Increasing LGBTI Representation

Posted on March 5, 2019 by Alastair Lawrie

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

Over recent years there have been a number of legal and policy reforms that have benefitted the lesbian, gay, bisexual, transgender and intersex community (not the least of which was the passage of same-sex marriage).

However, many of these changes have been piecemeal in nature, and too often they have been unnecessarily compromised by limitations or religious exceptions (once again including same-sex marriage, see No, we don’t have marriage equality yet).

At least part of the reason for the ad hoc and incomplete nature of these reforms is the lack, or insufficient amount, of representation of the LGBTI community in decision-making.

For the purposes of this article, by LGBTI representation I mean:

Representation in Parliament
Representation in the Executive, and
Representation through Consultation

I will address each of these areas in turn.

Australia’s first out Commonwealth representative, former Senator Bob Brown.

LGBTI Representation in Parliament

It is fair to say that there has been rapid improvement in this area in the last four years, especially in relation to Commonwealth Parliament.

When I wrote about this issue early last term (see LGBTI Voices Absent from the Chamber), there had still never been an out LGBTI member of the House of Representatives. Now there are five:

Trent Zimmerman, who was the first out gay man elected to the lower house in late 2015
Julian Hill, Trevor Evans and Tim Wilson, who were all elected at the 2016 federal election, and
Kerryn Phelps, who became the first out lesbian elected to the House of Representatives in late 2018.

These MPs have joined the four current LGBTI Senators:

Penny Wong, who was the first out lesbian elected to either chamber
Louise Pratt and Dean Smith, and
Janet Rice, who I understand was the first out bisexual elected at Commonwealth level.

There have also been three previous gay Senators (Bob Brown, who was the first out gay man elected to either chamber, Brian Greig and Robert Simms).

So, in the lead-up to the 2019 election, we now have nine LGBTI MPs and Senators, out of 226 in total, which is an encouraging start.

However, if one of the main benefits of having LGBTI representation in Parliament is to ensure it hears from a diversity of views, then those LGBTI representatives should themselves reflect the diversity of our community.

Unfortunately, at this stage that is clearly not the case. As with the Parliament more generally, LGBTI MPs and Senators have so far been predominantly cis white men.

There have been twice as many male LGBTI MPs and Senators as female ones (with a similar discrepancy in the NSW Parliament as well).

There has still never been a transgender MP or Senator in Australia, or even an MP at state or territory level (for comparison, New Zealand’s first transgender MP, Georgina Beyer, was elected almost two decades ago).

Despite making up a large proportion of the LGBTI community, there has only been one out bisexual MP or Senator.

There has also been only limited representation of queer people of colour, with Penny Wong federally, Harriet Shing in Victoria’s upper house and Chansey Paech, the first gay Indigenous MP in the Northern Territory Parliament, and

There has never been an out intersex MP, at Commonwealth or state and territory level, although Tony Briffa was the first intersex person elected mayor in the Western World.

While increasing the number of MPs and Senators who are LGBTI is important, so too is ensuring that they come from across the LGBT and I communities, so that we do not continue to have a mostly white, mostly gay male, with some lesbian and one bisexual, but not transgender or intersex, parliamentary contingent.

Australia’s first out female Commonwealth representative, Senator the Hon Penny Wong.

LGBTI Representation in the Executive

Perhaps just as important as having LGBTI voices in the Parliament, is having LGBTI representation formally embedded within the executive arm of Government.

The most obvious example of this would be having a formally appointed Minister for Equality, a role Martin Foley has played in the Victorian Government for more than four years.

There is no equivalent position within the Morrison Liberal-National Government federally, although Louise Pratt is currently the Shadow Assistant Minister for Equality in the Labor Opposition (and would presumably fulfil this role in a Shorten Government, should they be elected in May).

As far as I am aware, there is also no current Minister or Shadow Minister for Equality in NSW, although perhaps that is something that could change after the upcoming state election on Saturday 23 March 2019.

At the Commonwealth level at least there is another way in which LGBTI issues should be represented, and that is through the appointment of a standalone Commissioner for LGBTI issues within the Australian Human Rights Commission.

As I have written previously (see 5 Years of Commonwealth LGBTI Anti-Discrimination Laws. 5 Suggestions for Reform), the Commission is currently unable to adequately perform this function, with LGBTI issues forming just one part of the overall policy responsibilities of the Human Rights Commissioner, sitting alongside ‘religious freedom’ (with which it often competes for attention, sometimes unsuccessfully).

Fortunately, the appointment of a standalone LGBTI Commissioner within the Australian Human Rights Commission has been promised by the Shorten Labor Opposition, so this is potentially something that may change in the near future.

Another model of LGBTI representation that has been adopted in Victoria is a Commissioner for Gender and Sexuality within the public service, to coordinate LGBTI policy and programs across Government. This is something that again should be considered elsewhere, including at Commonwealth level and in NSW.

Any Minister for Equality and/or public service LGBTI Commissioner should also be supported by an office for equality within a central agency, preferably the Department of Prime Minister and Cabinet, and its respective state and territory equivalents.

Adopting any of the above formalised representation structures within executive government (and preferably all of them), will hopefully ensure that LGBTI issues are adequately considered by Governments of all persuasions.

LGBTI Representation through Consultation

The third and final means of LGBTI representation is no less important than the first two – and that is ensuring Government hears from lesbian, gay, bisexual, transgender and intersex communities themselves about the issues that affect them.

While this happens occasionally now (with Governments consulting directly with a few key groups on select policy proposals) what is needed is an ongoing, formalised structure whereby LGBTI organisations, and individuals with relevant expertise, are appointed to panels to represent the views of the LGBTI communities to decision-makers on a consistent basis.

Given the impact of justice, health and education laws and policies on LGBTI communities, especially at state and territory level, I would suggest (at least) three standing committees on each of these respective portfolio areas, and in other areas on an ‘as needed’ basis.

There are of course risks to this model, including that panel members do not accurately, or adequately, reflect the views of the communities they are supposed to represent.

These risks can be minimised by ensuring there are open application processes, and that applicants demonstrate how they propose to reflect the opinions of the LGBTI community in performing their role. Consideration could also be given to term limits to ensure appointees are not ‘captured’ by the bureaucratic process, thereby reducing their effectiveness in advocating to Government.

Ultimately, if LGBTI representation can be increased in Parliament, the Executive and through Consultation, we will see better decision-making by Governments on LGBTI issues, for the benefit of the entire community.

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Do you feel proud, Malcolm?

Posted on October 25, 2016 by Alastair Lawrie

Update 18 February 2017:

Over the past five years I have written to a number of Immigration Ministers (including Chris Bowen and Brendan O’Connor under Labor, and Scott Morrison under the Coalition), expressing concerns about the mistreatment of LGBTI people seeking asylum, and especially the policy of detaining, processing and resettling LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and, until May 2016, Nauru).

It is fair to say that I have received an equal number of disappointing replies to my correspondence – my letters, and the responses to them, are published here.

I was prompted to write again in October 2016, this time to Prime Minister Malcolm Turnbull, following the exchange between Labor Senator Louise Pratt and the Secretary of the Department of Immigration and Border Security, Mr Michael Pezzullo, at Senate Estimates.

During that exchange, not only did Mr Pezzullo display a stunning lack of awareness of the ongoing criminalisation of homosexuality in our nearest neighbour, he also seemed uninterested in the issue of how PNG’s criminal laws might impact LGBTI people seeking asylum sent there by the Australian Government.

Predictably – although still shocking – Mr Pezzullo argued that Australia’s obligation towards these people seeking asylum ended at the point of transfer to Manus Island, and therefore we collectively bore no responsibility for ensuring that their human rights were respected.

The full letter I wrote to the Prime Minister is reproduced below. Almost four months later I have finally received a response, not from Mr Turnbull, nor even from the current Immigration Minister Peter Dutton, but instead from the Department of Immigration of Border Protection. This is what they sent:

Dear Mr Lawrie

Thank you for your correspondence of 9 November 2016 to the Prime Minister, the Hon Malcolm Turnbull MP, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. Your correspondence has been referred to the Minister for Immigration and Border Protection as the matters raised fall within his portfolio responsibilities. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I apologise for the delay in responding.

As out lined in the Department’s response to your previous letters to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, and the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, Australia takes its international obligations seriously, including those under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

As previously advised, the Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to a regional processing country where any asylum claims they may have will be assessed. The Government has signed Memoranda of Understanding with the Governments of Nauru and Papua New Guinea (PNG), which support this.

As previously noted in the Department’s response to your letter to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, any claims made against a regional processing country by the IMA, including claims concerning the treatment of homosexuals in the regional processing country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed regional processing country, or an alternative regional processing country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.

