Response to Letter to Malcolm Turnbull About the Marriage Equality Plebiscite

A lot has happened in the 10 days since I first posted my letter to Malcolm Turnbull about the marriage equality plebiscite.

To begin with, a number of Coalition MPs have publicly revealed that, irrespective of the outcome of any plebiscite, they will continue to vote against the equal recognition of LGBTI relationships.

This conservative crusade was led by Senator Eric Abetz who told The Guardian that:

“everyone knows my view is very strongly that a marriage between a man and a woman is the foundational institution for socialising the next generation. And every member of parliament will make up his or her mind after the plebiscite is held. People will take into account the views of the electorate, the views of the nation and their own personal views… There will be people in the parliament who could not support the outcome of a plebiscite whichever way it went.”

His view – that if the voters of Australia supported marriage equality at a plebiscite they could essentially ‘get stuffed’ – was soon supported by both fellow Liberal Senator Cory Bernardi, who told Sky News that “[a] plebiscite is a glorified opinion poll, and no government should be bound by that” and Nationals Senator Bridget McKenzie, the latter so committed to opposing LGBTI equality she is willing to deny legal rights to her own brother.

Then, former Prime Minister Tony Abbott (who similarly thinks his own relationship more worthy of recognition that that of his sibling) jetted off to address an audience of homophobes in the US, telling them that:

“[w]e shouldn’t try to change something without understanding it, without grasping why it is one that one man and one woman open to children until just a very few years ago has always been considered the essence of marriage and the heart of family… We can’t shirk our responsibilities to the future, but let’s also respect and appreciate values and institutions that have stood the test of time and pass them on, undamaged, when that’s best. That’s a goal we should all be able to share” [emphasis added].

Despite claiming that he still supports holding a marriage equality plebiscite, it is clear which outcome he wanted, placing into serious doubt his sincerity in introducing legislation following a successful ‘yes’ vote (were he still Prime Minister – a position to which he obviously wishes to return).

The Australian Christian Lobby has also done its job in undermining the credibility of any marriage equality plebiscite, with comments reported by The Guardian that:

“Abbott emerged from that meeting announcing the Coalition had decided to use its numbers to block the introduction into the Australian parliament of yet another bill to change the definition of marriage… Instead, a people’s vote known as a plebiscite would be held sometime after the 2016 election, kicking the issue into the long grass (putting the issue off) and blunting the momentum of same-sex marriage lobbyists” [emphasis added].

Australian Marriage Equality head Rodney Croome, quoted in the same article, quite accurately summed up these developments with the following: “[a]s a policy option, the plebiscite is collapsing under the weight of its own cynicism.”

Indeed, one of the most pleasing aspects of this week’s debate has been the increasing media scrutiny of the proposal to hold a plebiscite on marriage equality, with respected journalists such as Lenore Taylor describing it asdaft and Mark Kenny observing that:

“Malcolm Turnbull’s commitment to the plebiscite can be seen for what it really is: an internal matter – the price of entry to the leadership. Slow and costly… his own credibility with voters is also at stake if he is seen to trade principles in pursuit of power and an easier life.”

The final major development of the past 10 days was yesterday’s (Friday 29 January 2016) announcement by Australian Marriage Equality that it now believes there is majority support for passing majority equality legislation in both houses of parliament – if only the Coalition were willing to grant their MPs and Senators a free vote.

All of which puts the issue of marriage equality squarely in the Prime Minister’s court (the current one, Malcolm Turnbull, not Prime Minister-in-exile Tony Abbott). The original proposal to hold a marriage equality plebiscite may not have been his, but, now that he is in the Lodge, he owns it.

It is up to Malcolm Turnbull to decide whether Australia will be subjected to a pointless plebiscite on this issue. The time has come for him to show whether he is a leader who is strong enough to back a free vote, or whether he is instead prepared to allow this farce to drag on for not just months, but years, solely for reasons of political expediency.

The signs, however, are not good. Turnbull reiterated the Government’s position in support of a plebiscite to 3AW Radio just yesterday, saying it will “absolutely” pass parliament following a successful vote (something which Abetz, Bernardi, McKenzie and others may have more to say about in coming weeks).

Finally, he has responded to my letter to him on this subject – well, sort of anyway. Given he seems to have outsourced his decision-making on marriage equality to his homophobic predecessor Tony Abbott, it is possibly unsurprising, although nevertheless disappointing, that he has outsourced responsibility for answering correspondence regarding the marriage equality plebiscite to Attorney-General Senator George Brandis, who in turn has delegated it to his Department.

Here is the Government’s response to my letter to Malcolm Turnbull about the marriage equality plebiscite:

 

“27 January 2016

 

Mr Alastair Lawrie

[Address withheld]

 

Dear Mr Lawrie

Thank you for your recent correspondence to the Prime Minister, the Hon Malcolm Turnbull MP, about same-sex marriage. Your correspondence was referred to the Attorney-General, Senator the Hon George Brandis QC, as marriage falls within his portfolio responsibilities. The Attorney-General has asked that I reply to you on his behalf.

I appreciate you taking the time to write to the Government on the issue of same-sex marriage and for sharing your personal experiences. It is clear that this issue holds particular significant for you.

The Government appreciates that, like you, many Australians have strong personal views about same-sex marriage. That is why, last year, it was decided that this issue should be resolved through a national vote that gives every Australian the opportunity to have their say.

The Government believes it is thoroughly democratic to ask the Australian people whether the Marriage Act 1961 should be amended to allow for same-sex marriage, provided there are appropriate safeguards in place to protect religious freedom[i].

Although a plebiscite will cost money, the Government is of the view that every Australian should be able to have their say on this important issue.

Thank you for bringing your views to the Government’s attention.

 

Yours sincerely

[Name withheld]

Marriage Law and Celebrants Section”

 

Croome on Plebiscite

 

[i] The reference to “appropriate safeguards in place to protect religious freedom” is obviously of major concern, given the push for exceptions to be granted to civil celebrants and other businesses that supply weddings to allow them to discriminate against LGBTI couples. This is an issue that will be addressed in a future post.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Professor Gillian Triggs

President

Australian Human Rights Commission

GPO Box 5218

SYDNEY NSW 2001

Sunday 12 July 2015

Dear Professor Triggs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you in advance for your consideration of this correspondence.

Sincerely

Alastair Lawrie

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

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

Hon Mark Dreyfus QC, MP

Shadow Attorney-General

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 12 July 2015

Dear Mr Dreyfus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you in advance for your consideration of this correspondence.

Sincerely,

Alastair Lawrie

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

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

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

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

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

Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

The Australian Law Reform Commission is currently conducting an inquiry into Traditional Rights and Freedoms – Encroachment by Commonwealth Laws (at the behest of Commonwealth Attorney-General, Senator the Hon George Brandis). They have released an Issues Paper for public consultation, with submissions due by Friday 27 February 2015. For more information about the inquiry, see <http://www.alrc.gov.au/inquiries/freedoms The following is my submission, focusing on LGBTI vilification, religious exceptions to anti-discrimination law, and asylum-seekers and refugees, including LGBTI refugees.

