An Incomplete History of Marriage Equality in Wollongong

Wollongong, a regional city in NSW, is home to around 200,000 people, or less than 1% of the Australian population. However, despite its small size, Wollongong has played a significant role in the history of marriage equality in Australia. That includes political trailblazers in support of, as well as staunch advocates against, change, plus influential grass-roots community campaigners.

This article seeks to give recognition to those involved in the long and arduous struggle for marriage equality who called Wollongong home. And yet, for at least two reasons that will explained in detail later, this history can only ever be an incomplete one – deliberately leaving space for other stories, and voices, to be heard on this subject.

Political trailblazer #1: Michael Organ

The first political trailblazer was an MP who served less than two years in office: the former Greens Member for Cunningham, Michael Organ. Having somewhat unexpectedly won a by-election on 19 October 2002, Mr Organ was responsible for representing constituents in the Wollongong CBD and its Northern suburbs when Prime Minister John Howard first sought to ban same-sex marriage in 2004.

With the Labor Opposition supporting the Liberal/National Government’s amendments to the Marriage Act 1961 (Cth), Organ was the only member of the House of Representatives to speak out against the prohibition on same-sex marriage. In fact, as the only MP to oppose the ban, there was no formal division on the Marriage Amendment Bill 2004 when it was debated on 24 June,[1] given calling for a division requires a minimum of two members. Nevertheless, Organ made his passionate views against the Bill known on the floor of the chamber:[2]

The Marriage Amendment Bill 2004 is a disgrace. It is quite clearly discriminatory. It discriminates against those 20,000 couples in Australia that the ABS has recently told us want to be married, who are living as married couples and who are not heterosexual – they are part of the lesbian, gay and transgender community.

This is 2004 we are talking about. The government seems to be living in the fifties and seems to deny everything that has happened in regard to so-called gay liberation and rights for people of other sexuality. The government has its head in the sand on this matter.

In this day and age in Australia … there are gay and lesbian couples living in loving relationships as married couples. We cannot deny this. It is not going to change. It is part of our society and we have to embrace it. It is disgraceful for the government to come into this place – and for the opposition to support them – and to blatantly discriminate against those people.

It is a sad day for this parliament to be introducing such discriminatory legislation.

… 

We have heard the Prime Minister come into this place and say, ‘I’m not going to discriminate against anyone based on their sexuality,’ yet here we have a blatant example of the government and the opposition supporting discrimination against ordinary individual Australians based on their sexuality. This simply cannot be condoned.

Thirteen years before the same-sex marriage postal survey, Organ was foreshadowing the arguments that would ultimately lead to a majority of Australians supporting marriage equality: that as well as being an issue of fundamental equality before the law, it was essentially about recognising the equal love between two people irrespective of sexual orientation and gender identity.

Organ had also been the only House of Representatives MP to speak against the Howard Government’s first attempt to ban same-sex marriage, earlier that month, legislation which did not progress because the Labor Opposition would not support provisions against overseas same-sex adoption. On 17 June 2004, he stated:[3]

The Greens do not believe that allowing members of the LGBTI community to marry fundamentally undermines marriage. Indeed, such a desire can surely only strengthen it. If two people wish to make a public declaration of their love and longterm commitment, then their gender is irrelevant. We should remember that we are dealing here with the emotions, feelings and relationships of ordinary Australians.

Interestingly, one of the examples of legal discrimination against same-sex couples cited by Organ in that speech was the Howard Government’s refusal to subsidise the expenses of the former Member for Throsby, Colin Hollis’, long-term same-sex partner when Hollis represented the Australian Parliament at the United Nations, despite mixed-sex partners receiving this entitlement without question:[4]

Hollis took his case to the Human Rights and Equal Opportunity Commission in 2001 but lost on the strict definition of ‘spouse’ in the legislation. Again, the government fought Hollis all the way. This blatant discrimination is an affront to fair-minded people everywhere.

During both of the Howard Government’s legislative attempts to prohibit same-sex marriage, the Member for Cunningham was the only voice in the lower house calling for full equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) couples. Consequently, the citizens of the Wollongong CBD and Northern suburbs were the only people in the country whose local member supported their right to determine for themselves who they should marry.

This does not mean the local community fully supported his decision to take such a stand. Nationally, a June 2004 survey conducted by Newspoll found only 38% of respondents were in favour of same-sex marriage, while 44% were against.[5]

As Organ himself conceded to Parliament, local views on the issue were also divided: [6]

I have certainly been made aware of the homophobia that has existed in the community in my electorate of Cunningham. Vile letters to the editor on this issue have appeared in the Illawarra Mercury since the Prime Minister raised the issue last year, and recently in response to my same-sex relationships bill – though I should point out to the House that the letters in support of gay marriage and gay rights have far outweighed the homophobic.