As previously advised, the enforcement of PNG domestic law is a matter for the Government of PNG. The Australian Government is aware of laws relating to homosexual activity in PNG but also understand that there have been no reports of prosecutions under those laws since 2012. As of May 2016 same-sex activity is legal in Nauru.

Further, I confirm that if homosexual activity should occur in the Regional Processing Centres, there is no mandatory obligation under PNG or Nauru domestic law for Australian officers or contracted service providers to report such activity to the respective Government or police.

Thank you for brining your concerns to the Government’s attention.

Yours sincerely

[Signature withheld]

A/g Director ABF Ministerial Correspondence Section

Support Group – Australian Border Force

14 February 2017

There are obviously a number of worrying statements in this letter, including:

The Department of Immigration and Border Protection has reiterated the process that LGBTI people seeking asylum who arrive by boat must, in the short period between arrival and transfer, declare their sexual orientation, gender identity and intersex status, and express their specific concerns about being detained in PNG. This ignores the lived experience of LGBTI people seeking asylum, their often legitimate safety concerns in disclosing their status especially in close proximity to other people seeking asylum who may be unaware and/or not accepting of them, and the fact that for many people seeking asylum it takes months or even years for them to disclose anti-LGBTI persecution as the basis of their refugee claim. It also presumes that they are aware of the current criminal laws of Papua New Guinea, something of which even the Secretary of the Department of Immigration and Border Security was ignorant.

The letter also repeats previous ‘assurances’ that there is no mandatory reporting obligation in relation to homosexual activity in the Manus Island detention facility. However, this avoids the real problem – the criminal laws of PNG do apply to LGBTI people seeking asylum and refugees on Manus Island, and homosexual conduct can be reported to PNG police. The mere threat of such referral is sufficient to cause real fear among LGBTI people in this situation, alongside legitimate safety concerns (after all, it is difficult to report anti-LGBTI violence to police when the same authorities can prosecute you for simply being who you are).

Overall, then, there is nothing in the response from the Department of Immigration and Border Protection to suggest that the situation for LGBTI people seeking asylum detained on Manus Island will improve anytime soon. Shamefully, the human rights abuse of LGBTI people put there by the Australian Government will continue for the foreseeable future. Which means that our responsibility to stand up for them, and campaign for change, must continue too.

Original Post:

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Tuesday 25 October 2016

Dear Prime Minister Turnbull

LGBTI Refugees and People Seeking Asylum

I am writing to you about a subject that is incredibly important, but one that does not often attract significant attention – from the media, from the public and, above all, from the Australian Government.

That subject is the mistreatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees, and people seeking asylum, including the decision by successive Australian Governments to detain, process and even seek to resettle these people in countries that criminalise homosexuality.

I believe that this approach, exposing people who have sought Australia’s protection to persecution and prosecution in other countries, simply because of who they are, is a fundamental breach of human rights.

I have expressed concerns about this mistreatment from the very beginning of Australia’s current offshore processing regime. Within one month of the passage of legislation authorising the removal of people seeking asylum who arrived in Australia by boat to Nauru and Manus Is, Papua New Guinea (PNG) in August 2012, I wrote to both then Immigration Minister Chris Bowen, and then Shadow Immigration Minister – and now Treasurer – Scott Morrison.

In that letter I asked: “Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?

“Are you aware that homosexuality is current illegal in all three countries[i] to which the Australian Government currently intends to send asylum seekers? [And] Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian government?”

It took nine months to obtain a reply, not from Minister Bowen, nor from his successor (Brendan O’Connor), but instead from the Department of Immigration. But the reply I did receive was incredibly disappointing.

Not only did it fail to answer whether LGBTI people transferred to Nauru and PNG could be subject to criminal prosecution, it then indicated that, in order to avoid the risk of mistreatment on the basis of sexual orientation, gender identity or intersex status in those countries, people seeking asylum needed to raise those concerns in the extremely short ‘window period’ prior to transfer[ii].

It seems the Australian Government was completely uninterested in LGBTI people transferred to Nauru and PNG if they only disclosed their sexual orientation, gender identity or intersex status after being transferred.

Someone else who was uninterested in this subject was Shadow Immigration Minister Scott Morrison, who never even bothered to reply to my correspondence.

Undeterred, following the change of Government in September 2013 and with Mr Morrison assuming the role of Minister for Immigration and Border Protection, I wrote to him again in February 2014.

In that letter I repeated my concerns about the mistreatment of LGBTI refugees and people seeking asylum transferred to Manus Island and included reference to the Amnesty International Report This is Breaking People, which had found that:

“Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there [and]
Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police…”

I then included a personal challenge to Mr Morrison: “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.”

This time around, it only took the Department of Immigration and Border Security five and a half months to respond to my concerns[iii]. Their underwhelming response included the following statement:

“The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

“If homosexual activity should occur in the [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted service providers to report such activity to the PNG Government or police.”

In short, the then Australian Government – of which you were a senior Minister – rejected the claim that there was mandatory reporting of ‘homosexual activity’ to PNG police, but explicitly did not deny that the laws of that country, outlawing sex between men, applied to the refugees and people seeking asylum that we, as a country, had placed there.

In March of this year, I raised the issue of the mistreatment of LGBTI refugees and people seeking asylum again, this time through a submission to the Senate Legal and Constitutional Affairs Committee inquiry into conditions and treatment of asylum seekers and refugees in Nauru and PNG.

Unfortunately, that Senate inquiry lapsed due to your calling of a double dissolution election but, before Parliament was dissolved, the Committee issued an interim report, including the following paragraph:

“1.57 The committee received some evidence focused on the situation of lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the [Regional Processing Centres]. Mr Alastair Lawrie noted that male homosexual conduct remained a criminal offence in both Nauru[iv] and PNG, and expressed the view that ‘the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.’ Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual asylum seekers in the [Regional Processing Centres], and the lack of appropriate health and community services in the two countries…”

Thankfully, post-election the Senate has decided to initiate a new inquiry looking at the issue of abuse, self-harm and neglect of asylum seekers in Nauru and PNG, and its investigation is ongoing.

On a more negative note, however, it is unclear how the Government will respond to any findings from such an inquiry, given Liberal and National Party Senators recommended, in the interim report, that “examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

Coincidentally, it is Senate Estimates that leads me to write to you, in your role as Prime Minister, today.

Last Monday, 17 October 2016, during the Legal and Constitutional Affairs Committee’s Senate Estimates Hearing of the Department of Immigration and Border Protection, there was an extraordinary exchange between WA Labor Senator Louise Pratt, and Departmental Secretary Mr Michael Pezzullo.

And by extraordinary, I mean extraordinarily dismissive of the legitimate concerns of Senator Pratt, and others including myself, about the mistreatment of gay, bisexual and same-sex attracted refugees and people seeking asylum placed on Manus Island by successive Australians Governments.

I have included the full text of this exchange as an Attachment with this letter[v]. I strongly encourage you to read it. If you do, you will see how little priority has been given to this issue, including by the Department of Immigration and Border Protection under the Prime Ministerships of your predecessors and now of course under you.

First, it was surprising to witness, via the following exchange, Mr Pezzullo appear not to know that male homosexuality is criminalised under PNG law:

“Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not. Senator.

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG.”

Given, as we have seen above, I have raised this issue with successive Ministers for Immigration, and received multiple responses from the Department of which he is now the head, not to mention the ongoing advocacy on this subject by organisations like the Human Rights Law Centre, Amnesty International, Kaleidoscope Human Rights Foundation and NSW Gay & Lesbian Rights Lobby, it is alarming to hear the Secretary’s lack of knowledge about the risk of prosecution for LGBTI[vi] people detained and processed on Manus Island.

Second, and less surprisingly but even more worryingly, was the distinct lack of concern on display by Mr Pezzullo, with the implication that the mistreatment of LGBTI refugees and people seeking asylum was not something that had crossed his desk, or that he had actively turned his mind to, in his two years as Secretary:

“Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer.” [And later]

“Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.”

Third, and perhaps least surprising – but most worrying – of all, was the position stated by Mr Pezzullo, at multiple points, that the Australian Government has no responsibility towards LGBTI refugees and people seeking asylum that it has sent to Manus Island after they have been transferred. For example:

“Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 2 1⁄2 years; the Australian government acquitted its nonrefoulement obligations over 2 1⁄2 years ago, at a minimum—“ [And later]

“Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.”

In effect, Mr Pezzullo was arguing, on behalf of the Australian Government – your Government – that, once Australia had transferred refugees and people seeking asylum to Manus Island, and unless those LGBTI refugees had explicitly raised concerns in the hours or at most days between their arrival by boat and their transfer, Australia had no ongoing responsibility towards them.

Now, Mr Pezzullo may or may not be correct from a legal viewpoint. I am sure there are human rights advocates, and potentially courts and tribunals both in Australia and in Papua New Guinea, who might take a different view.

