the LGBTIQ community believes this is something that, while not desirable, is ‘the pragmatic choice’, then I will turn my energies and efforts toward helping the ‘Yes’ case to succeed. [Of course, if the community is almost evenly divided on this question, then that decision becomes much more complicated].

 

Finally, I expect some opponents of marriage equality may query whether, by conducting my own survey of LGBTIQ community opinion about this topic, I am in effect endorsing the Turnbull Government’s proposal to hold its own national opinion poll. Pre-empting this criticism, I would note the following:

 

  • This survey will not cost more than $160 million to hold (or the equivalent of charging every Australian voter $10 to take part)

 

  • There is no easily-identifiable alternative to conducting this survey (unlike the plebiscite, which could be avoided by Parliament simply doing its job and voting on – and hopefully passing – legislation, potentially within a matter of weeks)

 

  • Conducting this survey will not lead to community division, and will not cause substantial harm to young and vulnerable LGBTIQ people, and

 

  • This survey poses a question of process – asking LGBTIQ people, who are the group with the most to win (marriage equality) and lose (through the expected homophobic and transphobic campaign by our opponents) from a plebiscite, for their preferred way to achieve equal relationship recognition. It is not asking all Australians – many of whom will not be significantly affected by marriage equality either way, and none of whom will experience any adverse impacts due to its passage – whether the relationships of LGBTIQ people are valid or otherwise.

 

This survey is now closed.

 

 

 

 

Why is Australia so far behind on marriage equality?

Tonight, exactly one year ago, the US Supreme Court handed down its historic decision in Obergefell v Hodges, making same-sex marriage legal in all 50 states. In doing so, they also reinforced the sinking feeling for many Australians, myself included, that we have fallen far behind our contemporaries around the world as we continue to refuse to treat the relationships of lesbian, gay, bisexual, transgender and intersex (LGBTI) people equally under the law.

 

Of course, the United States was by no means the first place in the world to introduce marriage equality – that honour belongs to the Netherlands, which has had marriage equality since 1 April 2001, or more than 15 years ago. The list of countries that have joined their ranks in the time since grows longer by the year:

 

  • The Netherlands (2001)
  • Belgium (2003)
  • Spain (2005)
  • Canada (2005)
  • South Africa (2006)
  • Norway (2009)
  • Sweden (2009)
  • Portugal (2010)
  • Iceland (2010)
  • Argentina (2010)[i]
  • Denmark (2012)
  • Brazil (2013)
  • France (2013)
  • Uruguay (2013)
  • New Zealand (2013)
  • England & Wales (2014)
  • Scotland (2014)
  • Luxembourg (2015)
  • Ireland (2015)
  • United States (nationwide 2015)
  • Colombia (2016)
  • Finland (2017)
  • Taiwan (2017 – to take effect by 2019)
  • Germany (2017)
  • Malta (2017)

 

But, perhaps because of our community’s disproportionate focus on events in the United States, or simply because it was the straw that broke the camel’s back, the fact that, as of 12 months ago, LGBTI couples anywhere from Albany to Alabama and Alaska could get married, while we still could not, was the point at which many people felt we could no longer ignore the reality that, on marriage equality, Australia has officially become a backwater.

 

The question I am interested in asking is why? What are the factors that have caused Australia to fall so far behind its counterparts on this fundamental human rights issue? Why, when we compare ourselves to countries like the UK, US, Canada, New Zealand and South Africa, is it just us and Northern Ireland left in discriminating against couples on the basis of their sexual orientation, gender identity and intersex status?

 

There is a range of possible reasons that I will explore below, but first I want to highlight one factor that has not contributed to our lack of progress, and that’s public support. In short, the level of community support for marriage equality in Australia – which has consistently polled above 50% for the past seven or eight years, and is now frequently above 60% or even 70% – is not materially different to that recorded in countries that have already introduced this reform. Indeed, in several of the countries listed above, marriage equality has been implemented with much lower support from the public. So, if a lack of community support isn’t the problem, what is?

 

  1. The lack of a Bill of Rights

 

Perhaps the most obvious reason why Australia is behind the United States on marriage equality is that, while the US Bill of Rights allowed the Supreme Court in Obergefell to determine that state same-sex marriage bans are a violation of the Fourteenth Amendment’s Due Process and Equal Protection clauses, Australia has no equivalent Bill of Rights (or even nation-wide Human Rights Act). Constitutional rights have also played key roles in the history of marriage equality in other countries, including Canada and South Africa.

