Tag Archives: LGBTI rights

Equal Marriage: A failure of political leadership

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On this day, exactly eight years ago, the Senate passed the Marriage Amendment Bill 2004. On that Black Friday, as a result of Labor’s capitulation to Howard’s homophobic wedge politics, the overwhelming majority of senators voted to deny same-sex couples the right to marry within Australia, and to ensure that same-sex marriages entered into overseas were not recognised under domestic law. Only the Democrats and the Greens stood up for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians against this egregious attack on their human rights.

In the spring sittings of parliament, which begin tomorrow, our parliamentarians will once again vote on the question of who should be allowed to get married – this time, on one or more bills seeking to overturn Howard’s ban and extend this right to all couples, irrespective of sexual orientation or gender identity. One thing is certain, the margin of the vote will be much, much closer this time around.

So what has changed in the intervening eight years (other than the demise of the Democrats)? Well, since 2004, the policy argument has been run and won. The trifecta of reasons advanced by the ‘defenders’ of marriage – that marriage is about religion, children and tradition – have been comprehensively debunked, time and time again. With the figleaf of these so-called arguments removed, it has become apparent that those people who oppose marriage equality are simply bigots who cannot abide the thought that gay and lesbian Australians should have the same rights as them.

On the flip-side, the arguments in favour of change – that society should treat same-sex and opposite-sex relationships equally, and in doing so finally accept LGBTI Australians as full citizens – have been successful. So successful, in fact, that a large and growing proportion of the population supports ending marriage discrimination. The Galaxy poll released last Monday found that 64% of voters favour marriage equality, and just as importantly, that a majority of Green (87%), Labor (73%) and even Coalition voters (53%) support legalising same-sex marriage.

And yet, while the margin of the upcoming parliamentary vote will undoubtedly be closer than it was eight years ago, it is highly likely that the bill(s) will ultimately be defeated in both houses, and that the vote may not even be particularly close in the House of Representatives. That would obviously be a very disappointing result for the many advocates of marriage equality, both inside the major political parties and in the community more broadly.

It is also an outcome that requires some explanation – why would our federal parliamentarians reject a social reform that is both right in principle and popular in the electorate? One of the reasons is clearly the cancerous role played by the Shop, Distributive & Allied Employees’ Association (SDA) inside the ALP. Nothing seems to motivate SDA National Secretary Joe de Bruyn like ensuring LGBTI Australians remain second-class citizens, and his union certainly has plenty of obedient federal MPs who stand ready to oppose reform.

Another explanation is the exaggerated importance given to the Australian Christian Lobby, both at Parliament House and by the fourth estate. While the ACL represents only a small fraction of Australia’s Christians, for some reason the media keeps reporting, and politicians keep listening to, the incoherent blather of Jim Wallace. This disenfranchises the majority of Australian Christians who actually support marriage equality.

Other reasons for the likely failure of the push for equality include that our federal parliamentarians are both older and more religiously devout than the rest of the population. It should also be noted that the federal parliament has a long history of being achingly slow in delivering LGTBI law reform, often lagging several decades behind public opinion (Exhibit A: 37 years after the passage of the Racial Discrimination Act 1975, there is still no federal anti-discrimination legislation for sexual orientation or gender identity).

But none of these reasons is sufficient to explain why the Bandt, Jones and Hanson-Young bills will likely end in defeat. Instead, as is usually the case, the main explanation is much simpler and more obvious. Same-sex marriage will lose in 2012 because the current leaders of the Labor, Liberal and National parties have failed in their obligation to lead – only the leaders of the Greens, with the recently departed Bob Brown, and his replacement, Christine Milne, have fulfilled their responsibilities to represent all members of the Australian community, not just the opposite-sex attracted ones.

Traditionally, major social reforms in Australia have been delivered by the party in Government, usually voting as a bloc, and occasionally with bipartisan support. Even where it was not official Government policy at the time, one or more of the major party leaders would support progressive change and help it achieve majority support. However, the current leaders of the Labor, Liberal and National Parties have all actively worked against marriage equality and are major roadblocks to it being achieved at any point in the near future.

The leader of the National Party, Warren Truss, has not achieved much of note during his political career, and is certainly not renowned for strongly prosecuting public policy arguments, on pretty much anything. True to form, he has not taken a high profile during the same-sex marriage debate. However, he has repeatedly made it clear that he opposes equal marriage rights for the LGBTI community, and will be voting no on the legislation later this year.