But he is definitely wrong in every other respect. Australia, and the Australian Government, absolutely has a responsibility towards LGBTI refugees that, through its actions, it has caused to be sent to Manus Island for detention, processing and even resettlement.

It has a moral obligation. An ethical obligation. A social obligation. A human obligation.

These are people who sought the protection of the Australian Government, which then chose to send them to countries where, far from being safe from persecution, they were – and still are – at risk of criminal prosecution simply because of who they are.

I cannot see how anyone could possibly assert that the successive Australian Governments, and Prime Ministers, who have created this situation and exposed these people to potential harm, do not have a responsibility towards them.

And obviously that means that your Government, and now you as Prime Minister, also have a moral, ethical, social and above all human responsibility to do something about it.

The question I have for you is: will you?

Will you take action to remove LGBTI refugees and people seeking asylum from Manus Island, where they were placed by the Australian Government and where they are still subject to criminalisation?

Prime Minister, you are a Member of Parliament representing one of the ‘gayest’ electorates in Australia, with literally thousands, if not tens of thousands, of LGBTI people living in the seat of Wentworth.

You claim to support the equality of LGBTI people, both legally and socially. Earlier this year, you even became the first sitting Prime Minister to attend Australia’s largest ‘Pride’ event, the Sydney Gay & Lesbian Mardi Gras Parade.

That night, you joined in celebrating the hard-fought and hard-won freedom, and increasing equality[vii] and acceptance, of Australia’s LGBTI community, surrounded by tens of thousands of lesbian, gay, bisexual, transgender and intersex people, as well as their families and friends.

That very same night, and for hundreds of nights beforehand and every night since, just 3,500km to the North, a much smaller number of gay, bisexual and same-sex attracted refugees had far less reason to celebrate: certainly not freedom, and instead of equality and acceptance, a fear of prosecution and persecution by a Government that considers them criminals.

And the only difference between these two groups – between the ‘loud and proud’ crowd on Oxford St, and the isolated and vulnerable individuals on Manus – is where they were born.

The actions of successive Australian Governments have put the latter group where they are, directly in harm’s way. As the Prime Minister since September 2015, and leader of the current Liberal-National Government, you now keep them there.

You might have celebrated ‘pride’ with Australia’s LGBTI community almost 8 months ago, but contributing to the detention, processing and resettlement of LGBTI refugees in countries that criminalise them is nothing to be proud of.

And I think, deep down, you understand that. In which case, it is up to you to do something that you, your Government and the country you lead can be proud of:

Bring. Them. Here.

Your predecessors negotiated with the PNG Government for Manus Island to become the site of the ‘Regional Processing Centre’. You have the power to negotiate with the PNG Government to close that same centre and bring the refugees and people seeking asylum there back to Australia.

In fact, after the PNG Supreme Court earlier this year ruled that the detention of refugees and people seeking asylum on Manus Island was illegal, and in breach of the PNG Constitution’s right to personal liberty[viii], I suspect their Government would welcome such a move.

Bring them here and end the frankly horrific situation whereby LGBTI people who have fled persecution in other parts of the world, including those fleeing persecution on the grounds of sexual orientation, gender identity or intersex status, have been deliberately left in a place where they are subject to criminal laws on the basis of those same attributes.

Successive Australian Governments put them there. You, as Prime Minister, and leader of the current Government, can get them out. Do something that makes us all proud. Please, Prime Minister Turnbull, bring them here.

Sincerely,

Alastair Lawrie

Prime Minister Malcolm Turnbull, celebrating ‘pride’ at the 2016 Sydney Gay & Lesbian Mardi Gras Parade. Not pictured: The gay, bisexual and same-sex attracted refugees and people seeking asylum detained on Manus Island, PNG.

**********

Attachment A

Senate Estimates Monday 17 October 2016

Legal and Constitutional Affairs Committee Hearing re Department of Immigration and Border Protection

Senator PRATT: I would like to know how many men on Manus have been given positive refugee status determinations on the basis of their sexuality.

Mr Pezzullo: Their claim of persecution relates to sexuality?

Senator PRATT: That is right.

Mr Pezzullo: I will ask Ms Noble or other officers to join me, but I am not sure that we would immediately have that data to hand, because we do not do the refugee status determination. Unless Ms Moy can answer the question directly, we will take it on notice.

Senator PRATT: You would agree that some would have had to have been found as refugees, basically?

Mr Pezzullo: Possibly. I do not know.

Ms Moy: The RSD process in Papua New Guinea is run by ICSA. We are not privy to the information of each claim. We would need to go to Papua New Guinea and ask them that question. So we would need to take it on notice.

Senator PRATT: But that is a difficult thing, given that homosexuality is actually illegal in PNG. They are having to make these disclosures to the PNG government, in which case they may even have a well-founded fear of persecution from within PNG. Is that not correct?

Mr Pezzullo: We will have to take on notice how the PNG authorities have dealt with the assessment of claims pursuant to both their international legal obligations and the operation of their domestic law.

Senator PRATT: Well, homosexuality is a criminal offence there. It is illegal.

Mr Pezzullo: I understand the point you are making. What I am saying is that how the PNG authorities have assessed those claims is a matter that would not be readily known to Ms Moy and myself.

Senator PRATT: What is the government’s advice to those men who are currently on Manus who are refugees because they are gay and who are about to be resettled in PNG?

Mr Pezzullo: Which government’s advice? The advice of the Australian government?

Senator PRATT: Yes.

CHAIR: Well, that is not a question for you, Mr Pezzullo. You are not here to give advice to people in detention in another country.

Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 21⁄2 years; the Australian government acquitted its nonrefoulement obligations over 21⁄2 years ago, at a minimum—

Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer. Australia, through two agreements, two heads of agreement—one initiated under the Gillard government and one under the Rudd government and then consolidated under subsequent governments—entered into agreements to transfer persons who arrived here by illegal maritime means into the jurisdictions of either Nauru or PNG, two separate transfers. At that point our nonrefoulement obligations had to be addressed and acquitted, and they were. There is no ongoing—

Senator PRATT: In what manner were issues of sexuality addressed within that agreement? Or were they not?

Mr Pezzullo: You cannot refoule persons back to the country of origin where they have raised claims of persecution. There were no claims of persecution against the states or the regimes of Nauru and PNG.

Senator PRATT: I understand that that is about returning people to their country of origin. But in effect we have taken them to a country where they could be subject to exactly the same form of persecution, where they are supposed to be having their claim for asylum processed.

Mr Pezzullo: Well, you speculate that. When you say we have ‘taken them to a country’—we cannot simply drop people off. We entered into intergovernmental agreements, to transfer persons from the Australian migration jurisdiction to other migration jurisdictions. At that point, the last of which occurred 21⁄2 years ago, because there have been no transfers since, all of Australia’s obligations in that regard were discharged.

Senator PRATT: In other words, the Australian government has no responsibility to those gay men who are currently detained on Manus in terms of whether their human rights in relation to their sexuality will be upheld in PNG or not.

Mr Pezzullo: I understand the question you are asking. You say that the Australian government has no responsibility in that circumstance, but the Australian government—a number of governments, actually, that straddle several parliamentary terms—discharged all of its legal undertakings at the time of the transfer, yes.

Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.

Senator PRATT: But we have a contract with the PNG government that—

Mr Pezzullo: We have an agreement, yes.

Senator PRATT: We have an agreement for which the PNG government is paid, and within that agreement there are men whose original claim for protection was based on their homosexual identity. Their claims are being processed in a country in which homosexuality is illegal.

Mr Pezzullo: Senator, you state, as an assertion—in what I think is a question—that their original claims were founded on sexuality.

Senator PRATT: They may or may not have been.

Mr Pezzullo: Thank you.

Senator PRATT: The question is that people who are homosexual and who are currently detained or being processed on Manus—their homosexuality may or may not have been part of their original claim—are being processed in a country in which homosexuality is illegal and they are being forced to be there.

Mr Pezzullo: Which might mean, in the circumstances that you describe—and this is a matter for the government of Papua New Guinea—that the government of Papua New Guinea is not able to resettle those gentlemen within their domestic jurisdiction. In that case, the government of PNG will need to enter into arrangements with so-called third country resettlement options where that clash with domestic law—or that contradiction with domestic law, if I can characterise it in those terms—is not applicable.

Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not. Senator

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG. I understand the point of the question you are asking. What I am saying is: those persons—the single adult men who are on Manus—are in the legal jurisdiction of the government of Papua New Guinea. They have both international obligations that pertain to the 1951 Refugee Convention, which include non-refoulement, and other complementary protections that attach to various other covenants that that government has entered into. Then they have domestic laws which, as I understand from reporting, can be characterised in the way that you have described. It is now a matter for the government of Papua New Guinea to resolve: how do you settle a person who you know to have a well-founded fear of persecution—across a range of matters, one of which might be related to sexuality—within your domestic jurisdiction? I do not know—Ms Moy might be able to assist me—if we have been asked for technical assistance in terms of how to perhaps assist with the country options. I just do not know.