The Executive Director

Australian Law Reform Commission

GPO Box 3708

Sydney NSW 2001

c/- freedoms@alrc.gov.au

Sunday 15 February 2015

To whom it may concern

SUBMISSION TO TRADITIONAL RIGHTS AND FREEDOMS INQUIRY

Thank you for the opportunity to provide a submission to the Traditional Rights and Freedoms – Encroachment by Commonwealth Laws Inquiry.

The subject of human rights and freedoms, and how they should best be protected, both by and from Government, is an important one, and is worthy of substantive consideration.

In this submission, I will focus on three particular areas in which the rights of people are currently being breached as a result of Commonwealth Government action, or in some cases, inaction:

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification
  2. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians, and
  3. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

Before I move to these issues in more detail, however, I wish to express my concern about the Terms of Reference (provided by Attorney-General, Senator the Hon George Brandis) and therefore the overall direction of this inquiry.

The way in which the Terms of Reference have been formulated, and consequently the manner in which the Issues Paper has been drafted, appears to prioritise some rights above others, merely because they are older, or are found in common law, rather than being more modern rights or founded through legislation or international human rights documents.

This is an unjustified distinction, and makes it appear, at the very least, that property rights or ‘the common law protection of personal reputation’ (aka protection against defamation) are more important than other rights, such as freedom from vilification or discrimination.

My criticism of this inquiry is therefore similar to that of the Rights & Responsibilities 2014 Discussion Paper released by the Human Rights Commissioner Mr Tim Wilson. From my submission to that inquiry[1]:

“Specifically, I would argue that the prioritising of certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society.

From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[2]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community. For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights.

Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia”… but which then only focuses on a small number of freedoms, including the right to property, but which neglects others.”

[End extract]

Encouragingly, the ALRC at least acknowledges, on page 31, that “[f]reedom from discrimination is also a fundamental human right.” But the Issues Paper does not include a chapter on this right, nor does it include it within the list of “[o]ther rights, freedoms and privileges” in Chapter 19.

I believe that this imbalance, in examining and prioritising some fundamental rights, while essentially ignoring others, undermines the utility of this process – and is something which must be redressed in the Final Report, expected by December 2015.

I turn now to three particular areas in which the Commonwealth Government either itself breaches human rights, or authorises others to do so.

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification

[NB This topic relates to Chapter Two: Freedom of Speech, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?]

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Issues Paper’s acknowledgement that there are possible justifications for encroachment on this right. In particular, the Issues Papers notes, at paragraph 2.2.4 on page 26:

“Similarly, laws prohibit, or render unlawful, speech that causes harm, distress or offence to others through incitement to violence, harassment, intimidation or discrimination.”

This obviously includes the prohibition on racial vilification contained in section 18C of the Commonwealth Racial Discrimination Act 1975[3].

My primary question is why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status.

The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification, and therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission last year in response to the Senator Brandis’ Exposure Draft Bill seeking to repeal section 18C, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984[4].

In short, if there should be a law to protect against the incitement to discrimination, hostility or violence on the basis of race, then there should also be a law to protect people on the basis of sexual orientation, gender identity and intersex status.

The fact that there is no such Commonwealth law means that the Government is currently failing in its duty to protect LGBTI Australians from vilification.

Finally, I note that this answer is, in some respects, contrary to the intention of “Question 2-2: [w]hich Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?” because it instead proposes an additional area where freedom of speech should be limited.

I submit that such an answer is necessary to redress the imbalance contained in the Terms of Reference, and Issues Paper, because the right to freedom from vilification is equally worthy of recognition, and protection, in Commonwealth law. It is a right that should be extended to LGBTI Australians as a matter of priority.

  1. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians

[NB This topic relates to Chapter 3: Freedom of Religion, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of religion is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?]

I acknowledge the fundamental importance of the right to freedom of religion. However, just as importantly, I support the statement on page 31 of the Issues Paper that:

“[f]reedom of religion is fundamental, but so too is freedom from discrimination on the grounds of gender, race, sexual orientation or some other protected attribute. Freedom from discrimination is also a fundamental human right.”

Indeed, the case at paragraph 3.20 on the same page, namely R v Secretary of state for education and employment; ex parte Williamson (2005) from the UK, provides a useful formulation:

“… there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest, is qualified. This is to be expected, because the way a belief is expressed in practice may impact on others.”

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religion, and protecting others from the harms caused by the manifestation of those beliefs, including through breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous.

In practice, these exceptions provide Government approval and endorsement of the discriminatory treatment of lesbian, gay, bisexual and transgender (LGBT) Australians by religious bodies in a large number of areas of public life[5].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984[6] and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate against both LGBT employees/potential employees, as well as LGBT individuals and families accessing these services, with impunity; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[7]

It is difficult to see how these exemptions, which allow LGBT people to be discriminated against simply as they seek to obtain an education, or access healthcare (which are themselves fundamental international human rights), and to be treated unfairly in employment in a large number of jobs across a wide range of areas, is not a gross breach of their human rights.

Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I submit, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[8], if supplemented by exemptions covering how religious ceremonies are conducted, are both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. These are the only religious exemptions that, I believe, should be retained.

This, much narrower, form of religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others.

Finally, as with my previous answer, I note that this discussion is potentially contrary to the intention of “Question 3-2: Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?” because it highlights an area where, arguably, freedom of religion should be further restrained.

I believe that providing this answer is nevertheless important because, in Australia, freedom of religion is not unduly limited. Instead, freedom of religion is unjustifiably privileged, including where it tramples upon the rights of others, and especially the rights of lesbian, gay, bisexual and transgender Australians not to be discriminated against in public life.

A mature discussion of rights and freedoms would recognise this serious imbalance and seek to redress it, by ensuring that religious exceptions to and exemptions from anti-discrimination law only protected genuine freedom of religious worship, not establishing a supposed ‘right’ to discriminate against people on the basis of sexual orientation and gender identity.

  1. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government

I am not an expert in migration and refugee law, nor in the international human rights instruments that apply in this area.

Nevertheless, I know enough about this subject matter to submit that:

  • Seeking asylum is a human right, and is not a criminal act, irrespective of the manner of arrival (whether by plane or by boat),
  • Responding to people exercising their right to seek asylum by detaining them in offshore processing centres, indefinitely, in inhumane conditions, and without free and fair access to justice, is a fundamental breach of their human rights, and
  • An inquiry into the encroachment by Commonwealth laws upon traditional rights and freedoms would be incomplete without a thorough examination of this issue.

As a long-term LGBTI advocate and activist, I also feel compelled to raise the specific issue of LGBTI asylum seekers and refugees being processed and ultimately resettled in countries that criminalise homosexuality, namely Nauru and Papua New Guinea.

As I have written to several Commonwealth Immigration Ministers, under both Labor[9] and Liberal-National[10] Governments, such a policy clearly abrogates the responsibilities that the Commonwealth Government has towards LGBTI asylum-seekers.

From my letter to then Minister for Immigration the Hon Scott Morrison MP:

“… the mistreatment of LGBTI asylum seekers and refugees raises particular problems, problems that do not appear to be recognised by the Australian Government. Nor does there appear to be any evidence the Government is taking action to remedy them.

Even if the offshore processing and permanent resettlement of refugees continues, this must not include the processing and resettlement of LGBTI asylum seekers and refugees in countries which criminalise homosexuality (which both PNG and Nauru currently do).