Truss’ major ‘achievement’ on this issue might be to lead the only political party whose entire federal parliamentary delegation votes against gay and lesbian equality. That would be disappointing, after NSW state Nationals MP Trevor Khan’s vote to support same-sex marriage in the NSW upper house earlier this year, and betrays a proud history of at least a small number of National Party parliamentarians being progressive on matters of social justice. But the main betrayal is for a political party, which claims it wants to reduce male suicide in the bush, and reverse the population drift from rural areas to the major cities, to oppose one measure which might help to counteract both.

The leader of the Liberal Party, Tony Abbott, is even more homophobic than Truss. He has consistently spoken out against extending to right to get married to same-sex couples. In fact, Tony Abbott is so passionately anti-equality that, in addition to employing his own vote against the upcoming bills, he has ruled that the Coalition frontbench be denied a conscience vote. That means the only way for any Coalition figure, from the position of parliamentary secretary upwards, to vote for equality would be to resign their position, which for political animals is a very heavy price to pay. Only backbenchers are exempt, but even they may jeopardise their chance of future promotion should they vote yes.

Tony Abbott’s antipathy is clearly very personal – there is something about equal marriage which challenges either his Catholic faith or his heterosexual privilege, or quite likely both. And his crusade against same-sex marriage has continued even after his sister came out as lesbian, and despite the fact she reportedly wishes to have the right to get married herself. Contrary to the News Ltd puff pieces from earlier this year, which tried to humanise him on the basis that he maintains an ongoing relationship with his sister, I think this makes his position even more despicable. Tony Abbott is so comfortable in denying equality to LGBTI Australians that he thinks even his own sister should have less rights than himself, and that her relationship with her partner should never be recognised as  the same as his. How disgusting.

Nevertheless, the majority of my disapproval is reserved for the leader of my own political party. It is Julia Gillard who ultimately bears more responsibility than any other single figure in Australia, even John Howard, for the fact that Steve and I will still not be able to get married by the end of this year.

It is Gillard who, despite being an atheist, a so-called ‘progressive’ and even someone who originated in the left of the ALP, has espoused some of the most conservative arguments for the preservation of marriage as an exclusive and discriminatory heterosexual institution. It is Gillard who, in addition to saying she will vote against LGBTI human rights herself, also spent enormous political capital to ensure that the ALP would only have a conscience vote on this issue rather than a binding parliamentary vote (unlike the last seven years, when all Labor MPs were expected to vote in unison against marriage equality, there is no such requirement on anti-equality MPs to support change now that the party platform expressly supports marriage equality). This ‘achievement’, secured at last year’s National Conference, almost single-handedly guaranteed that any marriage equality bill in the current parliament would fail.

When you think about it, it is indeed remarkable that the federal Labor leader has been so staunchly anti-equality, especially given the majority of the community, the majority of the ALP membership, the majority of unions, and the majority of ALP parliamentarians all favour same-sex marriage. If adopting this position was done to seek the support of religious fundamentalists in the community, then it will be in vain – they will vote for the Coalition, and parties even further to the political right, come the next federal election as they always have done.

And if it was done to curry favour with religious fundamentalists inside the ALP (both inside caucus, and the head office of the SDA), then it may well have extended her stay in the lodge, but it will not prevent her being replaced whenever they consider her to be expendable. But then, trying to find an explanation for Gillard’s position on same-sex marriage is ultimately a futile gesture, because we will never truly know why until she explains it herself, and that is unlikely to occur until long after she leaves public office.

In the meantime, we must judge the Prime Minister on her actions, and in those she has clearly failed – in her duty to lead for all Australians, in her capacity to envisage a better society, and as a human being who should treat others fairly, equally and with respect. Julia Gillard is already being judged, by myself and countless others, for standing in the way of this progressive reform. She should be in no doubt that history will judge her even more harshly. This damn spot on her political record will never come out.

These three leaders have all failed lesbian, gay, bisexual, transgender and intersex Australians, and all other Australians who believe in genuine equality, irrespective of sexual orientation and gender identity. Gillard’s failure is the worst because it is the most consequential. If Truss had supported equal marriage, then it would have changed the nature of the debate, showing that conservatives could support human rights, but it may not have changed the final result. If Abbott had supported equality (or even just allowed a conscience vote), then equality may have happened but it was absolutely not guaranteed.