The reference to his ‘same-sex relationships bill’ actually represents another first for the Commonwealth Parliament: Organ’s Same Sex Relationships (Enduring Equality) Bill 2004 was the first Bill introduced that sought to permit same-sex marriage in Australia, out of a total of 23 such Bills introduced between 2004 and 2017.[7] Sub-clause 5(2) of his Bill provided:

5 Discrimination on the basis of sexuality to be unlawful

(2) To avoid doubt this Act makes any distinction, exclusion, restriction or preference based on a person’s sexuality as it relates to;

(a) Marriage;

(b) Adoption;

(c) Superannuation;

(d) Employment Entitlements;

(e) Access to reproductive or health services;

(f) The lawful age of consent to sexual activity;

unlawful.

While the Bill was never debated in Parliament, and he went on to lose the seat of Cunningham at the election on 9 October 2004, in his short time in office Michael Organ was undeniably a trailblazer on the issue of marriage equality – a torch that was picked up six years later by a member of a different political party, representing the other electorate covering parts of the Wollongong community.

Political trailblazer #2: Stephen Jones

Stephen Jones was elected in the seat of Throsby at the federal election on 21 August 2010. Throsby – which was re-named Whitlam at the 2016 election – represents the southern suburbs of the Wollongong Local Government Area (LGA), as well as Shellharbour and parts of Wingecarribee Shire in the Southern Highlands. Less than three months later, Jones first used his position to speak out in favour of marriage equality, telling Parliament that:[8]

[M]arriage is an important institution in our society. It is a special relationship where two people say to each other and to the rest of the world that they agree to be bound together in love, exclusive of all others, for life. I believe it would diminish us all as a society if we were to say that we may exclude gay and lesbian couples from this celebration. That marks them as somehow less worthy or even as biological oddities. I respect the right of religious organisations and others in our community to disagree with this view and to continue to practise in accordance with their beliefs. Indeed, no motion or act of this place can of itself change those beliefs. But it is an entirely different thing to ask of the state to enforce it.

Looking back on his history of engagement on the issue, Mr Jones reiterated that the principles of equally and fairness were motivating factors for his stand:[9]

I was always on side, a supporter of marriage equality, even before I entered parliament. Going into my first election campaign, I was clear that, if there was a Bill, I would vote for it. But as is so often the case, issues can become more salient or important over time. As I thought more about the issue, I realised this was not something that could be ignored, or delayed. This was an issue of fairness, and equality, and I thought Labor should take a stand on it.

In 2020, it can be easy to underestimate how courageous this step was. Jones, a first-term MP, was speaking against not only the platform position of his party – the ALP remained officially opposed to marriage equality until its December 2011 national conference – but also of his then-Prime Minister, Julia Gillard.

In this context, it was inevitable that Jones’ stance would attract criticism – and it did, particularly from some right-wing figures within the Labor Party itself. Within days, Bob Harrison, former Labor MP for the state seat of Kiama, had written to the Illawarra Mercury that ‘Marriage must be defended’:[10]

The Government must fearlessly and without diffidence defend the institution of marriage as involving vows between one man and one woman, while rejecting out of hand illogical and ideologically driven demands of social engineers and politicians who conspire with the Greens for unprincipled preference deals.

This opposition continued in the following year, with then-state Labor MP for Wollongong, Noreen Hay, leading what was described as:[11]

a rebellion against Labor federal counterpart Stephen Jones, winning a key motion in his seat of Throsby which undermines his public stance on same-sex marriage. The humiliating defeat reflects widespread anger among ALP members in Mr Jones’ electorate, who feel they were not consulted about his position on the issue.

Mr Harrison again attacked Jones through the media in early 2012, writing that:[12]

Heterosexual marriage involving one man and one woman, in any case, must be preserved and recognised as a unique institution among all human relationships, predicated on the creation of new life and the preservation of family life Australians have always known. Australian children have a right to know, bond with and share the love and protection of both a mother and a father. No other form of human or social relationship can hold out the promise of this benefit to future generations.

Reflecting on this internal backlash almost a decade later, Jones remains convinced his pro-equality approach was the correct one:[13]

I was copping a whole heap of shit from some people for the stand I was taking. People in the Party who were strongly against it were using it to campaign against me. I had an opponent who was knocking on doors telling people I was supporting same-sex marriage and that was a reason people shouldn’t support me. I was initially a little bit worried about the fall-out, but once you take the first step, and the second – especially on an issue of principle – then you just keep walking towards the outcome you think is the right one. Overall, I guess I did lose a little bit of support in some quarters, but I did what I thought was right.