If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.

If you, as Minister for Immigration and Border Protection, cannot guarantee that LGBTI asylum seekers and refugees will not be subject to homophobic bullying and harassment, and will be free to lodge claims for protections on the basis of persecution due to their sexual orientation, gender identity or intersex status, then you must not detain them in such facilities.”

[End extract]

As I indicated at the beginning of this section, I am not an expert in this area of law, and therefore am not in a position to provide a more thorough analysis of the (multiple) breaches of human rights law involved in the offshore processing and resettlement of asylum seekers and refugees. I am confident, however, that there will be a number of submissions from human rights and refugee organisations in coming weeks that will do exactly that.

Nevertheless, I felt obliged to include this issue in my submission, given both the severity of the human rights breaches involved, and because of their particular impact on LGBTI asylum seekers and refugees, whose only ‘crime’ is to have sought the protection of our Government.

In conclusion, I wish to thank the Law Reform Commission again for the opportunity to provide this submission, and consequently to raise issues of concern for LGBTI people, namely the absence of anti-vilification protection in Commonwealth law, the breach of our right to non-discrimination because of religious exemptions in the Sex Discrimination Act, and the mistreatment of asylum seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

I look forward to these issues being addressed in the inquiry’s Final Report, to be released by the end of 2015.

Sincerely

Alastair Lawrie

[1] Full submission at: https://alastairlawrie.net/2014/10/27/submission-to-rights-responsibilities-2014-consultation/

[2] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000.

[3] “Offensive behaviour because of race, colour or national or ethnic origin.

  • It is unlawful for a person to an act, otherwise than in private, if:
  • the act is reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate another person or a group of people; and
  • the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

[4] Full submission at: https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/

[5] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity.

[6] Which provides that “[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibility of adherents of that religion.”

[7] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services.

[8] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice…”

[9] My letter to Labor Immigrations Ministers, the Hon Chris Bowen and the Hon Brendan O’Connor from 2012 and 2013: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/

[10] My letter to then Immigration Minister the Hon Scott Morrison from February 2014: https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

2014 GLORIAs Form Guide

The 2014 annual GLORIAs (standing for Gay & Lesbian Outrageous, Ridiculous and Ignorant comment Awards) are coming up next week – Wednesday 14 May.

I enjoy the GLORIAs for a few reasons, not the least of which is host David Marr’s dry wit. The awards are also an important reminder that, no matter how much progress we have made, and continue to make, towards legal equality, the battle against homophobia, transphobia, biphobia and anti-intersex prejudice in social and cultural life goes on.

The GLORIAs, like the Ernies (for misogyny), are a way to hold bigots to account for the awful things that they say – it is a chance for our community to ‘take revenge’ and tell them that enough is enough. Oh, and did I mention that it is usually quite a fun night? Tickets are available here: <http://www.trybooking.com/Booking/BookingEventSummary.aspx?eid=83377

Voting for the worst comment in each of the six categories (International, Media, Politics/Law, Religion, Silliest comment within the LGBTI community, and Sport) is also open online until 5pm on the evening of the 14th: <http://www.theglorias.com.au/home So, get voting.

I have reproduced the nominees from the 6 categories below, along with the person I voted for, who I think will win, and a space to update with the name of each winner after the event. I would love to hear your thoughts on whether you agree or disagree with my reasoning.

And one final thing, thanks should go to lesbian Labor MLC Penny Sharpe, and her staff, for organising the event (which, it should be pointed out, especially after recent events at ICAC, is NOT a political fundraiser).

1. The worst INTERNATIONAL Comment of the year:

Mary Baker, Tea Party activist and leader of Conservative Moms for America: “Gay Supremacy is becoming a monster that carries greater evils than white supremacy ever did.”

Guido Barilla (of Barilla pasta fame): “For us the concept of the sacred family remains one of the fundamental values of the company… I have no respect for adoption by gay families because this concerns a person who is not able to choose”.

Brunei for adopting a new penal code that calls for death by stoning for consenting same-sex sexual activity, adultery, rape, extramarital sexual relations, and for declaring oneself to be non-Muslim.

India’s Supreme Court has refused to review the ban on gay sex it imposed last month, rejecting arguments from civil rights campaigners and the Indian government that the move was unconstitutional.

Delta County School Board member Katherine Svenson said she opposed the recently passed laws in California and Massachusetts that allow transgender students equal access to school facilities such as locker rooms and bathrooms: “I just want to emphasise: not in this district. Not until the plumbing’s changed. There would have to be castration in order to pass something like that around here.”

Nigerian President Goodluck Jonathan signed a bill on Monday that criminalizes same-sex relationships, contains penalties of up to 14 years in prison and bans gay marriage, same-sex “amorous relationships” and membership in gay rights groups.

Zimbabwe President Robert Mugabe described homosexuals as “worse than pigs, goats and birds” and “If you take men and lock them in a house for five years and tell them to come up with two children and they fail to do that, then we will chop off their heads.

Gambian President Yahya Jammeh: “We will fight these vermins called homosexuals or gays the same way we are fighting malaria-causing mosquitoes, if not more aggressively… As far as I am concerned, LGBT can only stand for Leprosy, Gonorrhoea, Bacteria and Tuberculosis; all of which are detrimental to human existence.”

Ugandan President Yoweri Museveni: “Homosexuals are actually mercenaries. They are heterosexual people but because of money they say they are homosexuals. These are prostitutes because of money”

Ugandan Ethics & Integrity Minister Simon Lokodo: “It is a social style of life that is acquired… They chose to be homosexual and are trying to recruit others. … If they were doing it in their own rooms we wouldn’t mind, but when they go for children, that’s not fair. They are beasts of the forest…. Homosexuality is unnatural, abnormal and strange to our cultures… It has no output whatsoever; it only does damage and destruction. You cannot have a right to be a sick human being. There is no right in homosexuality. It must be cured…. Excretion is through the anus, like the exhaust of an engine. The human body receives what it takes from the mouth. They’re twisting nature the wrong way. Homosexuality will destroy humanity because there is no procreation; it will destroy health because the backsides will not hold.”

Michelle Bachmann: “… the gay community, they have so bullied the American people, and they’ve so intimidated politicians. The politicians fear them, so that they think they get to dictate the agenda everywhere.”

Russian President Vladimir Putin: “We do not have a ban on non-traditional sexual relationships. We have a ban on the propaganda of homosexuality and paedophilia… You can feel relaxed and calm [in Russia], but leave children alone please”

Who I voted for: Simon Lokodo, for demonstrating in one long quote just how ‘anally-focused’ many homophobes tend to be.

Who I think will win: This has to be the toughest category to predict. Each of Ugandan President Yoweri Museveni, Gambian President Yahya Jammeh (and his acronym) and perennial nominee Zimbabwean President Robert Mugabe has a strong claim but, simply given the attention his position attracted in the lead-up to Sochi, I suspect Russian President Vladimir Putin might ice-skate his way across the line.

Who did win: In a pleasant surprise (and possibly because of he extremely unpleasant nature of the comments) Simon Lokodo.

2. The worst MEDIA comment of the year:

A poster advertising the Brisbane Queer Film Festival that featured two men kissing was deemed too explicit and banned by Brisbane City Council.