 

In contrast, given the limited human rights protections contained in our own Constitution, when the High Court of Australia was asked to rule on the constitutionality of same-sex marriages conducted in the ACT, all it could determine was whether marriage equality could be passed by Parliament at all, and if so at which level (only by Commonwealth Parliament as it turns out) rather than being able to find that the denial of the right to marry on the basis of sexual orientation, gender identity or intersex status was in itself ‘unconstitutional’.

 

  1. The power of the right wing of the Liberal-National Coalition

 

In the absence of a constitutional ‘circuit-breaker’, the onus has been on Commonwealth MPs and Senators to pass marriage equality. Unfortunately, of the 15 years since the Netherlands led the way, the Liberal and National Parties have formed Government for nine. This included the Howard Government that, in 2004, introduced legislation to amend the Marriage Act to ensure couples married overseas would not be treated equally under Australian law.

 

In the 12 years since then the Coalition’s stance against marriage equality has barely softened – with exactly zero Liberal or National Party MPs or Senators voting in favour of change when it was last voted on in September 2012 (and only one, Senator Sue Boyce, abstaining).

 

Even in the most recent term of Parliament, right-wing members of the Abbott and then Turnbull Governments succeeded first in blocking any substantive vote on marriage equality, and then in adopting a policy of holding an unnecessary, wasteful and divisive plebiscite before holding any such vote in the future.

 

The National Party – which can itself be considered one large bloc of the right wing of the Coalition – felt so strongly that Parliament should not vote on marriage equality without a plebiscite, it even included this condition in its agreement with Malcolm Turnbull after he deposed Tony Abbott as PM in September 2015.

 

The power of the right wing within the conservative side of politics, and their obsession with marriage equality (or at least, their consistent focus in denying it) appears to have been a much stronger force in Australia than in comparable countries, such as New Zealand and England & Wales, both of which passed marriage equality during Conservative Governments[ii].

 

  1. The power of the right wing of the Australian Labor Party

 

Unfortunately, it is not just on the conservative side of politics where people opposed to LGBTI equality have exercised disproportionate influence in Australia – the right wing of the ALP, and particularly the hard-line SDA (or ‘Shoppies’) led by religious fundamentalist Joe de Bruyn, have also played a key role in denying equality to LGBTI Australians.

 

This included helping to bind ALP parliamentarians to support Howard’s ban on marriage equality in 2004, but then opposing an attempt to impose a binding vote in favour of marriage equality at the ALP National Conference in December 2011. And, while a majority of ALP House of Reps MPs, and Senators, voted in favour of marriage equality in September 2012, it was still a much lower proportion that supported change than their comrades in both UK and New Zealand Labour.

 

In recent years the tide seems to have finally turned against the homophobes of the hard right of the Australian Labor Party, with the 2015 National Conference agreeing to support a binding vote from the 2019 federal election (albeit long after they should have), and their strengthening position in favour of marriage equality compelling the resignation of ‘Shoppie’ Senator Joe Bullock in March 2016. Nevertheless, the SDA’s influence in ensuring marriage equality was not passed before today should not be ignored.

 

  1. The lack of diversity among Australian parliamentarians

 

The fact that both the conservative and progressive sides of Australian politics have had higher levels of opposition to marriage equality than their equivalent parties elsewhere cannot be considered a mere coincidence. One of the reasons why I believe this is the case is the fact our Parliament is far less diverse than those in other countries.

 

The most obvious example, at least with respect to marriage equality, has been the dearth of ‘out’ LGBTI politicians in Commonwealth Parliament. While there has been a small number of LGBTI Senators over the past 10-15 years, the first out gay man to be elected to the House of Representatives, Trent Zimmerman, took his seat less than five months ago[iii].

 

This places Australian a loooooooong way behind places like Canada, the UK, New Zealand (which had the world’s first transgender MP, Georgina Beyer, last century) and even the United States. And, based on the principle that it is much harder to deny someone’s rights when they are ‘in the room’, our historical absence from the ‘House of Government’ has not only left us sitting outside looking in, it has left us behind too.

 

But it’s not just the lack of out LGBTI parliamentarians that has held us back – I believe the under-representation of female MPs and Senators has also played a part. While in the mid-to-late 1990s female representation in Commonwealth Parliament was among the highest in the world, Australia’s progress in this area has stalled over the past decade, with the proportion of women in the House of Representatives in particular stuck around 25%.