Ms Moy: Not at this stage.

Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.

Senator PRATT: I think I have exhausted that. Clearly the government has no further responsibility.

**********

Footnotes:

[i] At the time the Australian Government continued to advocate the transfer of refugees and people seeking asylum to Malaysia, in addition to Nauru and PNG.

[ii] From the response: “Pre-Transfer Assessment is undertaken prior to a person’s transfer to a [Regional Processing Country] to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

Where a person raises concerns against a designated RPC, the Departmental officer refers to relevant country information, as well as assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of is power under section 198AE of the Migration Act 1958 to exempt that person rom transfer.”

[iii] The response is included with the original letter, here.

[iv] Since the time of my submission to that inquiry, and in very welcome news, Nauru has finally decriminalised male homosexuality.

[v] The original transcript for this hearing can be found on pages 132-134 here.

[vi] I note that only ‘male’ refugees have been transferred to Manus Island, in which case the majority of people affected by these laws will be gay, bisexual and same-sex attracted ‘men’. However, for consistency with previous letters (to Ministers Bowen and Morrison) that also dealt with Nauru (to which women and children have been sent) the term LGBTI will continue to be used throughout this post.

[vii] Although obviously still not full equality, not just on the issue of marriage, but also in relation to trans birth certificates, non-consensual surgeries on intersex infants and extensive religious exceptions to anti-discrimination laws, among other issues.

[viii] ABC News, PNG’s Supreme Court rules detention of asylum seekers on Manus Island is illegal, 27 April 2016.

4 More Arguments Against an ALP Binding Vote on Marriage Equality… And Why They’re Wrong, Too

Posted on April 16, 2015 by Alastair Lawrie

Last week I wrote about, and responded to, four of the most common arguments that will be used by opponents of a binding vote on marriage equality between now and the ALP National Conference in July (see: https://alastairlawrie.net/2015/04/09/4-arguments-against-an-alp-binding-vote-on-marriage-equality-and-why-theyre-wrong/ ).

Well, they are not the only arguments that will be employed by people resisting any move to a bound Labor Party vote in favour of full LGBTI equality. This post looks at four more arguments that we are likely to hear… and explains why they are wrong, too.

A conscience vote on both sides is the only way marriage equality can happen

The current make-up of Commonwealth Parliament, with a large Liberal-National Party majority in the House of Representatives, means that marriage equality cannot be passed in this term without a formal conscience vote within the Liberal Party. It is no surprise then that so much effort, from Australian Marriage Equality and others, has gone into trying to secure that outcome.

But, even if the Prime Minister, the Hon Tony Abbott MP, grants a ‘free vote’ – and that remains a pretty big if – it does not mean marriage equality will necessarily pass.

In fact, looking at the numbers, it would be very difficult (although not impossible) for it to succeed, even with a conscience vote on both sides – largely because the number of moderate Coalition MPs voting in favour is unlikely to be enough to get it over the line, especially given the significant minority of socially conservative ALP MPs that would still use their conscience vote to oppose it.

Which means it is incumbent upon us to consider other ways of reaching 75. One would be for the ALP to adopt a binding vote for marriage equality, ensuring all 55 of its lower house MPs support it, and for the Liberals to adopt a conscience vote, meaning the votes of only 1 in 5 Coalition MPs would be required for passage. Of course, the inherent risk of this strategy is that, once Labor adopts a binding vote in favour, the Coalition continues to embrace a ‘party vote’ against.

And that might happen. But it is by no means guaranteed – there is no reason why the decision of one side should automatically be reflected by the other (noting that we are already 3 and a half years into a period of ‘asymmetry’, with a bound vote on one side and conscience vote on the other). There will also be some MPs, with surnames like Gambaro, O’Dwyer and Turnbull, who would have a compelling electoral reason to keep trying for a conscience vote in any event.

All of which means that it is unclear whether marriage equality can be achieved this term, and if so, under what circumstances. What is clear, however, is that, given there is a real risk it will not be passed, we need to be actively considering what happens at the 2016 election, and how marriage equality might best be achieved in its aftermath.

The most direct path to marriage equality is for the ALP to adopt a binding vote at this year’s National Conference, and for it to win the 2016 federal election. In that scenario, marriage equality is passed, no ifs or buts.

Even if the election result is close either way –a small Labor victory, minority government/hung parliament, or a small Coalition victory – an ALP binding vote still probably means marriage equality is passed (because most crossbenchers are in favour, and a handful of Liberal Party backbenchers would likely cross the floor to support).

On the flipside, a conscience vote within the Labor Party, and either a conscience vote within the Liberal Party or a Coalition vote against marriage equality (with a small number of dissenters), would still leave marriage equality in plenty of doubt, and some doubt even if Labor wins the election next year.

So, while there is obviously a strong case for people to be pushing for a Coalition conscience vote on marriage equality at the moment, it is by no means the only way to achieve this important reform – and, in some scenarios, it might not be needed at all.

If Liberal MPs enjoy a conscience vote, Labor MPs should have one too

This argument is related to the first, and suggests that, if and when Tony Abbott (or his successor) eventually grants a conscience vote within the Liberal party room, giving his colleagues a ‘free vote’ on the issue, Labor Party parliamentarians would also deserve a conscience vote.

Leaving aside the fact that marriage equality concerns the rights of LGBTI-inclusive couples, not the supposed ‘rights’ of ALP MPs and Senators, there are two main problems with this approach.

First, as we have already seen, there is no reason why the decision by one side of politics to grant a conscience vote (or not) must automatically be reflected by the other. It has been more than three years since the ALP granted its parliamentarians a conscience vote on this issue, something that has still not been replicated by either the Liberal Party or National Party.

Just because the Liberal Party might adopt a conscience vote in the future does not mean the ALP must keep theirs.

Second, using this rationale to argue against a binding vote within the ALP is effectively giving power to Prime Minister Abbott to determine both whether the Liberal Party has a conscience vote, and whether (or at least when) the ALP moves to a binding vote.

I can think of very few policy issues where the delegates to ALP National Conference would happily cede their authority, on an issue of fundamental importance to a large number of ALP members, to Tony Abbott. Here’s hoping they don’t do this, on marriage equality, come July.

Why should Tony Abbott get to decide, on one hand, whether Liberal MPs get a conscience vote, and on the other, whether Labor MPs should be bound?

Passing marriage equality through an ALP binding vote would place it in danger of being repealed in the future

I have heard this argument a few times – that, if we manage to secure marriage equality solely, or even primarily, because of a binding vote within the ALP, then we risk it being repealed by a subsequent Coalition Government.

In reality, there is very little danger of this happening. If the ALP adopts a binding vote at the 2015 National Conference, and marriage equality is passed this term, it means, at a minimum, that the Liberals have granted their MPs a conscience vote (and, given the direction of progress across society, it is unlikely they would retreat from that commitment in the future).

Labor is also highly likely to narrow the gap in terms of numbers in the House of Representatives at the 2016 election, further entrenching this reform under a combined bound vote/conscience vote approach.

If the Liberal Party does not agree to a conscience vote now, and marriage equality is instead passed via a binding vote under a new Labor Government in 2016, it is nevertheless hard to see it being repealed at a later date.

That would involve the Coalition returning to power in 2019, maintaining its ‘party vote’ against equality (which, with the passage of another four years, will be increasingly difficult to sustain) and ensuring no Liberal or National backbench Senators cross the floor to prevent repeal. Which is an unlikely combination.

It also dramatically underestimates how quickly marriage equality would become an accepted part of the law, and culture. With approximately two thirds of the population already supportive, even some people who are presently opposed would be left wondering, in a relatively short timeframe after it was passed, just what all the fuss was about.

Indeed, the only comparable situation I can think of is Canada, where the Conservative Party, led by Stephen Harper, won minority Government in January 2006, just six months after Parliament passed its nation-wide marriage equality legislation.

Elected with a promise to hold a parliamentary vote on ‘re-opening the same-sex marriage debate’, within months it was clear that opposition had diminished, and acceptance of equality had grown, even within his own party.

By December 2006 a vote was indeed held – and lost by 175 to 123 – leaving Mr Harper to admit “I don’t see reopening this question in the future”. And, almost ten years later, it is clear he was right.

Australia would almost definitely be the same – once passed by Parliament, it is highly unlikely a future Parliament would vote to repeal marriage equality.

A binding vote on marriage equality would ‘split’ the Labor Party, and therefore shouldn’t be pursued

Again, I have seen this argument used a few times recently, and it deserves a response. From a marriage equality advocate’s point of view, this possibility should be assessed through the prism of whether it helps, or hinders, the passage of marriage equality legislation. Nothing more or less.