In fact, despite these prominent local opponents, in February 2012 Jones would go on to introduce the first private members bill to legalise same-sex marriage to come from a major party MP (Labor, Liberal or National Party) – which also meant it was the first marriage equality bill that had a realistic chance of succeeding.

His first reading speech on the Marriage Amendment Bill 2012 had echoes of the earlier parliamentary contributions of Michael Organ in 2004:[14]

I believe that God made us all equal but different-not differently equal. The object of the bill is to remove discrimination and advance equality. It will ensure that when same-sex couples make a voluntary commitment to be together for life, to the exclusion of all others, and they choose to have that relationship solemnised, it will be recognised at law in the same way that my marriage is…

I believe there is a stronger force which guides us in matters like this. It is the right to equality-the human right not to be discriminated against on the grounds of sexuality. Human rights are inalienable rights, recognised and protected by governments, not created by them. They should never be qualified by fear or prejudice.

Debate about Jones’ Bill, both inside and especially outside Parliament, dominated national discussion for the following six months. Ultimately, it became the first same-sex marriage bill to be debated by both chambers of Parliament since Howard’s original ban on same-sex marriage in August 2004. Jones continued to push for equality before the law as the Bill was debated in September 2012, in his summing-up speech:[15]

The case for the bill is simple. It is about equality, it is about recognition of relationships-the validation of those relationships-and it is about saying to people who are often excluded, alienated or discriminated against: ‘You know what? You are okay. What’s more, you are better than okay: your relationship is just as valid as mine is in my marriage to my wife. And if you seek to have that relationship described as a marriage and recognised by the state as a marriage then who are we to stand in your way?’

Unfortunately, at least for supporters of marriage equality, his efforts were not successful, primarily because the Liberal/National Opposition, led by Tony Abbott, would not grant a conscience vote to its members, unlike the Gillard Labor Government. The result: it was comprehensively defeated by 98 votes to 42 votes in the House of Representatives[16] (although Labor MPs did vote in favour by a margin of 38 to 26).[17]

Following this defeat, it would have been understandable had Jones decided to appease his internal critics and instead focus his energies on other matters. Perhaps even more following the defeat of the Rudd Labor Government on 7 September 2013, and consequent relegation to the opposition benches. However, Jones remained steadfast in his support of marriage equality, including his criticisms of the recalcitrance of the then-Abbott Liberal/National Government.

For example, in December 2013, Jones spoke out following the High Court’s decision to invalidate the ACT’s same-sex marriage legislation, and therefore invalidate 31 marriages of same-sex couples:[18]

I believe that on this issue members of this place are lagging behind public opinion. I believe we are different but equal and we should not be differently equal before the laws of this place. I call on members opposite and I call on the government to allow its members to have a conscience vote on this issue when a bill is next brought before us.

Jones also reflected the views of the community, and especially of LGBTI Australians in opposing the proposed plebiscite on same-sex marriage, first put forward by Prime Minister Abbott in August 2015, and adopted by his successor, Malcolm Turnbull. In the February 2016 debate on another unsuccessful marriage Bill,[19] Jones stated:[20]

I am not opposed to referendums, but we do have to wonder why this matter is proposed to be put to a referendum, given that it is our job, as parliamentarians, to vote on matters that are put before us, and we have a matter put before us. We are told that the cost of that referendum is going to be $160million-only for it to have a non-binding outcome…

After his re-election at the July 2016 federal election, and now representing the renamed seat of Whitlam, Jones continued his fight against this unnecessary public vote, in-part because of its detrimental impact on the LGBTI community:[21]

I spoke to them about their very real concerns. I think it would have been an abrogation of my responsibility for me-as I have said, as a privileged, white, heterosexual male-to say, ‘C’mon, we can toughen up; we need not be concerned about these issues,’ and not listen to their concerns and their lived experiences. To a person, they were concerned about the impact of the plebiscite on their children or on young LGBTI people.

If this plebiscite bill gets up, if the vote goes ahead, we will spend the next nine months talking about nothing more than the sexuality of people who choose a different partner to me, and that is not what the Australian people are after. That is not why we were sent here to Canberra.

More simply, he told the Illawarra Mercury “It’s not like these issues are complex, this is something the Parliament should just get on with and deal [with].”[22]

Predictably, Jones strongly criticised the Government’s decision to hold a same-sex marriage postal survey, via the Australian Bureau of Statistics, after their plebiscite bill had been defeated:[23]

The third envelope is going to be the one that is the most expensive of all. That is the envelope that is costing Australians $122million, the envelope which shows how out of touch this Prime Minister and this government really are: the unnecessary and expensive envelope which will have a postal vote on same sex marriage.