Des Houghton columnist for the Courier Mail for the column ‘Dangers Lurk on Queer Street’: “Is the push for gay marriage just another fad like chai latte with Mt Kosciuszko yak milk, fixed-wheel bicycles and Vietnamese pork belly buns?” (read it here http://www.couriermail.com.au/news/opinion/opinion-dangers-lurk-on-queer-street/story-fnihsr9v-1226703120375).

This ad for The Yellow Pages: http://www.youtube.com/watch?v=NHVjKta5FTk&feature=youtu.be&noredirect=1

Andrew Bolt: “ABC staff must call Manning a woman even when he’s still a man, just because he says so. Just like I must call a white… No. Best not go there.”

Editorial in the Bairnsdale Advertiser ‘Trans-genderism is the enemy of healthy childhood development’.

Who I voted for: Des Houghton, because if you read the entirety of his column, you get an insight into how unhappy his world must be now that the LGBTI community has the temerity to demand genuine equality.

Who I think will win: The explicitly transphobic nature of Andrew Bolt’s column must make him a strong contender.

Who did win: The Bairnsdale Advertiser.

3. The worst POLITICS / LAW comment of the year:

Tasmanian “True Green” party representative Andrew Roberts’s election leaflets: “Most parents will admit that they do not want their kiddies growing up to be more and more corrupted, as they will witness an ever increasing sodomite and lesbian behaviour in public like it’s ‘the norm,’” says the flyer, which associates gay people with disease, child abuse and drug abuse, and calls for the recriminalisation of homosexuality in Tasmania.

Dennis Jensen MP for Tangney WA, speaking on the Marriage Equality Amendment Bill 2013: “This bill is a piece of enabling legislation: it enables the dismantling of society as we know it. In essence, this bill is the apotheosis of a movement bent on legislating a social experiment. Gay marriage is a social experiment. Social experiments have poor results when viewed historically. One need only think of phrenology and eugenics, both of which, thankfully, have been consigned to the dustbins of history but not before having damaging social consequences…”

Federal election campaign flyer in Moreton, QLD with a picture of a crying child stating “I want my mum and dad … Loving kids and respecting their rights means keeping marriage laws that put kids first” (source unknown), https://www.facebook.com/TheGLORIAs/posts/508063229281606

Joe Bullock (Labor Senator-Elect) on running mate Senator Louise Pratt: “she’s a lesbian I think, although after her partner’s sex change I can’t be sure”.

Fred Nile’s (#3) speech in Parliament in support of Reparative Therapy (gay cure therapy). Hansard 14 November 2013.

NSW Premier Mike Baird for his views on “choosing to live a homosexual lifestyle” and his refusal to answer questions about this statement at a press conference after he became Premier.

George Brandis for this on QandA: TONY JONES: But just on principle, you are saying that religious freedom supersedes the freedom of your sexuality? GEORGE BRANDIS: Yes, I am, as a matter of fact. Yes, I am.

Fred Nile (#2) on the NSW Same-Sex Marriage Bill: The so-called marriage between two males is unnatural. Homosexual relations between a male and a male are strongly forbidden in both the Old Testament and the New Testament—in the New Testament particularly by Apostles Paul and Peter and, by implication, by the moral teachings of Jesus Christ. I believe that God’s creative purpose for planet Earth—which is a sensitive issue to discuss—is that the basis for the foundation of the family and the continuation of the human race is the institution of marriage.

Tony Abbott, discussing marriage equality: “I’m not saying our culture, our traditions are perfect but we have to respect them… … I’m not someone who wants to see radical change based on the fashion of the moment.”

A fundraising event for the Liberal Party hosted by Victorian Premier Denis Napthine has seen independent Frankston MP Geoff Shaw ridiculed as a “poofter bastard” by comedian Nick Giannopoulos in front of more than 300 guests.

Fred Nile (#1) for this section of Christian Democratic Party’s National Charter: (c) GOD’S GIFT OF SEX: We believe that God has established laws of sexual morality for the well-being of society prohibiting pornography, adultery, incest, homosexuality, and other sexual aberrations which debase man, as well as defile and pollute our nation. (Note that ‘homosexuality’ is listed after ‘incest’).

Alby Schultz: “I think it is abominable that gay activists continue to focus on and manipulate civil rights strategies to justify claims for same-sex marriage and keep using accusations of discrimination, inequality and homophobia to intimidate politicians and the general public.”

Cory Bernardi’s book ‘The Conservative Revolution’.

WA Liberal Upper House Member Nick Goiran for linking gay marriage to incest in a speech in Parliament.

Federal election campaign flyer in Jagajaga, VIC: “Jenny Macklin voted for same-sex marriage. Same-sex marriage WILL MEAN same-sex education in kindergartens and schools” (source unknown): https://www.facebook.com/photo.php?fbid=5080622 “92615033&set=a.358377574250173.91788.274008212687110&type=1&theatre

Who I voted for: George Brandis (and not just because it was my question on #QandA which precipitated the exchange between Tony Jones and him). Despite other comments being more overtly ‘offensive’, the fact that the then shadow/now Commonwealth Attorney-General was prepared to say, without any qualification whatsoever, that religious rights automatically trump LGBTI rights is, when you think about it, actually pretty outrageous.

Who I think will win: While I’m not confident of this prediction, the combination of the popularity or marriage equality, and current lack of popularity of our Prime Minister, makes me think Tony Abbott could take home the gong.

Who did win: As predicted Tony Abbott took out the gong (better luck next year Senator Brandis).

4. The worst RELIGION comment of the year:

Pastor Kevin Swanson of the Colorado based Reformation Church, thinks that the Disney movie ‘Frozen’ indoctrinates five-year-olds into lesbianism and bestiality: “You wonder sometimes if maybe there’s something very evil happening here … I wonder if people are thinking: ‘You know I think this cute little movie is going to indoctrinate my 5-year-old to be a lesbian or treat homosexuality or bestiality in a light sort of way.’”

Far-right American Christian author Linda Harvey blames gay teens for running away from ‘heart-broken’ homophobic parents who want to control their lives – saying they only have themselves to blame for their homelessness.

Australian Christian Lobby/Lyle Shelton for the Media Release ‘Rudd’s change on marriage sets up a new stolen generation’: “Australian Christian Lobby Managing Director Lyle Shelton said Kevin Rudd’s overnight change of mind on redefining marriage ignored the consequence of robbing children of their biological identity through same-sex surrogacy and other assisted reproductive technologies”.

Ex-Anglican Archbishop Peter Jensen: ”How do two men have sexual union? …You have joined a couple of people together at a spot where they shouldn’t be joined together, really.”

Penrith Christian School’s statement which includes the following: “We believe that homosexuality and specific acts of homosexuality are an abomination unto God, a perversion of the natural order and not to be entered into by His people.” And “We believe the practice of attempting to or changing ones gender through surgical and/or hormonal or artificial genetic means is contrary to the natural order ordained by God.”

Who I voted for: Peter Jensen. In Australia we often judge religious (and political – see Simon Lokodo’s comments, earlier) leaders in other countries for making anal sex-obsessed homophobic comments. Last year, we had the leader of the Anglican Church right here in Sydney saying basically the same thing. The fact he has now retired and may not be nominated again provided another incentive for this vote.