And from that perspective, it is difficult to see a potential ‘split’ harming the cause. This is because, in 2012, more than 40% of the ALP caucus failed to vote in favour of marriage equality. Even assuming the proportion of MPs backing reform has risen since then, and that perhaps up to three quarters of House of Representatives ALP MPs would now support it, that still leaves 14 out of 55 who would likely exercise their ‘conscience vote’ against LGBTI equality.

I have seen no reports or estimates, anywhere, to suggest that 14 or more ALP MPs would cross the floor against a binding vote and therefore be expelled from the Party (and an additional number in the Senate). And I don’t think any serious commentator genuinely believes the number of people willing to break the rules of their political party, over this matter, would be that high.

Which means that, even accounting for a very small handful of MPs and Senators who could conceivably leave the Party over this issue, the number of votes for marriage equality would nevertheless be higher under a binding vote than under a conscience vote, thereby making passage through the parliament easier. End of story.

Of course, as someone who is both a marriage equality advocate and a long-term ALP member, the issue of a potential ‘split’ raises other considerations. I wrote about these in greater length in my post “Hey Australian Labor, it’s time to bind on marriage equality”, last year (https://alastairlawrie.net/2014/07/13/hey-australian-labor-its-time-to-bind-on-marriage-equality/ ), and I do not propose to repeat all of those arguments here.

However, I would make the following brief points:

a) The number of MPs and Senators who end up crossing the floor against a binding vote, and being expelled from the party, is likely to be much smaller than many people think. Despite repeated claims that ‘at least half a dozen Senators’ could cross the floor, we should note that only two caucus members – Mr Chris Hayes MP and Senator Joe Bullock – have so far put their names publicly to this threat (and even they have not repeated these claims recently).

The inflated numbers that appear in stories in the lead-up to National Conference, without names attached, should be seen for what they are – attempts to intimidate or ‘blackmail’ the Party into backing down from making support for LGBTI equality a core Labor value.

b) The people making this threat (publicly or otherwise), were also quite happy for a binding vote to be imposed on progressives who supported equality, from 2004 to 2011, and did not object to Senators Penny Wong and Louise Pratt being forced to vote against their own human rights. To argue now that it is okay to bind progressives, and even members of the LGBTI community, against equality, but that binding religious conservatives to support equality is unacceptable, is hypocrisy at its worst.

c) Any decision by an MP or Senator to cross the floor in contravention of a decision by ALP National Conference, the supreme decision-making body of their chosen political party, and contrary to the broader philosophy of a party and movement founded on collective action and solidarity, would be an act of profound disloyalty and one that I, and the vast majority of ordinary Labor members will never, can never, respect.

The fact that it would be done because the parliamentarian(s) concerned could not abide the idea that couples like Steve and I might have the same rights – under secular law – that they enjoy, simply because of our sexual orientation, makes their prospective choice all the more disreputable.

All of which is to say that I concede there may well be some MPs and Senators who feel compelled to cross the floor on marriage equality, and therefore be expelled from the Australian Labor Party as a result.

But it will be a very small handful who choose to ‘split’ themselves from the party, and they would be doing so on the basis of hypocrisy, and disloyalty, and for a motivation that very closely resembles prejudice. To be frank, the loss of a few such individuals would not be much of a loss at all. And it is even less of a reason not to pursue a binding vote for marriage equality at this year’s ALP National Conference.

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

Posted on December 26, 2013 by Alastair Lawrie

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.

LGBTI Voices Absent from the Chamber

Posted on November 16, 2013 by Alastair Lawrie

This week marked the first sittings of the 44^th Parliament of the Commonwealth of Australia. It also marked the 44^th sittings in which there have been no openly lesbian, gay, bisexual, transgender or intersex (LGBTI) members of the House of Representatives. The achievements of prominent Senators over the past 15 years – most notably former Greens Leader, Bob Brown, and current Leader of the ALP Opposition in the Senate, Penny Wong – mean many people, including some within the LGBTI community, are unaware of this fact.

However, the truth remains that, 38 years after the first Australian state decriminalised homosexuality (South Australia in 1975), and 16 since the last (Tasmania in 1997), no openly LGBTI MP has ever occupied a seat in our federal lower house. This ongoing absence is both an embarrassment, and means Australia is a statistical outlier amongst similar countries.

Above: now retired, Senator Bob Brown, former leader of the Greens.

The United Kingdom has a long, and mostly proud, history of ‘out’ House of Commons MPs. Leaving aside the ‘outing’ of Labour’s Maureen Colquhoun in 1976, fellow Labour MP Chris Smith voluntarily came out just a year into his first term, way back in 1984. The first Tory to come out in office – Matthew Parris – did so the same year. In fact, with roughly 20 current openly LGBTI House of Commons Members (there’s so many it’s getting hard to keep up), even adjusting for size Westminster features the equivalent of 4 or 5 openly LGBTI Australian House of Reps MPs.

New Zealand is similarly a long way ahead of Australia. Like the UK, our Trans-Tasman cousins had a female MP who was ‘outed’ whilst in office (Marilyn Waring from the Nationals, in 1976), with the first MP to publicly come out being Labour’s Chris Carter, shortly after his election twenty years ago. New Zealand even had the world’s first openly transsexual Member of Parliament, Georgina Beyer, before the turn of the last millennium. And, despite having a national list as part of their electoral system, these (and several other openly LGBTI) MPs represented single-member geographic electorates.

Meanwhile, the Canadian history of openly LGBTI lower house MPs has already reached a quarter century, following Svend Robinson’s pubic declaration in 1988. Even the United States Congress has featured openly LGBTI members in their House of Representatives; after Democrat Gerry Studds was outed in 1983, fellow Democrat Barney Frank came out voluntarily in 1987. Heck, the first Republican Members of Congress to either be outed (Steve Gunderson in 1994) or come out voluntarily (Jim Koelbe in 1996) happened almost two decades ago.

So, what has gone wrong in the Australian political system such that, despite having six openly LGBTI Senators or Senators-elect (in addition to Brown and Wong, there’s Democrat Brian Greig, Labor’s Louise Pratt, Liberal Dean Smith and newly-elected Green Janet Rice), not one openly lesbian, gay, bisexual, transgender of intersex MP has ever won a seat in the House of Reps? How is it that Liberal Kevin Ekendahl, contesting the seat of Melbourne Ports in September 2013, appears to be the candidate to come closest – and even he fell more than 3.5% short?

The first possible explanation is that the party machines, in particular of the Coalition and the ALP, have actively operated to prevent LGBTI politicians from rising to the top. Given Australia’s incredibly strong two-party system (much stronger than the UK, New Zealand or Canada), it’s plausible that the increasingly powerful religious/conservative wing of the Liberal and National parties, and the virulently homophobic SDA, led by Joe De Bruyn inside the ALP, have each stopped the emergence of LGBTI politicians in Australia.

Except they haven’t been completely successful – 3 of the 6 openly LGBTI Senators have come from major parties (although none yet from the Nationals). And it ignores the Senate’s position as a quasi-‘insiders club’, where the majority of people elected have themselves emerged from, or at least have the support of, the party hierarchy. Which means that, even if discrimination within the party machine offers some of the explanation, there must be more to it.

A second possible explanation is that our political parties, operating in a system of single-member electorates with compulsory voting and compulsory preferential voting, have taken conscious decisions to find candidates who do not risk alienating any specific part of the electorate, and therefore have ruled out pre-selecting openly LGBTI candidates; or have nominated them to the multi-member Senate instead. Especially in marginal suburban or regional electorates, even a small backlash from voters motivated by homophobia (or who could be made to feel so through an exploitative campaign by opponents) could arguably be the difference between success or footnote.

At least historically, that could have been a somewhat rational, albeit craven, view from inside our major parties. But over time, with the growing acceptance of LGBTI people throughout Australian society, that perspective should have become irrelevant. And, once again, it cannot offer a full explanation, because, even accounting for different electoral systems in other countries, LGBTI candidates have had to counter, and survive, explicitly homophobic campaigns against them elsewhere. That could, and should, have happened here too.

A third possible explanation is that LGBTI people themselves have ‘self-selected’ out of becoming members of the House of Reps. There are two main ways in which this could have happened. First, if LGBTI advocates and achievers, becoming disgruntled by a (real or perceived) lack of progress on equality inside the major parties, chose instead to focus their energies on minor parties like the Democrats or, later, Greens, then they have largely ruled themselves out of being viable candidates for the House of Reps. The fact that 3 of the 6 openly LGBTI Senators to date have come from these smaller parties lends some weight to this hypothesis.

The other way in which an LGBTI person might rule themselves out is that, having progressed within the major parties and been in a position to challenge for pre-selection, they instead chose not to expose themselves to public scrutiny of their sexual orientation, gender identity or intersex status, or the possibility of outright homophobia. It’s been reported before that this is one reason why Justice Michael Kirby chose the law instead of politics (as an aside, imagine the achievements of Kirby as an activist Attorney-General?). It’s possible this fear continues to be a factor today. And, given the sexism and misogyny that is still directed at our female politicians, who’s to say they’re being irrational?