 

According to Inter-Parliamentary Union (IPU) data, Australia slipped from 20th in the world on female representation in 2001, to 48th in 2014, a downward trend that shows no signs of abating[iv]. As well as being a negative in and of itself, this lack of diversity undermines marriage equality, both because women have consistently shown higher levels of support for this reform than men and because a more gender-balanced, and therefore demographically representative, Parliament might be expected to be closer in opinion to the community’s existing strong support for marriage equality.

 

  1. The lack of diversity in Australia’s commercial media

 

Perhaps more controversially – especially to some commentators who believe that marriage equality is a trivial issue only placed on the public agenda by ‘leftists’ at the ABC – I believe the lack of diversity in our commercial media has also had a negative influence on marriage equality in this country.

 

I’m speaking in particular of newspapers, and especially those owned by Rupert Murdoch. As a former ‘political staffer’ I can attest that the main stories, and lead opinion pieces, in the day’s papers, including Australia’s only national broadsheet (The Australian), and the highest circulation papers in our three major cities (The Daily Telegraph in Sydney, The Herald Sun in Melbourne and The Courier Mail in Brisbane), are paid very close attention.

 

The fact all four newspapers have been opposed to marriage equality – almost universally at The Australian, and also by the main commentators at the tabloids (including Andrew Bolt, Piers Akerman and Miranda Devine, and Des Houghton) – means the views our politicians are reading about this issue are largely out of touch with those of the voters they are there to represent. Even in 2016, with the newspaper industry in what appears to be a death spiral, these NewsCorp publications continue to exert disproportionate influence on our politicians.

 

In short, I suggest the lack of diversity in our commercial media has meant that MPs and Senators have been led to believe the issue of marriage equality, and LGBTI rights more broadly, is far more ‘controversial’ than it actually is.

 

  1. The existence of de facto relationship recognition

 

The only ‘positive’ reason on this list is the fact that, at least at state and territory level, Australia has long had de facto relationship recognition, including for same-sex couples. Under Commonwealth law, LGBTI de facto relationships were also finally recognised on the same basis as cisgender heterosexual relationships by the Rudd Labor Government’s Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 and Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008.

 

These long-overdue reforms, to at least 85 different pieces of Commonwealth legislation, mean that – outside of marriage – LGBTI couples now largely enjoy the same rights as other couples.

 

The reason why this has had an impact on marriage equality is that, unlike some countries (and especially parts of the United States), relationship recognition here is not an all-or-nothing affair – just because you aren’t married doesn’t automatically mean you are considered ‘single’ under Australian law (although, as some tragic recent case studies have shown, sometimes these de facto rights are not respected in practice[v]). If these de facto rights did not exist, it is likely there would be even greater urgency for marriage equality in Australia.

 

  1. The lack of leadership by Australia’s Prime Ministers

 

Irrespective of the above half-dozen factors, I genuinely believe that, if we had had Prime Ministers who were actual ‘leaders’ on this issue over the past dozen years, the outcome could have, would have, been very different. In reality, we have had five PMs who have each demonstrated serious flaws in their approach to marriage equality.

 

John Howard: Instead of having a constructive debate about marriage equality in 2004, Prime Minister Howard almost instinctively sought to use the issue as a pre-election wedge against the Mark Latham-led Opposition. The fact that the relationships of LGBTI Australians would be devalued and demeaned as a result seemed to matter naught to a man who just three years previously had based an entire campaign on attacking refugees.

 

Kevin Rudd: In hindsight, the first stint of Prime Minister Rudd (November 2007 to June 2010) can be seen as a major missed opportunity. Too risk averse, and notoriously focus-group obsessed, he failed to grasp the possibilities of taking leadership on this issue – and therefore didn’t pursue it at the 2009 ALP National Conference. If he had, Rudd could have seized control of the agenda, just as public support in Australia was rising, thereby adding to his ‘legacy’. While he did support marriage equality during his second stint as PM (June to August 2013) he was never going to win re-election or be in a position to pass it.

 

Julia Gillard: The Prime Ministership of Julia Gillard is still the most disappointing to me on this issue (although Malcolm Turnbull is rapidly catching up – see below). Supposedly left wing, and an avowed atheist, the expectation was that she was an ideal candidate to make progress on marriage equality.