Who I think will win: It’s hard to look past the ACL media release equating Kevin Rudd’s support for marriage equality with the stolen generations as a ‘winner’. Which reminds me: can we officially make an Australian version of Godwin’s Law that the first person to bring up the stolen generations in an unrelated argument automatically loses?

Who did win: Penrith Christian School (NB I also collected the GLORIA for the person who nominated them, even though I still would have preferred Peter Jensen to have won).

5. The SILLIEST GLBTI comment from someone within the GLBTI community

Openly Gay Federal Election Liberal candidate for Sydney Sean O’Connor for preferencing the Christian Democratic Party (CDP) on his How To Vote card above Tanya Plibersek for Labor and The Greens (See:http://www.starobserver.com.au/news/local-news/new-south-wales-news/gay-liberal-candidate-prefers-reverend-fred-niles-party-for-sydney/108672).

Brian Coleman, the gay former Conservative London Assembly Member and ex-mayor of Barnet who described the Marriage (Same Sex Couples) Act as a “silly” and “dreadful” piece of legislation.

Gay CNN host Don Lemon talking about ex-figure skater Johnny Weir: “No one likes a gay minstrel show … so let’s just put that out there. About some of his flamboyant and over the top and all those, it seems those are the people who get the attention, but they don’t represent all of gay America.”

Who I voted for: Don Lemon. The idea of calling someone else who could be described as camp (possibly something of an understatement) as a ‘gay minstrel’ reveals much more about Don Lemon than it does about Johnny Weir. We need to accept people for whoever they are, and however they choose to express themselves. At the same time, it is not the responsibility of each and every gay man in public life to be the sole representation or role model of gay life, either in America or elsewhere.

Who I think will win: Don Lemon.

Who did win: Sean O’Connor (who, like Duncan Gay last year, had the good grace – and PR advice – to attend and collect the award in person).

6. The worst SPORT comment of the year:

Newcastle Knights NRL footballer Ryan Stig who posted a long message to Facebook and Twitter titled ‘Homosexuality demonic work’ about his opposition to marriage equality: “Homosexuality is a fairly good example of distortion of design for fairly obvious reasons. When laws such as this … are created it makes covenant with unseen realms of the demonic which work to infiltrate and come against the thought lives of our cities states [sic] and nations”.

Anthony Mundine for this comment about Redfern Now: “Watching redfern now & they promoting homosexuality! (Like it’s ok in our culture) that ain’t in our culture & our ancestors would have there head for it! Like my dad told me GOD made ADAM & EVE not Adam & Steve,” he wrote.

Alex Rodrigo Dias da Costa, former Chelsea player: “We love everyone but do not like those who do not stand for what the Bible says. But this is not homophobia…. I don’t agree that it is OK that a man lives with another man and a woman with a woman.”

PGA Golfer Steve Elkington for this tweet regarding openly gay NFL hopeful, Michael Sam: “ESPN reporting Michael Sam is leading the handbag throw at NFL combine …. No one else expected to throw today”.

Who I voted for: Anthony Mundine, not just because the comment was idiotic, or because of his repetition of the immensely stupid catch-phrase ‘Adam & Steve’, but because he disparaged the wonderful Redfern Now. At least his ignorant twitter outburst had the positive outcome of helping to inspire the creation of the Black Rainbow facebook community.

Who I think will win: Anthony Mundine, although the long-on-content but short-on-intelligence rant from Ryan Stig could be a very close second.

Who did win: Anthony Mundine (in a well-deserved effort).

Stand-in host Barbara Blacksheep, performing the now-accustomary lip-synch of 'Gloria'.

Stand-in host Barbra Blacksheep, performing the now-accustomary lip-synch of ‘Gloria’.

The Golden GLORIA

This is particularly difficult to predict, given the winner must come from the 6 winners of the above categories, and is then decided by a ‘boo-off’ on the night. Still, I will put forward my preference, and hazard a guess who the community might help ‘elect’ as the prestigious title-holder for the next 12 months, replacing the outgoing winner, NSW Roads Minister The Hon Duncan Gay.

Who I want to win: George Brandis. As explained above, I find his elevation of the religious ‘freedom to discriminate’ above the LGBTI community’s right not to be discriminated against offensive in the extreme. For more on why, feel free to read my earlier column: The last major battle for gay & lesbian legal equality in Australia won’t be about marriage, here: <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/

Who I think will win: Perhaps Vladimir Putin, or maybe Yahya Jammeh.

Who did win: Well, after winning his category, and in a decision which is possibly somewhat related to the unpopularity of last night’s Federal Budget, the winner of the 2014 Golden GLORIA, was Prime Minister Tony Abbott.

One final category, which wasn’t in the program, but which was awarded for the first time on the night, was the inaugural ‘good’ GLORIA, for people or organisations which have shown the most improvement in terms of accepting LGBTI people. The winner was the anti-homophobia initiative in April involving the leaders of major Australian sporting codes, and the #YouCanPlay campaign alongside it. Fittingly, ex-NRL trailblazer Ian Roberts was on hand to accept the award on their behalf.

So, that’s the GLORIAs done for another year. Thanks again to Penny Sharpe for another fabulous event – and I understand that nominations for next year’s event should open by the weekend (there is already an early frontrunner, given Miranda Devine’s recent efforts, but there’s still plenty of time left for more ridiculous, outrageous and ignorant comments to be made).

Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

The following is my submission to the Attorney-General’s Department’s Review of the Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft (aka the Bill to significantly limit the scope of racial vilification protections under the Racial Discrimination Act 1975).

Submissions close on Wednesday 30 April, and more details can be found here: <http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx

I strongly encourage you to make a submission, and include in it the call for the Commonwealth to focus on expanding protections for the benefit of all lesbian, gay, bisexual, transgender and intersex Australians, rather than limiting the operation of s18C for one Melbourne-based News Ltd columnist. Thanks.

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit

BARTON ACT 2600

s18cconsultation@ag.gov.au

Thursday 24 April 2014

To whom it may concern,

SUBMISSION ON RACIAL VILIFICATION AMENDMENTS

Thank you for the opportunity to make a submission on the proposed changes to the racial vilification provisions of the Racial Discrimination Act 1975, as contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

For the reasons explained below, I do not support the replacement of existing sections 18B, 18C, 18D and 18E with the new clauses of the Exposure Draft Bill.

However, I do believe that significant changes should be made to vilification provisions in Commonwealth law: namely, that vilification protections should be expanded to cover sexual orientation, gender identity and intersex status.

The absence of such protections leaves lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians vulnerable to the same types of adverse public conduct experienced by people of different racial backgrounds, but without recourse to the same complaint resolution mechanisms.

I will now turn to these two issues – the proposed reforms, and the case for introducing LGBTI vilification protections – in more detail.

Proposed Reforms to Section 18C

In considering any potential reforms to section 18C of the Racial Discrimination Act 1975, it is useful to start at the particular sub-section which features in most debate. Sub-section 18C(1)(a) makes it “unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people.”

I am of the view that the drafting of this sub-section is probably not ideal, and, arguably, is too broad in terms of the types of conduct that at least theoretically could be captured. I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).