As we now know, that postal survey recorded a solid Yes vote nationally, and the Commonwealth Parliament subsequently debated Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – as well as a number of amendments from conservative MPs seeking to undermine it through extensive new ‘religious exceptions’. Jones continued to fight for the principle of full equality, and against these special privileges, in the House of Representatives:[24]

[W]hen you act as a civil celebrant, you’re performing a civil ceremony, not a religious ceremony, and you are exercising a function under our law. It should be that the people who are exercising the function under our law are equally bound by it. There should be no basis in relation to civil celebrants which permits discrimination.

The detailed account of Stephen Jones’ actions in support of same-sex marriage, outlined above, reflects the often complex, sometimes tortuous, unacceptably lengthy process it took Commonwealth Parliament to make marriage equality a reality. Throughout, his support for this reform was steadfast – indeed, there were few better friends to the cause of LGBTI rights, from any political party, during the past decade than the ALP member for Throsby/Whitlam.

Asked to nominate personal highlights of the long fight for marriage equality, Jones spoke, in magnanimous terms, about the day it was finally passed by parliament:[25]

[I]n particular seeing close to 150 people on one side of the chamber, and just a small handful of people opposed (plus a few who ran from the chamber…) It was a genuine moment of unanimity. It was a good thing, for the country’s representatives to come together in that way. As a Labor person, I would have obviously preferred for us to have achieved it earlier as the Government. But as an Australian I was delighted to see it finally happen.

He also raised the positive legacy of marriage equality for Australia:[26]

I felt proud for the country on this issue. That we had actually done something, achieved something. So many issues currently are dominated by intractable conflict – social, economic, environmental issues – that we seem incapable of achieving systemic change. Here was an issue which showed that positive change can still happen, that we can still resolve issues that are contentious.

If that assessment is correct, then the Member for Throsby/Whitlam played a key role in making it happen – something he can forever be proud of, and which again reflects the oversized contribution of the city of Wollongong in the history of marriage equality in Australia.

2017: Wollongong Says Yes in the Same-Sex Marriage Postal Survey

The announcement of the results of the same-sex marriage postal survey, by Australian Statistician David Kalisch on Wednesday 15 November 2017, confirmed that the local Wollongong community strongly supported marriage equality.

While Australia ‘voted’ yes by a margin of 61.6% yes to 38.4% no,[27] both electorates which include parts of the Wollongong LGA voted yes at higher rates than the national average:[28]

  • Cunningham: 65.7% yes versus 34.3% no, and
  • Whitlam: 62.3% yes versus 37.7% no.

These results were also significantly higher than the NSW average as a whole: 57.8% yes against 42.2% no,[29] an impressive achievement for a regional city. Indeed, Stephen Jones highlighted this aspect of the postal survey vote in his speech on the Smith Bill:[30]

If you applied the common prejudice that says that regional folk are less progressive than are their city cousins, you’d conclude that the city overwhelmingly voted in favour and the regions overwhelmingly voted against. Well, you’d be wrong. Of the 62 regional seats, only three voted against marriage equality. This confounds those views that regional Australia is somehow less progressive on these sorts of issues and less welcoming of diversity than people in the inner city. Regional electorates like mine have shown themselves to be open places that are willing to embrace same-sex couples.

The high yes vote is even more impressive considering the demography of Wollongong, as reflected in the 2016 Census. One of the factors associated with higher levels of support for marriage equality traditionally has been university education – however, Wollongong reported lower-than-average rates of holding a ‘Bachelor Degree level and above’ (19.9%, compared to 23.4% for NSW and 22.0% nationally).[31]

Even more significantly, Wollongong LGA reported higher rates of religiosity in the 2016 Census than elsewhere, including:[32]

  • 25.6% Catholic, compared to 24.7% (NSW) and 22.6% (Australia)
  • 16.6% Anglican, compared to 15.5% (NSW) and 13.3% (Australia), and
  • 4.3% Eastern Orthodox, compared to 2.5% (NSW) and 2.1% (Australia).

It is tempting to say that, despite this religiosity – and the views of major church leaders – the people of Wollongong voted yes. However, in the postal survey the congregations showed they were in fact ahead of their respective church positions. When asked about this discrepancy, Jones made the following observation:[33]

[T]he paradox is that the Wollongong community is also quite a religious, and multicultural, community and there were obviously some people who were strongly opposed [to marriage equality] too. But many people of faith supported marriage equality as well, even though the church leaders were opposed. To some extent, the congregation were no longer listening to the church leadership on questions of sexual morality, after the church scandals of the 1980s and 90s.