But if Julia Gillard had been a champion of equal marriage, if she had chosen to fight for rather than against equality, then equal marriage would probably have become a reality by the end of 2012. Instead, it appears that LGBTI couples will need to wait another eight years or more before being able to walk down the aisle. Let’s hope that, by then, the major political parties are led by people who understand what leadership means.

8th Marriage Equality National Day of Action

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Today was the 8th Marriage Equality National Day of Action. Usually held on the second Saturday of August each year, it is timed to coincide with the anniversary of the Senate’s passage of Howard’s Marriage Amendment Bill 2004, which both the Liberal-National Government, and Labor Opposition, shamefully voted into law on Black Friday 13 August 2004.

I attended the protest at Sydney Town Hall, which I would estimate had a crowd of somewhere around 1000 to 1500 people braving the cold and windy weather (although estimating crowd numbers is, as always, a mug’s game). Sadly, my fiance Steve couldn’t come along as he had to work. There were also rallies around the country, including Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart and Newcastle.

The rally itself was fairly traditional. A range of the usual suspects spoke (Lord Mayor and State MP Clover Moore, Australian Marriage Equality’s Alex Greenwich, Sydney Gay & Lesbian Mardi Gras Chair Peter Urmson and others). The acknowledgment of country by the gay indigenous speaker to commence proceedings was rather lovely (I wonder if he did find his husband this afternoon?), as was a touching speech by a young Melbournian representing the sex and gender diverse community (and my apologies to both for not recalling their names). The Maritime Union of Australia delegate certainly fired up the crowd as well.

What I found most telling, however, was the need for one of the organisers to announce the date for the next marriage equality rally – for November 25th. That is after the expected votes on marriage equality bills in both the Senate and the House of Representatives. While that may seem pessimistic, it is also probably fairly realistic, with the legislation likely to fail in both chambers.

These widely-anticipated defeats, and with a Tony Abbott-led Coalition currently odds-on favourites to win next year’s federal election, mean that Australians who support marriage equality are in for a very testing time over the next 18 months. It will be incredibly important for the people advocating this reform to maintain focus during this time, and to keep their eyes on the eventual prize, even if we may not achieve national marriage equality until the 2020s.

Which is, obviously, easier said than done. On a personal level I found this afternoon to be a little bit depressing. It is the sixth or seventh national day of action I have attended (I can’t recall whether I returned in time for 2009’s rally from the Copenhagen OutGames). And in my heart I fear that there will be, at the very least, another six or seven before Steve and I will be considered married under Australian law.

While I share Martin Luther King’s dream for a world free from prejudice, is it selfish to admit that I also dream of not having to give up two, three, four or more Saturdays per year, just to demand human rights which Steve and I should already enjoy? Of course, I know that it is always encumbent upon those people who are discriminated against to stand up for themselves, and so I will be there, year after year, rail, hail or shine, until we ultimately achieve equality.

[As an aside, in a very minor way, I only have myself to blame. Back at the start of 2005, I was a committee member of the Victorian Gay & Lesbian Rights Lobby (VGLRL). At our planning day for the year ahead, I suggested that one of our main priorities should be to build for a protest on the first anniversary of the same-sex marriage ban passing the Senate. The VGLRL, together with Equal Love, subsequently helped to organise the largest rally held on that first national day of action.

Now, I am absolutely NOT claiming credit for the success of that protest – many other people were far more central to actually organising the rally than I was. Nor am I discounting the likelihood that other cities, including Sydney, would probably have also held a protest that day irrespective of our actions. But I hope you don’t mind me thinking back with at least a measure of pride to having played even a small role in the LGBTI community’s fightback against Howard’s marriage ban. On the other hand, it does mean I am morally obliged to keep on giving up those Saturdays into the foreseeable future…]

Submission on Homosexual Advance Defence

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The following is a submission which I am lodging today with the NSW Legislative Council Provocation Committee which is inquiring into the Partial Defence of Provocation. It is an opportunity to make the argument that the homosexual advance defence, or ‘gay panic’ defence, should be repealed because it is unjust and discriminatory. The Committee has extended the deadline to Friday 24 August 2012 so I would encourage anyone interested to make a similar submission.