Above: Senator the Hon Penny Wong, currently Leader of the ALP Opposition in the Senate, with her family. Unfortunately, as a Senator she can no longer be promoted unless or until she moves to the House of Representatives.

Last month, Bill Shorten made addressing this issue, through the introduction of LGBTI affirmative action rules for ALP candidates, one of his policy planks in the contest for Labor Leader. The proposal, oft described as a quota, drew condemnation from a diverse range of people, including Andrew Bolt and Crikey’s Guy Rundle. Disappointingly, the debate over his solution (which, for the record, I think is worthy of consideration) ignored the fact that Shorten was talking about a real problem – that LGBTI people continue to be excluded from Australia’s House of Government, long after they have stormed the barricades in comparable nations.

It’s important this problem is addressed, not because a Parliament must automatically reflect the demographic make-up of the people it represents, but because, at a time when the rights of LGBTI people continue to be a matter of major public debate (see: marriage equality), we should at least be at the table; or on a green chair or two, anyway. But above all, removing the barriers which have, in the past, operated to prevent openly LGBTI people being elected to the House of Representatives, means clearing the way to ensure that the best possible candidates are put before the Australian people, irrespective of their sexual orientation, gender identity or intersex status. That’s something we all deserve.

**********

UPDATE 7 JANUARY 2016:

On Saturday 5 December 2015, Trent Zimmerman became the first out gay man to be elected to the House of Representatives, in the North Sydney by-election created by the resignation of former Treasurer Joe Hockey.

A Liberal, Mr Zimmerman will be the first out member of the LGBTI community to serve in the lower house of our federal parliament when he formally takes his seat on Tuesday 2 February 2016.

While his historic victory was a long time coming, there is some hope that the 2016 Federal Election may even see other out LGBTI representatives elected to join him. The best chance at this stage appears to be gay army major Pat O’Neill, standing for Labor in the marginal seat of Brisbane.

Other candidates with admittedly longer odds include Carl Katter (ALP) and Jason Ball (Greens) in Higgins which is currently held by Liberal Kelly O’Dwyer (they both had much stronger chances before Malcolm Turnbull replaced the bigoted Tony Abbott as Prime Minister), and Labor’s Sophie Ismail who is running against Green Adam Bandt in Melbourne.

Of course, even if Mr O’Neill succeeds, two MPs out of a chamber of 150 do not a landslide make. LGBTI voices will still be under-represented when the issue of marriage equality is debated (yet again) next term, as well as other issues of importance to the LGBTI community.

And Australia remains well behind in terms of LGBTI representation, both in comparison to similar countries elsewhere, and when we remember the fact that there has still not been an out transgender or intersex member in either house. Despite Mr Zimmerman’s victory, there is still a very long way to go.

Liberal Trent Zimmerman became the first out LGBTI person elected to the House of Representatives on 5 December 2015 [image source: The Weekly Times].

Federal LGBTI Anti-Discrimination Protections, At Last

Posted on June 30, 2013 by Alastair Lawrie

This week, there was a major legal development which will have a direct and lasting impact on the lives of all lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. No, I am not talking about the US Supreme Court decisions overturning the Defense of Marriage Act, and Prop 8 in California.

Welcome as those decisions are, they will not directly impact Australians, outside of those people who are in bi-national relationships with US citizens (of course, the SCOTUS decision could have significant indirect impact in terms of confirming the global momentum towards marriage equality and heightening the embarrassment we feel that Australia has not adopted this reform).

The major achievement which I am referring to is the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. 38 years after the passage of the Racial Discrimination Act, three decades after the Sex Discrimination Act, two decades since Disability was protected, and nine years since Age was covered, we finally have federal anti-discrimination legislation of our own.

Five days later and I am still smiling about this. And I am still pleased that the removal of exceptions for religious organisations in the provision of aged care services was included, despite the formal Opposition of the Liberal and National Parties. This is incredibly important, not just in terms of protecting vulnerable older LGBTI Australians as they enter aged care facilities, but also in terms of its precedent value – contrary to the public statements of Shadow Attorney-General Senator George Brandis, freedom of religion should not trump the right of LGBTI Australians not to be discriminated against.

Hopefully, the removal of religious exceptions – outside of who can be a member of a congregation, how religious ceremonies are conducted and who is appointed as ministers of religion – will ultimately be delivered.

In the meantime, it is very important that we remember and pay tribute to those LGBTI activists who have helped to make this happen, as well as the politicians who have assisted to achieve this historic reform.

In terms of activists, I would particularly like to mention Anna Brown of the Victorian Gay & Lesbian Rights Lobby, long-term activist Corey Irlam and NSW Gay & Lesbian Rights Lobby policy officer Jed Horner, who were all on the ground in Canberra in the critical final weeks, as people who the community should thank. I think we should also congratulate people like Sally Goldner of Transgender Victoria (and likely several others who I am not aware of) for their success in ensuring an inclusive definition of trans issues in the Bill.

Above all, it was an amazing effort by Gina Wilson and Morgan Carpenter of OII Australia for them not only to raise public consciousness of the needs of intersex Australians, but also for achieving their inclusion as a specific protected attribute in the SDA Bill, the first time intersex people have been explicitly protected at federal level anywhere in the world.

Unfortunately, given the long and winding road which eventually delivered federal LGBTI anti-discrimination protections in Australia it is next to impossible to note all of those who put in the ground work which led up to this year’s Bill, but thank you nonetheless.

In terms of political support, I think it is fair to say that the legislation could not have been delivered without the hard work of Attorney-General Mark Dreyfus, who had oversight of the Bill, as well as the more ‘behind-the-scenes’ support of the ALP’s two queer Senators, Penny Wong and Louise Pratt. And I genuinely believe the removal of the religious aged care service provision exception would not have happened without the efforts of Minister for Mental Health & Ageing Mark Butler. Underneath all of this work, Rainbow Labor played a key role in ensuring the issue of LGBTI anti-discrimination reform remained on the ALP’s agenda.

In the current Parliament, the Bill obviously would not have progressed without the critical support of the Australian Greens and people like Senator Sarah Hanson-Young (who has portfolio responsibility for LGBTI issues). And the Independent cross-benchers should be thanked for shepherding the Bill through, as well as Liberal Senators Sue Boyce (for supporting) and Dean Smith (for abstaining), for providing moral support for the, as yet unnamed, House of Representatives Liberal MPs who were prepared to abstain to ensure its ultimate passage.

As with LGBTI activists, the long history of this issue means it is difficult to point out all of the MPs who have championed this issue over the years. But I would like to pay special tribute to the gay former Democrats Senator Brian Greig who helped to put this issue on the national legislative agenda through his private member’s bill.

Anyway, that is a not-at-all comprehensive list of people who have helped to make the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 a reality. Apologies to those people omitted – please accept that it was not deliberate. This might seem to some like an indulgent blog post, but thanking those people who make our successes happen is not something which our community has traditionally been very good at, and this is my small attempt to redress a little bit of that. Hopefully those people, named and unnamed, know the incredible difference they have made to current and future generations of LGBTI Australians.

A Tale of Two Speeches

Posted on September 19, 2012 by Alastair Lawrie

At some point today, Wednesday 19 September 2012, both the House of Representatives and the Senate will vote against legislation which would provide for marriage equality in Australia. The vote in the Senate will at least be close – the House of Representatives less so. This will be an incredibly devastating result for LGBTI Australians, and indeed all people who believe in a progressive and inclusive society, because it means that at least on a federal level, marriage equality will not happen for several years and quite possibly not until next decade.

Most of the words which could be written on this topic have already been, and much more eloquently than I could possibly write here. That is why I have instead chosen to reproduce two speeches here in full, taken from the Marriage Equality debate in the Senate on Monday. One is by the amazing Senator Louse Pratt, speaking in support of the Bill in the same articulate and passionate way that she has always spoken in favour of equality. The other is by Senator Ron Boswell, speaking against the Bill in well, the way that one would expect a bigot to speak.

The words of the speeches largely speak for themselves. The difference in the substance of the arguments – indeed the paucity of the arguments against used by Boswell – once again demonstrate why marriage equality is inevitable. The only shame is that it will not happen here and now, that instead we will have to wait. And the basic reason for that is that the Prime Minister, Deputy Prime Minister, Opposition Leader, Leader of the National Party and the majority of our MPs will be voting against equality. Instead, they have chosen to align themselves with ‘Team Boswell’ and not ‘Team Pratt’. We should never let them forget which way they cast their vote today.