The obvious question is why the Wollongong community as a whole, religious and non-religious folk alike, was so willing to embrace full legal equality for LGBTI relationships. And it is possible that having political trailblazers like Michael Organ and Stephen Jones helped to move the debate forward here more rapidly than in other places.

However, it is far more likely that progress was achieved because of the tireless work of community campaigners, over many years, to persuade their family members, friends, neighbours and wider community that LGBTI relationships were just like any other relationship, and should therefore be entitled to the same legal recognition as any other relationship.

Community Campaigners: Evelyn Gray

Lead marriage equality campaigner at GetUp! during the 2010s, Sally Rugg, has written that:[34]

Every inch of LGBTIQ progress has been fought for, and won, on a foundation of [our] community’s personal stories. We tell stories to connect, to resist, and in the hope that those listening might see their own history reflected in ours.

Some of the most powerful of those stories have come from parents of LGBTI Australians, speaking up for the equal treatment of their children under the law. While nationally that role was filled (more-than-capably) by Shelley Argent, the Australian President of PFLAG (Parents and Friends of Lesbians and Gays), in NSW one of the leading ‘proud mums’ was Wollongong local Evelyn Gray.

Asked in 2020 ‘why marriage equality was so important to [her] personally?’, Ms Gray answered:[35]

My husband and I have two daughters, one gay and one straight. Our story was a very common one – wanting our gay child to have exactly the same rights as her straight sibling. I was incensed when John Howard amended the Marriage Act in 2004 to specifically exclude same-sex couples, and so began my marriage equality journey.

That journey was both lengthy, and incredibly active, including being the admin for the Facebook page ‘Wollongong for Marriage Equality’ (now LGBTI Equality Wollongong)[36] for 8 years and counting, a site she used for publicizing marriage equality rallies, sharing petitions and other calls to action, and for co-ordinating local media requests. Coincidentally, Gray was asked to create the page on a 2011 lobbying trip to Canberra with Shelley Argent and other PFLAG mums.[37]

That trip was one of many activities in lobbying politicians to support change, both locally (Gray recalls emailing and visiting the offices of local MPs Stephen Jones and Cunningham MP Sharon Bird multiple times in 2011 and 2012)[38] and nationally. Indeed, on one trip to Parliament House Gray was told by one Senator that “It’s about time homosexuals stopped playing the victim card and trying to bring down the institution of marriage”.[39]

Gray wasn’t afraid of speaking truth to power either, garnering publicity for her response to a 2016 ‘Valentine’s Day’ social media post from then-Prime Minister Malcolm Turnbull to his wife Lucy:[40]

Congratulations on your happy marriage. I’m very lucky also to have been married for over 40 years. However, my husband and I are saddened that our gay daughter is still waiting for the same right as her sister; the right to marry the love of her life. No plebiscite please – a free vote in Parliament is all it will take!

Like many other marriage equality campaigners, Gray regularly exercised her writing skills, including letters to the editor of the Illawarra Mercury,[41] as well as composing ‘many letters, emails [and] submissions to Federal MPs and Senators re amending [the] Marriage Act, allowing [a] conscience vote, against a plebiscite, telling [a] personal story’, while persuading ‘family and many friends to do the same.’[42] Gray even contributed a chapter to the 2011 essay collection Speak Now: Australian Perspectives on Same-Sex Marriage.[43]

In addition to more traditional lobbying tactics, Gray engaged in more direct, grass-roots action, attending and marching in countless rallies. She recalls the final poster she demonstrated with proclaimed ‘How many more bloody posters do I have to make before my gay daughter can marry?’[44] Gray also marched in five marriage equality floats in the Sydney Gay & Lesbian Mardi Gras Parade between 2013 and 2018, including in 2015 with a poster thanking Sharon Bird for her support.[45]

Her activism continued during the 2017 postal survey, including making and distributing posters which said ‘This small business is big enough to support marriage equality – Vote’, using the Wollongong for Marriage Equality page to drive both enrolment and voting (one post featured her ’90-year old mum proudly holding her survey’)[46], door-knocking, letterboxing, ‘placing stickers around town’, literally flying the rainbow flag from her house and attending the ‘Yes to Marriage Equality’ rally at the University of Wollongong[47].[48]