NB On Tuesday 23 2013, the Committee handed down its final report. In it, all members of the Committee, including the Chair, Mr Fred Nile, recommended that non-violent sexual offences should not be the basis of a provocation defence. Which means in practice, that all members have recommended that the Homosexual Advance Defence be abolished. This is obviously a great result – it is now up to the Premier, the Hon Barry O’Farrell MP, to implement this reform, as quickly as possible. The full report can be found here: http://www.parliament.nsw.gov.au/Prod/parlment/committee.nsf/0/61173C421853420ACA257B5500838B2E?open&refnavid=CO4_1

Submission to the Legislative Council Provocation Committee Inquiry into the Partial Defence of Provocation

This submission will focus on one aspect of the operation of the partial defence of provocation – the so-called homosexual advance (or ‘gay panic’) defence.

In particular, it will argue that the law of provocation should be reformed by either amending s.23 of the Crimes Act 1900 to ensure that non-violent sexual advances cannot be considered as an act which induces provocation, or by repealing s.23 in its entirety to remove the partial defence of provocation altogether.

This is necessary to ensure that never again can a person who commits homicide have their offence downgraded, from murder to manslaughter, with a consequent reduction in maximum sentence, simply on the basis of a non-violent sexual advance.

As noted in the Committee’s briefing paper for this inquiry, the statutory basis of the partial defence of provocation lies in s.23 of the Crimes Act. In particular, sub-sections (1) and (2) provide that:

(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:

(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and

(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,

It is difficult to comprehend how these sub-sections have ever operated to mitigate the responsibility of an offender who kills another person in response to a non-violent sexual advance. It is almost impossible to understand how it could still be the case in 2012.

The ultimate fault for this sorry state of affairs lies with the majority of High Court justices in Green v The Queen [1997] HCA 50. With all due respect to Chief Justice Brennan, Justice Toohey and Justice McHugh, they incorrectly applied the ordinary person element in sub-section (2)(b) to mitigate the responsibility of the offender. As has been made clear in repeated criticisms of this decision, the ‘ordinary person’ in contemporary Australia is not so homophobic that their response to a non-violent homosexual advance is to form the intent to kill that person or to wish to inflict grievous bodily harm upon them.

This point was of course made eloquently by Justice Kirby in his dissent:

“If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended… Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands.”

The truly offensive nature of the homosexual advance defence is revealed by asking why it invariably applies only to non-violent sexual advances by a man to another man? As Kirby asks, rhetorically, if a non-violent sexual advance from one man to another was sufficient to justify forming the intention to kill or seriously wound, why should this not also apply to a non-violent sexual advance by a man to a woman? Further, why shouldn’t a woman who receives an unwanted non-violent sexual advance from another woman have access to the partial defence of provocation? Why doesn’t it also apply to a man who receives an unwanted non-violent sexual advance from a woman? Or, in my case, as a gay man, why can’t I access the partial defence of provocation if I receive an unwanted sexual advance from another man?

The answer is that in all of these cases society justifiably expects the recipient of the unwanted sexual advance to exercise self-control. A violent response to an unwanted non-violent sexual advance, to the extent that the recipient forms the intention to kill or seriously wound, is so beyond the pale, or so far out of the ‘ordinary’, that we do not extend any reduction in culpability to the offender in these circumstances.

In my opinion, there is nothing so different, so special or so extraordinary, in the situation where the non-violent sexual advance is made by a man to another man, as to justify offering the offender in such cases any extra legal protection. In contemporary Australia, a man who receives an unwanted sexual advance should exercise the same level of self-control as we expect of any other person.

To have a separate legal standard apply to these cases is homophobic because it implies there is something so abhorrent about a non-violent sexual advance by a man to another man that a violent reaction is almost to be expected, and at least somewhat excused. This does not reflect the reality of contemporary Australia, where, with the exception of marriage, gay men enjoy the same rights as other men, and are accepted as equals by the majority of society.

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

The above discussion outlines why the homosexual advance defence is wrong in principle. What should not be forgotten is that the homosexual advance defence is also wrong in practice, or in the outcomes which it generates. After all, the defence does not simply exist in the statute books, ignored and unused. Instead, it has been argued in a number of different criminal cases, sometimes successfully.

This means there are real offenders who are in prison (or who have already been released), who have had their conviction reduced from murder to manslaughter, and most likely their sentence reduced along with it, simply because they killed in response to an non-violent homosexual advance. The legal system has operated to reduce the liability of these offenders even when broader society does not accept that such a reduction is justified. As a result, these offenders have not been adequately punished, meaning that above all these victims have not received justice.