However, it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended. And even if that test is satisfied, any proposed reforms to the law should be an improvement, and not worsen any potential harm.

Turning to the question of whether the drafting of section 18C has directly led to, or caused, any significant problems, I am not convinced that it has. Racial vilification protections under the Racial Discrimination Act 1975 appear to be widely supported by the community, and, for the most part, appear to be working well, both with the oversight of the Australian Human Rights Commission and in the Courts.

There is, of course, one case which is frequently cited as necessitating change to section 18C, and its related provisions, and that is the case of Eatock v Bolt [2011] FCA 1103.

Even ignoring the old legal maxim that hard cases make bad law (“Hard cases, it has frequently been observed, are apt to introduce bad law”, from Judge Rolfe in Winterbottom v Wright in 1842), it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.

In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.

Even if the argument that change was, indeed, necessary was accepted, I do not support that changes proposed in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

I believe that the replacement of ‘offend, insult, humiliate or intimidate’ with to vilify (defined as “to incite hatred against a person or a group of persons”) or to intimidate (meaning “to cause fear of physical harm; to a person; to the property of a person; or to the members of a group of persons”), would arbitrarily and unduly limit the effectiveness of these protections.

I agree with the Australian Human Rights Commission, in their statement of Tuesday 25 March 2014, that: “the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”

I also agree with the Australian Human Rights Commission in their concerns about the breadth of the exemptions proposed in new clause (4). As the Commission notes “[t]his provision is so broad it is difficult to see any circumstances in public that these protections would apply.”

This is at least in part because the previous limitations of section 18D – that words or conduct must be done “reasonably and good faith” to be exempted – have been removed, again without a clear explanation or motivation. In my opinion, the proposals contained in the Exposure Draft Bill would not improve the operation of racial vilification protections generally, but instead have the capacity to make things substantially worse.

Overall, while I concede that the current drafting of section 18C is not ‘ideal’, I do not believe that there are sufficient problems in practice for it to be amended. I also strongly oppose the replacement of sections 18B, 18C, 18D and 18E of the current Racial Discrimination Act 1975, with the clauses contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

Recommendation 1. The Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft should not be introduced into or passed by the Commonwealth Parliament.

Need to expand vilification protections to cover sexual orientation, gender identity and intersex status

While I do not believe a case has been made to reform the racial vilification provisions of the Racial Discrimination Act 1975, I do believe there is a strong case for expanding vilification provisions under Commonwealth law to offer additional protection to LGBTI Australians.

In a similar way to their ongoing problems with race, some extreme elements within Australian society continue to demonstrate their difficulty in accepting people, and treating them equally, irrespective of sexual orientation, gender identity or intersex status.

Both groups – Australians of diverse racial backgrounds, and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

Significantly, while LGBTI Australians finally achieved anti-discrimination protections under Commonwealth law in 2013 (a mere 38 years after the passage of the Racial Discrimination Act), the Sex Discrimination Act amendments did not include protections from homophobic, biphobic, transphobic and anti-intersex vilification. Unlike people of diverse races, LGBTI people still cannot launch complaints about vilification under Commonwealth law.

There is no philosophical or conceptual reason why this should be the case – both are vulnerable groups, subject to vilification against which they deserve to be protected.

The vilification of LGBTI people can take many forms. A 2003 NSW Attorney-General’s Report found that, in the previous 12 months, 56% of gay men and lesbians had been subject to one or more forms of homophobic abuse, harassment or violence.

This violence can also be extreme – as demonstrated by the disturbingly high number of gay men violently murdered in Sydney during the 1980s and 1990s, but whose tragic deaths are only now being properly investigated.

In terms of vilification in public debate, there are almost too many examples of homophobia, biphobia, transphobia and anti-intersex discrimination to choose from (and certainly enough to hold an annual event ‘celebrating’ the worst of these comments in a range of different areas of public life, aka The GLORIAs).

One notorious example from recent years was the homophobic comment of a religious figure, addressing a ‘National Marriage Day’ rally outside Parliament House in 2012, who said “I’m convinced that homosexuals (re)produces (sic) themselves by molesting children.”

Unfortunately, heading inside Parliament House, the tenor of public debate is sometimes not much better. Over the past 12 years we have seen Senators argue that allowing two men or two women to marry could lead to humans having sex with animals, arguing that enacting marriage equality would potentially result in another ‘Stolen Generations’, and abusing parliamentary privilege to smear an openly-gay High Court Justice with unfounded allegations of paedophilia (apparently solely because of his homosexuality).

This is not to say that all, or even any, of those comments would necessarily qualify as vilification under an equivalent provision to section 18C, but, the fact those comments are able to be made in our National Parliament provides a small insight into the type of abuse and vitriol which continues in other forums, day-in, day-out, which are not subject to the same levels of scrutiny.

That includes street-level harassment and abuse which my fiancé Steven and I, like many thousands of other LGBTI Australians, experience all-too-frequently. Anyone who is ‘visibly’ identifiable as lesbian, gay, bisexual, transgender or intersex, including non-LGBTI people who are perceived as being LGBTI by others, and anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that being or expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much, much worse.

Of course, the introduction of s18C-style protections on the basis of sexual orientation, gender identity and intersex status will not automatically lead to a reduction in such abuse, but it will allow for people to contest the most egregious examples of homophobic, biphobic, transphobic and anti-intersex vilification in public life.

Over time, the introduction of vilification protections for LGBTI Australians, on top of the recently passed anti-discrimination laws, would help to send a strong signal to the wider community that such conduct was no longer tolerated.

The impetus for sending such a signal can be found in figures which show that lesbian, gay, bisexual, transgender and intersex Australians continue to experience disproportionately high rates of mental health issues, including depression, attempted suicide and suicide.

This problem is especially pronounced amongst younger LGBTI people, with young same-sex attracted people estimated to be 6 times more likely to attempt suicide than their heterosexual counterparts (source: National LGBTI Health Alliance). Young people’s experience of discrimination and homophobia has been found to play a key role in this huge, and sadly persisting, health disparity.

Not only is public vilification in the form of homophobia, biphobia, transphobia and anti-intersex discrimination wrong in and of itself, it has serious consequences, including in negative mental health outcomes for LGBTI people.

I believe that anti-LGBTI vilification must be prohibited under the Sex Discrimination Act, in the same way that racial vilification was in 1995 when the Racial Hatred Act amended the Racial Discrimination Act, and that it should be done as soon as possible.

Recommendation 2. The Sex Discrimination Act 1984 should be amended to prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

Obviously, there are other potential attributes which could also be aided by the introduction of vilification protections, including those grounds which already have Commonwealth anti-discrimination laws (sex, disability and age), but, as I am not an expert in any of those issues, I am not in a position to argue for or against their inclusion in this submission.

Nevertheless, I strongly believe that these questions – whether vilification protections should be expanded, and which additional groups they should cover – are the ones which should be occupying the mind of our Commonwealth Attorney-General, and indeed all MPs, rather than working out how to restrict the protections offered by the racial vilification provisions contained in the Racial Discrimination Act 1975.

I sincerely hope that this submission assists in helping to turn that conversation around, and that we, as a community, start to focus on enhancing instead of undermining human rights.