Evelyn Gray was indefatigable in advocating for her daughter’s right to marry. It is no surprise that, when writing their history of the marriage equality campaign, Australian Marriage Equality (AME) convenor Alex Greenwich and LGBTI historian Shirleene Robinson observed the following:[49]

Evelyn Gray, the mother of two daughters, one straight and one gay, who was one of the movement’s strongest and most dedicated allies…

For her part, Gray remembers many highs, and lows, along the path towards equality. Among the former were being in Prince Alfred Park in Sydney for the announcement of the postal survey results and ‘seeing the joy and relief on the faces of the crowd’ while ‘dancing for joy with another parent activist’, the passage of marriage in Commonwealth Parliament a few weeks later, and working with long-time activists like Shelley Argent and Rodney Croome.[50] Personal lowlights included Tony Abbott denying a conscience vote to Coalition MPs on Stephen Jones’ Marriage Amendment Bill in 2012, causing that legislation to be defeated.[51]

Of course, Gray was only one of many voices in the Wollongong community who pushed for marriage equality over many years. When asked now ‘Why do you think the Wollongong community responded so positively to marriage equality?’ she was quick to nominate a range of people who helped make change happen:[52]

  • ‘Stephen Jones was always very public about his views, advocating for the principles in which he believed, spoke up against hate speech in the community, spoke on local radio using common sense arguments, organised a marriage equality workshop in his electorate to teach how to effectively advocate for marriage equality.
  • ‘Sharon Bird, although initially sat on the fence on marriage equality, declared her support after gauging her constituents’ views on same-sex marriage’ and
  • ‘Strong campaigning from: Illawarra Rainbow Labor, Paul Scully, Labor councillors, Young Labor, The Greens, and Simon Zulian.’

Gray also praised the role of the Illawarra Mercury in ‘featur[ing] personal stories of local gay couples and families, publish[ing] letters from supportive readers, survey[ing] Wollongong Council election candidates on their stance on the postal survey.’[53]

Stephen Jones was similarly keen to highlight local voices in favour of marriage equality throughout the campaign. After introducing his Marriage Amendment Bill 2012, he spoke about a Wollongong couple denied the right to marry:[54]

Peter [Bearman] is a diesel mechanic and James [Pollack] is a university student. It is their fervent hope and the hope of their mother, whom I met last weekend, that one day they will be able to get married here in Australia. It is with that story in mind that I moved in the House today a private member’s bill that would amend the Marriage Act 1961 to permit couples like Peter and James to get married here in Australia.[55]

And in his speech on the Smith Bill five years later, Jones acknowledged:[56]

In my own region, there was Illawarra Rainbow Labor. I want to recognise Caitlin Roodenrijs and my dear friend Simon Zulian, who dedicated his tireless campaign work to his deceased partner, Kane-the love of his life who he never had the opportunity to marry. I salute you, Simon, for your tremendous work.

The names cited by Evelyn Gray and Stephen Jones are just some of the locals who contributed to the fight for marriage equality from the time it was banned by the Howard Liberal/National Government until it was finally legalised in December 2017.

This history is and will forever be incomplete. Not just because of space constraints – even if this were a book, rather than a 10,000-word article, it would not be possible to do justice to all of the community campaigners on this issue.

It is also because of the nature of the marriage equality movement itself. In the words of then-AME convenor Rodney Croome:[57]

“Real change takes time. It’s rare that a single conversation will make the difference,” he said.

“It’s an accumulation of conversations and then there will come a point where… the penny will drop.”

But the principles of sharing personal stories and engaging emotionally were still vitally important to the marriage equality campaign, Mr Croome said.

Which means that support for marriage equality in Wollongong was driven by thousands of people, having tens of thousands of conversations, over many years, until 60,906 people in Cunningham, and 57,562 people in Whitlam,[58] answered the question ‘Should the law be changed to allow same-sex couples to marry?’ with an unequivocal yes in September and October 2017.

Wollongong Opponents: Concetta Fierravanti-Wells

While the preceding sections might paint the picture that the entire Wollongong community supported marriage equality, that is obviously not the case – after all, 31,840 people in Cunningham, and 34,879 people in Whitlam,[59] responded no in that same-sex marriage postal survey.

Chief among the opponents to marriage equality, not just in the Illawarra but also nationally, was Liberal Senator Concetta Fierravanti-Wells. A Wollongong local, Fierravanti-Wells was one of the most vocal figures in Parliament against full equality for LGBTI relationships.