Monday 17 September 2012 Senate Hansard

Senator Pratt

(Western Australia) (10:39): Today we are here to debate a bill which will remove the last remaining discrimination against gay and lesbian Australians from our federal law. This legislation, the Marriage Amendment Bill (No. 2) 2012, has been a long time coming. I think it is ironic that this last piece of discrimination to be removed should be the most recently introduced. I, like thousands of other Australians, was hurt and dismayed when the federal parliament back in 2004 took steps to entrench discrimination into our nation’s Marriage Act. I have always worked for fairness and equal treatment for all Australians. That principle is at the core of my commitment to politics, and it is and always will be a touchstone for me.

I would support the removal of discrimination from the Marriage Act whether or not the act as it currently stands discriminated against me personally. But it would be disingenuous of me not to put on record that in this case the act does discriminate against me. I am one of those hundreds of thousands of Australian citizens who know that the laws of our nation hold our capacity for love and for commitment to be lesser because of the gender of our partner, one of the hundreds of thousands of Australian citizens who know that the laws of our nation say we are less deserving of rights, of respect and of recognition. And we know that those ideas are not true, and that the laws that reinforce them are not right. So this debate has a personal impact for me, in addition to the commitment I have always felt to end legal discrimination against any Australian. I have grown weary over the years of making that case over and over again that, yes, I am a person like everyone else and, yes, I deserve the same treatment under the law as everyone else. But I must say I have been strengthened, over and over, by the growing support in the Australian community to end discrimination once and for all. We can see in the history of this debate that about 38 per cent support for marriage equality in 2004 grew to more than 65 per cent of the Australian community today. What is more, more than 75 per cent of Australians believe that marriage equality in this nation is inevitable. And that is hardly surprising. The gradual reform of laws at a state, territory and federal level throughout recent decades has been accompanied by a growing realisation in our community that being gay, lesbian, trans or intersex is not something to be ashamed of, or something to be hidden.

As someone who has seen the laws that denied my rights fall, one by one, in my lifetime, as someone who came of age in an Australia where being who I am was, if not universally accepted, at least no longer a shameful secret and a source of fear, I want to put on record today how incredibly grateful I am to those men and women who went before us, those men and women who were brave enough to be open about their life and open about their love in a time when doing so put them at real risk of danger, who fought for our rights regardless of what it cost them, both personally and, for many, professionally. Without them, we would not be debating this bill today. Without them, I would not be here in this parliament at all. And without them, it would not now be the norm, rather than the exception, for gays and lesbians to live openly, to be accepted by their families, their workmates and their communities. Because of that openness, because of that acceptance, for many Australians today the question of marriage equality is not an abstract one—it is about equal rights for their daughter, or their brother, or their dad or their workmates, their teammates, their friends. And if there is one thing about the Australian character that we have always been able to rely on, it is about the commitment of Australians to a fair go for the people around them.

Support for marriage equality is, in my view, about that fair go. But, more importantly, it is about support for marriage itself—recognition of the importance of lasting, committed, loving relationships and the public recognition and display of that commitment. Historically, gay, lesbian and transgender people have been denied the opportunity to make that commitment in a public ceremony recognised by the laws of our nation in the community. I think it is one of the bitterest ironies of this debate that, historically, gay people have been stigmatised as promiscuous and immoral while being denied by the law the right to demonstrate the importance and consistency of their relationships in the way that any other Australian can. Think about that. If marriage is important to our society, if mutual commitment to a shared life is important and if it is valuable in and of itself—and I think it is—and for the strength it lends our community then we should be encouraged by the desire of so many non-heterosexual couples to enter into that lifelong bond.

The simple fact is that thousands of lesbian and gay couples are married here and abroad, and I take issue with Senator Brandis when he says this bill is in breach of custom. Take a look at Australia today. Take a look at the customs of Australia today. There are thousands of lesbian and gay couples who are married, in marriages like anybody else’s. They have the same characteristics as any other, bar the official recognition of the law of our country.

I understand that some senators may be concerned, as some who made submissions to the Senate Legal and Constitutional Affairs Legislation Committee are concerned, that the removal of discrimination in the Marriage Act would force religious celebrants who feel same-sex marriage is against the principle of their religions to nonetheless preside over such marriages. But you only need to look at the facts of the Marriage Act today. The Marriage Act contains provisions that clearly and unequivocally protect ministers of religion from any obligation to conduct marriages that they believe do not accord with their religious beliefs.

So I will be voting for this bill, and I hope that all my Labor colleagues will be voting for this bill. I know the majority are. I believe that this bill fits with a sensible reform agenda and with the passion for fairness and equality that our party has always prized. I hope, too, that opposition senators on the other side of this chamber will be voting for this bill because they support the importance of marriage in our society. I believe that this bill fits with the Liberal Party’s stated commitment to the rights and freedoms of equal opportunity for all Australians, and I remind National Party senators that a great many lesbian and gay Australians live in rural and regional Australia. They are your constituents too, and I ask you to recognise their rights.

I believe that this bill, as the Legal and Constitutional Affairs Legislation Committee recommended, should be the subject of a conscience vote for all federal senators and members. This in in fact consistent with the way the Marriage Act has been treated in the past. Australians believe that coalition senators and members should have a conscience vote on this question. This is not an issue that should divide left and right. It is not a conservative-versus-progressive issue. It is not a left-wing issue. It is not a progressive issue.

It is about our recognition of the importance—to individuals and our community—of people making together a mutual commitment to a shared life. It is about the importance of marriage in our society—the importance of marriage not to the few but to the broad breadth and depth of the Australia community. If we want marriage to remain an important institution in Australia — and I certainly do — then we must make this change.

I believe this bill is good policy. It is in line with principles of equality and in line with today’s community expectations. I would support this bill, as many in this chamber and in the other place support it and as many in the community support it, if it did not affect me. But, this is a bill that personally affects me, because marriage discrimination affects same-sex couples and also affects people with intersex and transgender partners. I am sure many of you do not know that under the current law we see married couples, with children, forced to divorce against their will when one partner realises they are transgender in order to have their gender legally recognised. It is a disgrace that those in functional families with children are required to divorce so that someone can have their gender recognised. Under the current law, there are also Australians who have the legal right to marry no-one because they are legally and by biological fact intersex — that is, they are both male and female — irrespective of how they identify. The discrimination in the Marriage Act directly affects me, as well as thousands and thousands of other lesbian, gay, bisexual, transgender and intersex Australians. But it also directly affects many, many more Australians than those because legal discrimination against gay and lesbian Australians hurts not just us but our parents, our children, our brothers and sisters, our friends. It hurts everyone who loves us, just because of who we love.

So in closing my remarks in this debate, I ask senators in this chamber to remember, when they are deciding how to vote, we exist, we already exist, our relationships exist, our children exist, our families exist, our marriages exist and our love exists. All we ask is that you stop pretending that we don’t. Stop pretending that our relationships are not as real as yours, our love not as true, our children not as cherished, our families not as precious—because they are. Removing this last vestige of legal discrimination against gay, lesbian, bisexual, transgender and intersex Australians from federal law now has the support of the majority of the Australian community. It is my sincere hope that it also has the support of the majority of senators in this place.

Senator Boswell

(Queensland) (11:54): Madam Acting Deputy President Crossin, I understand we are debating your bill today. I find it a very serious debate. In fact, to me it is one of the most serious debates that we have ever had to face in this parliament, because it will fundamentally affect the way Australia reacts as a society. In my party, one of the basic philosophies is that the family is the basic unit of society and without a family you do not have a society. I cannot imagine a more severe attack on the family than undermining marriage. It is what the whole of our society is based on. It is what the whole of society over centuries—probably from the start of man—has been based on: a man and a woman getting together to procreate children and for those children to stay together under the care of a mother and a father. Without that, what do you have? What is society? That all stands before us. Fortunately, the Marriage Amendment Bill (No. 2) 2012 is not going to get through, but I have been around long enough to know that this is only the first attempt.

But what I want to say to you, Madam Acting Deputy President, is: yes, in the inner city suburbs of West End, South Brisbane and Redfern, there might be a bit of support for this, but there is certainly no support for it out in the western suburbs among the blue-collar workers, where the families are strong. Among the different communities, whether they be Catholic, Muslim or Jewish, it is an anathema. It is an anathema with my party. Senator Bishop said that he has not been lobbied very much. I can tell you, Madam Acting Deputy President, that I have not been lobbied at all except to say to me, ‘You stand up strongly for the basic unit of society, which is marriage and the family.’

I believe we now stand at the brink. We have to make a decision. Do we as a society turn away from everything we know and everything that our society is based on—the ideal that the family has been based on for thousands of years—or do we go the other way? Do we say, ‘Near enough is good enough, because it does not really hurt anyone, it does not cost anything and people want to do it; why not?’ and allow gay marriage and just give up on the ideal that the family is the basic unit of society and it gets there through marriage? We know from experience that the whole of the family—a marriage between a man and a woman—allows children to live in a safe, protected environment where they are allowed to grow into adults and pass strong values on to their children. The family is a continuum. We know this from experience, and therefore we continue with that ideal and look to uphold it.