Thank you for taking these comments into consideration. Should you require clarification or further information, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

No 2 Australia Finally Adopts Federal Anti-Discrimination Protections for Lesbian, Gay, Bisexual, Transgender and Intersex People

I have already written about the significance of this achievement (link: https://alastairlawrie.net/2013/06/30/federal-lgbti-anti-discrimination-protections-at-last/), so I won’t go into a lot of new detail here.

Still, as far as highlights of 2013 go, it would be pretty difficult to overlook the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act in June. From 1 August, LGBTI people in Australia finally had anti-discrimination protections under federal law. And we only had to wait 38 years after the Racial Discrimination Act, and 29 years since the original Sex Discrimination Act (and yes, that was sarcastic – the passage of this Bill was long, long overdue).

There were two particular aspects of the Sex Discrimination Amendment Act that warrant particular celebration. First, it is the first anti-discrimination law passed anywhere in the world to explicitly include intersex people. That is a pretty amazing achievement, and another testament to the great work and advocacy by OII Australia and other groups.

Second, the legislation includes an amendment that means aged care service providers operated by religious organisations are not legally allowed to discriminate against LGBTI people accessing their services. Again, this is a significant victory, and will help to ensure the generation of LGBTI people who fought so hard – and successfully – for our civil rights, have the opportunity to grow old with dignity.

Nevertheless, the fact that a special ‘carve-out’ is necessary for aged care service delivery by religious organisations emphasises the major weakness of the anti-discrimination protections that were passed: schools, hospitals and other community service organisations that are run by religious groups are legally allowed to discriminate against lesbian, gay, bisexual and transgender people, both employees and service recipients (NB religious organisations do not have exceptions allowing them to discriminate against intersex people).

These religious exemptions or exceptions are contrary to the fundamental concept of anti-discrimination law – that people should not be discriminated against for things that are irrelevant to their capacity to perform a job, or their right to access a service.

Fighting to remove these religious exceptions will be the biggest test for LGBTI advocates and activists over the next 5, 10 or even15 years (achieving marriage equality will likely turn out to be both easier, and quicker, than removing religious exceptions, and religious organisations will probably fight much harder to retain them than to retain a discriminatory Marriage Act).

Still, fight them we must, because for however long a religious school can sack a teacher for being gay or bisexual, or a service organisation can refuse to provide that service because the intended recipient is transgender, then we are not truly equal.

As an indication of how difficult this fight will be, I am re-posting the exchange between myself, now Attorney-General George Brandis and Tony Jones on #QandA back in June, the night before the legislation, including the aged care carve-out, was passed (and, no this is not just – well, not entirely – because I had so much fun doing this):

ALASTAIR LAWRIE: My question is to Senator Brandis. Last Tuesday you announced that the Coalition would block any LGBTI anti-discrimination bill that did not allow religious aged-care service providers to discriminate on the basis of sexual orientation and gender identity. This is despite the fact that these agencies themselves do not believe they need this exception. You seem to be putting a theoretical religious freedom above practical protections. Why don’t you believe that older lesbians, gay men, bisexuals and transgender Australians, people who have grown up when their love was criminalised, who lost friends and lovers to HIV and AIDS, have the right to grow old in dignity and respect that they deserve?

GEORGE BRANDIS: It is a very important question that you ask and let me explain what the Opposition’s position is. But there was one statement in your question which wasn’t quite right. You said that the religious institutions, the churches, didn’t themselves want the exemption so far as concerned aged care facilities. That’s not right. Some said they didn’t want it. Most said they did. So don’t be misled by a misleading statement by the Attorney-General. On the broader issue, when the bill, the sex discrimination bill, was introduced into the Parliament, I took a submission to the Shadow Cabinet and to our party room which was, I think without a dissenting voice, endorsed that we should support it. And the reason we support it is because it is actually the policy we took to the 2010 election, that the provisions of the Sex Discrimination Act should extend to sexuality as a protected attribute. The Government knew that they had the Opposition on board with this. In fact, the Government’s measure was itself taken from the Opposition’s report on the broader human rights and anti-discrimination bill, the bill that was abandoned by the Government earlier this year because it was acknowledged to have gone way too far. So we had, on this very tricky and important issue of discrimination against gay people, we had bipartisanship and unanimity. And then into the middle of this harmonious bipartisan moment, the Labor Party, out of the blue, threw in an amendment never anticipated, never expected, that would have caused the religious exemption issue to come into play. Now, if you want to build a consensus around this issue, that gay people should be protected from discrimination by the Sex Discrimination Act, then you would not have done that and the Labor Party, on all other grounds, in all other arenas, has said that it will respect the religious exemption. I am cynical about why the Labor Party did that…

TONY JONES: Okay, George.

GEORGE BRANDIS: …knowing that by introducing the religious exemption, it would make it impossible for that bipartisanship to continue.

TONY JONES: George Brandis, the questioner has his hand up so we’ll go back to you.

ALASTAIR LAWRIE: I would just like to pick up a point you seem to be making. In Senator Humphrey’s dissenting report to the sex discrimination senate inquiry, the two organisations that he quoted justifying the call for religious exception in that circumstance were the Australian Christian Lobby and the Catholic Women’s League. Neither of them provide religious aged care services. So in that circumstance, why are we trying to impose a religious exception to the detriment of older LGBT people for those groups that don’t actually run those services?

GEORGE BRANDIS: Well, I’m very familiar with that minority report because I was one of the signatories to it and I had a lot to do with drafting it. There were many more submissions to the inquiry from other churches and religious institutions than those two. So don’t infer that because those two were mentioned as a ‘For example’, those were the only ones, because they weren’t.

TONY JONES: Okay. George, I would like the hear other people on this subject. Anne Summers?

ANN SUMMERS: Well, I’m afraid I don’t know much about the legislation. I mean I just obviously would support the principle that LGBT people should be able to go to retirement homes and nursing homes free from any form of discrimination, which I take to be the central point and I know that, you know, one of the problems with homes that are run by some religions is they have been discriminatory in the past and I imagine what we are trying to avoid is the continuation of that discrimination and I would support that.

TONY JONES: Yeah, very briefly, George, before I go back to the other panelists, shouldn’t anti-discrimination be universal?

GEORGE BRANDIS: No.

TONY JONES: Why shouldn’t it?

GEORGE BRANDIS: Anti-discrimination laws should not be universal because the right to fair treatment is one of several very important but sometimes inconsistent values. The right of people who practice or profess a particular religious faith to live their lives and to conduct their institutions in accordance with the precepts of their religious faith is integral to religious freedom and religious freedom is also a fundamentally important value.

TONY JONES: So religious…

GEORGE BRANDIS: And if I may say…

TONY JONES: But just on principle, you are saying that religious freedom supersedes the freedom of your sexuality?

 

 

GEORGE BRANDIS: Yes, I am, as a matter of fact. Yes, I am. But I am also making a political point. There are – we in the Liberal Party have joined with people in the Labor Party to progress this agenda for years and those who wanted to see the Sex Discrimination Act extend to protect people on the grounds of their sexuality were furious that the Labor Party decided to throw in a curve ball into the debate that deprived the country of the opportunity for unanimity on this. [emphasis added].

 

That exchange, and especially Senator Brandis’ statement that religious freedoms clearly trump our right to not be discriminated against, show just how hard this battle will be.