During a 2008 debate on the Same Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill, Senator Fierravanti-Wells spoke out against marriage equality, even though it was not being proposed:[60]

Marriage is a unique institution in our society and it is one that we… should do everything in our power to protect, and ensure that it is supported, encouraged and backed up in every way, shape and form… Marriage is a very important institution not only for the traditional Anglo-Saxon culture in this country but also for so many others in our culturally diverse community. It is the important umbrella institution which helps to nurture children in an environment where they can grow and prosper. Indeed, the traditional form of marriage in my view provides the best form of security in our society… Often people talk about the silent majority in this country. I think that the silent majority in this country would agree about the sanctity of marriage and the sanctity of what is the traditional family.

It was a position Senator Fierravanti-Wells would not deviate from over the following decade, including using colourful, and at times controversial, language against the Senate version of Stephen Jones’ Bill in September 2012:[61]

I doubt that most people who are pushing these amendments are overly religious or even intend on staying in a monogamous relationship, which begs the question: why do they want to get ‘married’? The chattering classes do not want to concede that, by amending the Marriage Act, they are in fact denying the rights of the silent majority who want to uphold the sanctity and true meaning of marriage and who want to keep some tradition going in a world that seems to be forever throwing out the old and bringing in the new.

One must ask: where will this all end? You do not have to look very far to find the answer. There are already legal challenges in Canada and Utah that have been brought forward by polygamists who claim they have a right to polygamous marriage, and polyamorous activists are relentlessly campaigning for legal recognition of their relationships.

It is perhaps unsurprising that the more inflammatory parts of this speech were picked up in local media.[62]Equally predictable is the fact Fierravanti-Wells used the speech to criticise Stephen Jones for introducing his legislation:[63]

Same-sex marriage is a 10th order issue. It galls many in the Illawarra, where I was born and where my electorate office is located, to see their local member for Throsby, Stephen Jones, championing this cause above more pressing issues for his constituents.

As a Minister in the Turnbull Liberal/National Government in 2016 and 2017, Fierravanti-Wells supported holding a plebiscite on same-sex marriage, and when that was defeated, the same-sex marriage postal survey. Indeed, she actively campaigned for a no vote in the ABS’ statistical survey:[64]

“I believe marriage is between a man and a woman; two different genders coming together in one unique union,” Senator Fierravanti-Wells told the Coalition for Marriage launch on Saturday. “This is what it has been for every culture, every ethnicity, every faith, in every corner of the world for thousands and thousands of years. I am so proud to stand with you and millions of my fellow Australians who will be voting ‘no’.”

However, when the nation, NSW and both electorates in the Illawarra voted yes in her own government’s postal survey, Fierravanti-Wells still refused to concede defeat, including this attempt at mathematical sophistry when Senator Smith’s Bill was considered by the Senate:[65]

A conveniently overlooked statistic is that 16 million voters were eligible to participate and of those just 7.8 million returned a ‘yes’ vote on this survey form. This represents 48 per cent of the voting population. This is not the enormous majority that the elites are spinning. Indeed, it is not a majority at all. In fact, 52 per cent of the voting population either voted no or did not vote at all…

As that legislation progressed through detailed consideration by the Senate, Fierravanti-Wells spoke in favour of a wide range of amendments to insert ‘religious freedom’ clauses, including the adoption of separate definitions of marriage in the Marriage Act 1961 (Cth) itself, as well as to allow all civil celebrants to refuse service to LGBTI couples.[66] Each proposal was, thankfully, ultimately defeated.

On the final vote, despite being part of a Government which imposed the postal survey on a community, and especially an LGBTI community, which did not want it, Senator Fierravanti-Wells did not honour the yes vote of the Australian electorate:[67]

For many people of different backgrounds and religions, this will be a very difficult day. This will be a difficult day in Australia. As we talk about respect, I think it’s very important to remember this respect across this divide… I cannot support this bill in its current form for these reasons, because there are many people-like my parents, who came to this country-who just cannot. For them, it’s very difficult, and I think that they deserve our respect as well.

Inevitably, Fierravanti-Wells’ lack of respect for the outcome of the postal survey was the subject of a critical editorial in the Illawarra Mercury:[68]

The 12 senators sitting on the ‘No’ side of the house included Wollongong-based Senator Concetta Fierravanti-Wells. This was despite a resounding Yes vote right across the Illawarra and South Coast. Senator Fierravanti-Wells was sitting alongside Senator Eric Abetz, one of the most passionate and prominent supporters of the ‘No’ campaign… Their votes will be recorded for history and only history and their voters will judge them.

To some extent, Fierravanti-Wells’ actions on this issue are the mirror image of Stephen Jones’ – a passionate, and unrelenting, advocate for her view. The two primary differences being that he was advocating for the equality of all residents of Wollongong, while she campaigned against the rights of a minority, and that her position ended up on the wrong side of history, both nationally and in her community.