 

Wrong. For whatever reason (and speculation has long centred on a possible deal with Joe de Bruyn and the SDA to oppose marriage equality as a condition of their support for her as PM), Ms Gillard did everything in her power to deny the right to marry to LGBTI Australians, including blocking the resolution for a binding vote at the December 2011 ALP National Conference, and voting against it herself in the House of Representatives in September 2012. Whatever her other merits, I will never forgive her for standing squarely in the way of ‘equal love’.

 

Tony Abbott: In some respects, there is less ‘disappointment’ in Prime Minister Abbott – because nobody ever expected anything different from him. A staunch Catholic, and someone who brought his religious fundamentalism to bear in political office, he was never going to be the Prime Minister to ‘lead’ on this issue. Although the fact one of his last acts as leader was to oversee the six-hour joint party room meeting that eventually settled on a plebiscite (primarily as a means to deny or at least delay marriage equality) means he nevertheless takes his place in the pantheon of Australian Prime Ministers who have ‘screwed over’ LGBTI Australia on this issue.

 

Malcolm Turnbull: Last, and in many ways, ‘least’, there’s the current Prime Minister, Mr Turnbull, who claims to support marriage equality, he just doesn’t want to actually have to do anything about it. Within 24 hours of toppling Tony Abbott, he had signed a new Coalition Agreement with the National Party, caving in to them – seemingly without protest – and their demands to continue with the plebiscite on marriage equality. And he has soldiered on with this policy, right up to the July 2 election, and will presumably hold it in late 2016 or early 2017 should he win next Saturday.

 

An intelligent man, Turnbull does so knowing that it is entirely unnecessary, and, at $160 million, fundamentally wasteful. And he continues to advocate a plebiscite even though he understands the harms it will inevitably cause to young and vulnerable LGBTI people. Unlike others inside his party, I’m not going to accuse him of not caring about these adverse impacts – he just cares about them far less than his obvious desire to remain Prime Minister.

 

151222 Turnbull

Prime Minister Malcolm Turnbull, who probably cares about the harms a plebiscite will cause young & vulnerable LGBTI people – just less than his desire to remain PM.

 

These are seven reasons why I believe Australia is so far behind other countries on this issue. It is not an exhaustive list – no doubt others will suggest additional reasons (including possible shortcomings within the LGBTI movement itself, although from my perspective that is a topic for a different post, on a different day – and probably after the battle for marriage equality has finally been won).

 

One final point I would make, however, is that if the Liberal and National Parties are re-elected on July 2 then this list will automatically expand to eight. Because, if Turnbull is returned, and he does hold a plebiscite on marriage equality, then Australia will have found a unique way to ‘screw up’ on this subject.

 

Not one of the countries listed at the start of this post introduced marriage equality by way of a non-binding public vote. As far as I’m aware, only in Ireland has it been passed at national level via referendum – but it was actually needed there to change the Constitution.

 

Holding a plebiscite, which, as multiple reports over the past few days have confirmed won’t even be binding on Cabinet Ministers, let along the Bernardis and Christensens of the Coalition backbench, will involve yet more delay, and more disappointment for the LGBTI community.

 

So, if you’re reading this before July 2, then please think about this issue before you cast your vote, and put the Liberals and National last (or next to last, only ahead of extremists like Pauline Hanson and Fred Nile), so we can avoid an unnecessary, wasteful and divisive plebiscite. If we elect Bill Shorten’s Labor Party, we might even get to add Australia’s name to the above list between Colombia and Finland. Above all, we could end the wait of LGBTI couples in this country who have been denied equality for far too long.

 

Footnotes:

[i] Marriage equality has also been available in Mexico City from 2010, and is now legal in four additional states, with all being recognized nation-wide.

[ii] While only a minority of Conservative MPs in the UK, and National Party MPs in New Zealand voted in favour of marriage equality, in both places it was at least 40%, which is substantially higher than what would be expected even under a ‘free vote’ within the Coalition in Australia.

[iii] The lack of LGBTI representation in Australian Parliaments is an issue I have written about previously, see: LGBTI voices absent from the chamber

[iv] From Australian Parliament House Library “Representation of Women in Australian Parliaments 2014”.

[v] Including Tasmanian man Ben Jago who was allegedly mistreated by Tasmanian Police and the Tasmanian Coroner’s Office after the death of his de facto partner: Samesame, “I was treated like I meant nothing after my partner died”, 8 November 2015.

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” : https://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”: https://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”: https://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:

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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