Underscoring this point is Attorney-General Brandis’ recent appointment of Tim Wilson as a new Human Rights Commissioner, responsible for promoting ‘traditional freedoms’. Recruited from the right-wing Institute of Public Affairs, on 23 January this year Mr Wilson appeared at a Senate hearing into the then draft Human Rights and Anti-Discrimination Bill (transcript here: http://parlinfo.aph.gov.au/parlInfo/download/committees/commsen/8eb3bdec-c603-4d2d-9564-674c7bd7b5c2/toc_pdf/Legal%20and%20Constitutional%20Affairs%20Legislation%20Committee_2013_01_23_1612_Official.pdf;fileType=application%2Fpdf#search=%22committees/commsen/8eb3bdec-c603-4d2d-9564-674c7bd7b5c2/0000%22).

During his testimony, he argued that anti-discrimination protections should only apply to government employees and services – basically, that anti-discrimination law should not protect people from being fired for being gay, or being expelled for being a lesbian, or being denied a service for being bisexual, transgender or intersex. Given the extremity of these views, if this is any indication of how Attorney-General Brandis will approach anti-discrimination reforms then we will need to be prepared to fight any moves to wind back our hard-won protections in 2014.

In the meantime, the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 will stand as the most significant LGBTI victory of the past 12 months. Thank you to the former Labor Government, then Attorney-General Mark Dreyfus, Senators Penny Wong and Louise Pratt and everyone else who helped to make this happen.

George Brandis, Tony Abbott, Marriage Equality & CNIs

Marriage Equality Red Background Rings

This week saw the passage of marriage equality in Uruguay, and then New Zealand. Next week will witness France adopt marriage equality legislation. These are the 12th, 13th and 14th countries around the world to have done so.

This spate of activity has provided renewed focus on the issue of marriage equality within Australia. In particular, it has prompted more people to scrutinise the position of Tony Abbott and the Liberal-National Opposition, because they will almost inevitably form Government after the election on September 14th.

Some people have pointed to Tony Abbott’s recent comments to say that he is softening his stance of marriage equality. Specifically, he has said that the matter will be debated inside the Coalition party-room after the election, with the possibility that they may adopt a conscience vote on the matter.

I disagree that this is necessarily a positive development. Instead, I think Abbott’s position is a complete cop-out. It avoids legitimate scrutiny in the lead-up to the poll, leaving voters unclear exactly what he, and his Government, will do once in office.

It also means that people and groups who oppose marriage equality can exert their homophobic influence behind closed doors to ensure that there is no progress. No doubt bigots like the Australian Christian Lobby will be there, actively lobbying in secret, with their decidely un-christian views.

The potential outcomes of this ‘evasive manoeuvre’ by Abbott include that the Coalition’s policy does not change, and that there is therefore no conscience vote next term. We could also end up with civil unions, a so-called compromise which basically nobody wants, but which seems to be favoured by people like Warren Entsch, who has traditionally been one of the more progressive Liberal MPs.

In fact, civil unions seem to me like the most likely outcome of an incoming Liberal-National Government. I genuinely can’t see marriage equality happening under someone as fundamentally conservative as one T Abbott, and that is why I fear we may still be three terms away from Australia-wide reform. Imagine how many countries we will have fallen behind by then?

But, there is one scenario in which we could even go backwards in terms of marriage equality in Australia. I know, that doesn’t seem possible, but there is actually one marriage reform which has been implemented by the current Labor Government which could be wound back under a Coalition Government, in what would be a worst-case scenario.

This would involve the incoming Attorney-General, who will most likely be Senator the Hon George Brandis SC, revoking the January 2012 decision by the then Labor Attorney-General, the Hon Nicola Roxon MP, which allowed Australian LGBTI-inclusive couples to obtain Certificates of No Impediment (CNIs) to marry overseas (in the countries that require them).

In fact, this would simply be the Coalition reverting to the policy which they adopted from 2004 to 2007, when, under then Attorney-General, the Hon Philip Ruddock MP, the Liberal-National Government refused to issue CNIs to same-sex couples, thereby cruelling the chances of most Australian LGBTI-inclusive couples from taking advantage of overseas developments.

To be honest, I don’t know how likely this worst-case scenario is. I would hope that we have come a long way since the end of the Howard era in 2007, and that an incoming Abbott regime would not wind back this particular right.

On the other hand, many Queenslanders probably thought last year that, even if he wasn’t going to be a pro-equality champion, Campbell Newman and the LNP wouldn’t wind back existing LGBTI rights. How wrong they were.

Anyway, that is why I have written the following letter to Shadow Attorney-General Brandis, and copied it to Mr Abbott. Basically, I am asking them to support marriage equality, through party policy or at least a conscience vote. But, if they are unable to do either of those, to at the very least continue to grant CNIs to Australian LGBTI-inclusive couples to marry overseas.

I don’t know what kind of reply to expect. But, as always, whatever I get I will post here.

This is the text of the letter which I sent yesterday:

Dear Senator Brandis

Marriage Equality and Certificates of No Impediment

I am writing to you about the issue of marriage equality, and specifically the policy which the Liberal-National Opposition will take on this issue to the Federal election to be held on 14 September 2013.

I am a 34 year old man who has been together with my wonderful fiancé for almost 5 years – and we have been engaged to be married for more than 3 of those.

All we want is to be able to have a legally-recognised wedding ceremony in front of our family and friends in our own country. All we want is exactly the same rights which other Australians already enjoy.

I strongly encourage the Liberal-National Opposition to support marriage equality as formal policy ahead of the September poll. This would show that the Liberal-National Coalition accept lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians as first-class citizens, deserving of both respect and full legal equality.

Failing that, and as a bare minimum, the Liberal and National Parties should publicly commit to holding a conscience vote on this issue in the next term of Parliament, so that those MPs who wish to support LGBTI equality are free to do so. There have already been several Liberal MPs and candidates who have expressed their desire to take advantage of a non-binding vote to support marriage equality, should one be granted.

Finally, I have a specific question relating to the Attorney-General portfolio. In 2005, your Coalition colleague, the Hon Philip Ruddock MP, as Attorney-General prohibited the granting of Certificates of No Impediment (CNIs) to Australian LGBTI-inclusive couples who wished to marry overseas.

This ban remained in place until overturned by the Hon Nicola Roxon MP on 1 February 2012. This allows Australians couples, and those LGBTI-inclusive couples which include dual or multiple nationalities, to take advantage of the growing number of countries to have implemented marriage equality.

Just this month, Uruguay, New Zealand and France have become the 12th, 13th and 14th countries to accept marriage equality, as part of a growing worldwide movement. Even if the Australian Parliament does not grant marriage equality in the near future, should not mean we are prevented from taking advantage of the equality that already exists overseas.

My question is this: Do you commit a Liberal-National Government to continuing to grant CNIs to LGBTI-inclusive couples who wish to marry overseas?

I would appreciate your reply on all the issues raised in this letter, but in particular, on whether a Liberal-National Government would continue to grant CNIs to all Australian couples, irrespective of sexual orientation, gender identity and intersex status.

Thank you in advance for considering this important issue.

Yours sincerely,

Alastair Lawrie