I believe people have not thought this through. I think people in Australia do not give a lot of thought to these important issues, and we as members of parliament have to. From a distance, the issue of gay marriage looks a lot like other issues for Australian voters. From the outside it looks like it does not harm anyone, does not affect any individual who does not engage in it and does not seem to harbour any cost to the taxpayer or any other organisations. It seems relatively harmless—a relaxation of laws and conventions. If it does not hurt me and it does not hurt them, who does it hurt? It hurts society—that is who it hurts—and people have not thought it through.

What happens when the conventions are relaxed? What happens after the conventions have been removed? Marriage is based on a man and a woman, for the reason of having children. Two men and two women cannot conceive without some outside assistance. Marriage is not just a convention or a mere formality; it is a mechanism that was created by society to bring two sexes together and create a foundation of moral, social and legal protection and stability. Without this foundation, we are risking the lot. Like all things that have a foundation, society has a foundation. What is it based on? What is society based on? A man and a woman getting together, having children and then, in a broader sphere, an outer family of cousins, uncles and aunties, all providing support for the family, and that family fighting like crazy to make sure their kids get a good way of living, a good education and sometimes even the parents backing them into a home—people standing up for their family. The family is what people give their children. They send them to expensive schools and make great sacrifices for them because they believe in the family.

People think, ‘How does it affect me—a man marrying another man?’ If it is made legal they think it will not have an impact on their lives. But they have not considered the real harm that homosexual marriage can bring about, and there are three big harms in legalising homosexual marriage. It abolishes a child’s birthright to have both a mother and a father. Marriage includes the right to start a family. Under article 16 of the Universal Declaration of Human Rights, the right to marry comes with the right to start a family. If two men are legally able to marry, they obtain the absolute right to have a child via surrogacy. After gay marriage is legalised, a child can henceforth be brought into the world without ever having the right to a mother and father. Sometimes this happens inadvertently—through desertion or death—but it is not something we plan for; it is not something we want.

Same-sex marriage says that a mother or a father does not matter to a child—and it does. Two mothers or two fathers cannot raise a child properly. Who takes a boy to football? Who tells him what is right from wrong? What does he do—go along with the two mums? How does he go camping and fishing? Yes, there might be some attempt by one of the mothers to fill in as a father figure but it will not work. It is defying nature. And what about a young girl changing from a teenager into a young woman? Is it fair to say to her, ‘You don’t have a mother; your mother can’t take you shopping’ or to not be able to help her understand how her body is changing? What are we trying to do here? Why are we trying to defy what has been the right thing for hundreds of thousands of years? What suddenly gives us the inspiration to think that we can have gay marriage and it will not affect anyone?

I say to the people who very narrowly think this through or who do not think it through: it is more than saying, ‘It doesn’t hurt me; it doesn’t cost anything.’ It is a lot more than that. Once you have gay marriage in law, you have normalised the law, you have normalised homosexual marriage in law, which forces the normalisation of homosexual behaviour in the wider culture—

Senator Hanson-Young interjecting—

Senator BOSWELL: I will not be drawn in, Senator—especially in the school curriculum. I ask the people of the Western Suburbs: if you have gay marriage and it is legal, how can a teacher discriminate between normal marriage and gay marriage? He has to explain both as part of the curriculum. How can a teacher explain one part of the law but not the other?

So I ask these people who think it does not hurt me: do they want their children to be taught about gay marriage?

Senator Hanson-Young: Why not?

Senator BOSWELL: That is the question—why not? You do not find it objectionable from your side of politics. My side of politics finds it abhorrent and does not want any part of it.

But that is what we have to face up to, because these things are like a salami slice. You start off thinking, ‘It doesn’t hurt anyone.’ Then: ‘Oh, little Freddy’s got to go listen to why homosexual marriage has nothing wrong with it. Why is nothing wrong with it? Because it’s legal. This parliament has made it legal.’ I say to the people: do you want that for your children? Some of you will not object. Some will think it is a good thing. Certainly the progressive left will think it is wonderful. But I do not think they will think it wonderful in the western suburbs—the people who rely on the ALP to defend their jobs through the unions. That is why they are there. They are not there to have their kids taught about homosexual marriage versus traditional marriage. That is going to happen the very day this legislation gets in. Once you legalise something, you cannot discriminate against it. It is happening already in America, where homosexual marriage became law and the next thing in Massachusetts was the teachers teaching about homosexual marriage and traditional marriage.

I want to quote from the Australian Education Union. This is what the teachers said: ‘If Australia normalises homosexual marriage, the Australian Education Union’s 2006 gender identity policy would be implemented. Homosexuality, bisexuality, transgenderism and the intersexed need to be normalised. All curricula should be written in non-heterosexist language.’ I suspect the Greens would not see any objection to that but I suspect the Labor people would go into meltdown, because this will be out there. This is what the teachers union have said—and why shouldn’t they? If it is legal, they have to teach it. If it is legal, it has to be taught. You cannot just pick out what you want to teach and not teach.

If homosexual behaviour is legalised then schools will have to treat homosexual behaviour and marriage on the same basis as heterosexual behaviour and marriage. Parents will no longer have the right to object to these teachings. All conscientious objection to both gay marriage and the normalisation of homosexual behaviour in the school curriculum would be abolished. That is what those people who think, ‘It doesn’t hurt me, it doesn’t cost me; if it doesn’t, let’s just let it go through’ are opening up. Let’s think a bit deeper because it is your society, your Australia that you are playing with.

I ask people, particularly from the Labor Party—and I admire the people who have had the courage to stand up over there: do you want your children to go into classrooms that give equal weight to heterosexuals and homosexuals? I do not think many of them do. There will be a few who support the Greens and think it is wonderful, but they are hugely in the minority. John Howard, whose views I admire and respect, said last year:

Changing the definition of marriage, which has lasted for time immemorial, is not an exercise in human rights and equality; it is an exercise in deauthorising the Judaeo-Christian influence in our society, and anybody who pretends otherwise is deluding themselves.

I agree with him. We are told there will be certain legislation that will respect churches and that, if they do not want to perform certain marriages, they will be excluded, but it does not take long for the antidiscrimination committee, instrumentalities, the Greens and GetUp! to start to wage a campaign.

If business or the churches object to hosting homosexual marriage or to blessing them, they will be hit. They will put up a defence, but it will only last for a certain time. They will be crushed by the anti-discrimination laws. We have already seen it happen in countries such as Denmark. The churches will have no choice but to facilitate homosexual marriage. We might push it out three years, four years or five years, but it will happen in the end. We have seen it happen with the abortion laws. You cannot walk away from them. You have to offer it or if you do not offer it then you have to find someone who will do the job. The European Court of Human Rights has ruled that any church situated in a member state where same-sex marriage is legal must marry same-sex couples or be found guilty of discrimination. It will happen here.

Marriage is a social institution with a biological foundation. All society does with marriage is to reinforce this biological fact, to keep men with their mate and then help raise their children. Society merely recognises that marriage is the most important relationship in nature and works to reinforce it. It has no right to reinvent marriage. Politicians have no right to redefine marriage, only to reinforce the biological purpose of marriage. I recall when there was discrimination—when there was huge discrimination—that I had a phone call from a certain minister who said, ‘We have just had a request for a gay doctor to bring his gay partner in and practice in a certain country community. We thought you would object, that you were the person most likely to object. If you let it go, it will go through.’ I said, ‘I could not possibly object to that, that would be discrimination.’ I think it was in 2008 that Warren Entsch brought in, or agitated through the party, that all forms of discrimination be removed. There is absolutely no discrimination against gay people other than the discrimination between heterosexual and same-sex marriage. Frank Brennan, the former chair of the National Human Rights Consultation Committee, said:

I think we can ensure non-discrimination against same-sex couples while at the same time maintaining a commitment to children of future generations being born of and being reared by a father and a mother.

I want to talk about commitment now. This was a commitment given by both leaders before the last election: ‘I won’t have gay marriage’. Both leaders said they would not condone gay marriage. Tony Abbott has stuck to his word. He knows how important it is to many of those people out there—not only conservative people but also family people who believe in the family. They want to go fishing, they want to have a few beers and they do not want a carbon tax. They are in the Labor Party because they think the Labor Party will protect them in their job. (Time expired)

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

Tag Archives: Louise Pratt

Increasing LGBTI Representation

Do you feel proud, Malcolm?

4 More Arguments Against an ALP Binding Vote on Marriage Equality… And Why They’re Wrong, Too

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

LGBTI Voices Absent from the Chamber

Federal LGBTI Anti-Discrimination Protections, At Last

A Tale of Two Speeches