Similarly, the family members and friends of the victims killed in such circumstances have witnessed the trials of these offenders, expecting justice to be served, only to find that the killer is not considered a murderer under the law. Instead, these family members and friends find some level of blame is placed on the actions of the victim, that somehow by engaging in a non-violent sexual advance they have helped to cause and even partly deserved their own death.

The saddest part of preparing this submission was in reading the Committee’s briefing paper and learning that, not only have at least 11 men been killed in these circumstances in NSW, but also that 11 families were so profoundly let down by the justice system between January 1990 and September 2004. It is highly likely that the defence has been used more times since then, dishonouring more victims and causing additional pain to more families already dealing with the loss of a loved one.

I wrote earlier that it is the fault of the High Court, in Green v The Queen, that the homosexual advance defence remains a part of the criminal law. Where the courts get it wrong, as they clearly have in this area, it is the responsibility of the parliament to remedy the error and thereby ensure the justice system operates in a fair and non-discriminatory manner.

There are two options for the NSW Parliament to abolish the homosexual advance defence.

The first would be to amend s.23 of the Crimes Act 1900 by inserting a section which would exclude non-violent homosexual advances from forming the basis of provocation. This was the course of action recommended by the Homosexual Advance Defence Working Group in 1998, and appears to have been adopted in the ACT and NT.

The second option would be repeal s.23 in its entirety and abolish the partial defence of provocation altogether, as has been done by Tasmania, Victoria and Western Australia.

As I have concentrated solely on the homosexual advance defence and not on the impact of such a change on cases involving family violence and other instances where the partial defence of provocation may be applied, I am not in a position to recommend which of these options should be adopted in the broader context (for example, if s.23 is repealed entirely, it may be necessary to incorporate a new provision for ‘defensive homicide’, as the Victorian Parliament did in 2008).

Nevertheless, I believe it is clear the NSW Parliament should adopt one of these courses of action to ensure that no more killers are able to rely on the homosexual advance defence to reduce their conviction from murder to manslaughter. The homosexual advance defence is unjust, it is discriminatory and it should be made history.

Recommendation

The NSW Parliament should either:

a)      Amend s.23 of the Crimes Act 1900 by inserting a section which would exclude non-violent homosexual advances from forming the basis of provocation; or

b)      Repeal s.23 of the Crimes Act, thereby removing the partial defence of provocation entirely.

Alastair Lawrie

10 August 2012

Letter to Robert McClelland on Marriage Equality

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The Australian federal parliament will vote on legislation to provide for marriage equality in the upcoming sittings, which start next Tuesday (14 August 2012). My local Member of Parliament, Robert McClelland, has so far not declared which way he will vote on the bill(s), so I have written the following letter to him asking him to ‘do the right thing’. I will post any reply that I receive.

Dear Mr McClelland,

I am writing to you, as one of your constituents, to ask you to vote for marriage equality during the upcoming sittings of parliament.

My partner Steve and I have been together for four years. In fact, today is our fourth anniversary. During that time, we have had a relationship like any other couple. We love each other, we support and care for each other, we have each been embraced by the other’s family, we make plans for our future life together.

One plan which we have been unable to make, however, is that for our wedding day. This is despite the fact we have been engaged to be married for over two and a half years.

We cannot because, at this stage, we would be unable to legally do so in our own country. We do not want to be forced to travel to a foreign country, and get married under their laws, and then return to Australia and not have that marriage recognised by our own government.

Equally, we want to be able to be married in front of as many family members and friends as possible. I suspect that is the desire of most couples for their wedding day. But, unlike most, by forcing same-sex couples to marry overseas, the Australian parliament is effectively limiting the number of people who can be there for that special moment.

Many of our friends would not be able to afford to attend an overseas wedding, or would be unable to take the necessary time off work. Similarly, both Steve and I only have one grandparent left, and each would be unable to attend a wedding elsewhere because of poor health. We would both be incredibly disappointed if they could not be there for our wedding day simply because of a discriminatory piece of legislation.

When the bill which would introduce marriage equality comes before federal parliament, please vote to allow Steve and me, and thousands of other couples just like us, to get married in our own country, in front of as many family members and friends as possible.

This is a historic opportunity for members of parliament to formally recognise the love between all adult couples, irrespective of sexual orientation and gender identity. As such, the passage of this law would be a great achievement for Australia, demonstrating that all of its citizens are equal before the law, whether they are straight, gay, lesbian, bisexual, transgender or intersex.

I implore you to help make that happen by voting yes on marriage equality.

Sincerely,

Alastair Lawrie