Of course, she was not alone in advocating against marriage equality in the Wollongong area. Fierravanti-Wells was joined by key religious leaders, including Bishop Peter Ingham who issued the following statement to be read at all Catholic masses on the weekend of 2 and 3 September 2017 – the start of the postal survey period:[69]

[A]cross the breadth of human cultures and religious faiths, we contend for the truth that our society is best-served by retaining the traditional understanding of marriage as the union of a man and a woman, voluntarily entered into for life, and provides the basis for the creation of a family in which, wherever possible, children can be raised in a loving and stable environment by their own mother and father. In human terms, there is nothing more powerful than the union of a man and a woman, which is the only relationship that can bring about new life. It has no equal.

St Michael’s Anglican Reverend Sandy Grant also made the following ill-informed and frankly prejudiced remarks during the same-sex marriage postal survey:[70]

Mr Grant spoke of a ‘slippery slope’ that could occur when same-sex marriage is legalised. For instance, he believed removing the need for people of the opposite sex to marry could lead to polygamy or under-age marriage. 

“Some Muslims are already pushing this… the legalisation of marriage in Australian [sic] to allow polygamy,” he said.

“This shows the sheer inadequacy of the love is love slogan. Do you think a 30-year-old man should be able to marry a 12-year-old girl if they both consent and say they love each other?”

However, as we saw earlier, despite their concerted efforts – and the higher rates of people identifying as Catholic and Anglican in the Wollongong LGA – local congregations clearly did not follow this instruction, voting yes at a higher rate than both the national and NSW figures.

Evelyn Gray thinks this was in part because ‘they were able to see the distinction between religious and civil marriage’:[71]

I remember bringing up the subject of same-sex marriage about 10 years ago with a very good (religious) friend of mine, whose immediate reaction was to strongly oppose the idea, but changed her mind in about 30 seconds when I explained that it was about civil marriage, not holy matrimony.

Finally, there is one more intervention for the no campaign which warrants particular mention: Wollongong provided arguably the highest profile intervention by a same-sex couple arguing against marriage equality during the postal survey.

On 4 September 2017, local couple Ben Rogers and Mark Poidevin appeared on the ABC’s 7:30 Report to advocate for a no vote.[72] As later reported by ABC News:[73]

Ben said while he respects that other couples might want to wed, he is committed to preserving traditional marriage…

“When I first came out I think one of the consequences was giving up marriage and children and things like that.”

Mark, a committed Catholic, has changed his stance on same-sex marriage since he proposed to Ben five years ago.

“If we make one exception for one community, that being the same-sex couples, where does it stop?” Mark said.

“Do we then see other cultures being allowed to have multiple marriages? Do we see the age of consent being lowered for another group of minorities? That is my concern, of where it would lead.”

It was an unusual contribution to the debate, and the local community was not persuaded by their arguments, but given its prominence their perspective nonetheless deserves to be part of the history of marriage equality in Wollongong, alongside other local opponents like Concetta Fierravanti-Wells and church leaders.

The (Limited) Role of Wollongong Council Pre-Marriage Equality

While MPs and Senators representing the Wollongong area played a leading role in arguments both for and against marriage equality, Wollongong Council itself did not. Unlike a number of Local Governments around Australia, including both Kiama and Shoalhaven Councils,[74] Wollongong Council did not formally endorse marriage equality in the years leading up to the postal survey.[75]

Following the announcement of the postal survey in August 2017, there was a concerted push to have Wollongong Council fly the rainbow flag during the voting period, with a public protest outside council chambers on 21 August:[76]

Among those who attended was Figtree mum Evelyn Gray, who held a placard saying she was ‘waiting to be mother-of-the-bride for my gay daughter”. Ms Gray said her two adult daughters had found “the loves of their lives”, but only one of them was able to marry.

However, with the Council elections scheduled to be held on 9 September 2017, there was no opportunity to hold a meeting before then – and it was not on the agenda for the extraordinary council meeting on 9 October 2017.[77] This meant any motion to raise a rainbow flag in support of the local LGBTI community would not be passed in time for the voting period.

Nevertheless, at the Ordinary Council Meeting on 30 October 2017, Greens Councillor Mithra Cox moved, and Labor Councillor Tania Brown seconded, a motion that:[78]

Council fly a rainbow flag on the flagpole outside Council’s Burelli Street Administration Building until 17 November 2017 as-

  1. Recognition of the diversity of the people in our City and that this diversity is shown in many forms; and
  2. Flying the flag can stand as a symbol of Council’s support for this diversity.

Following what was described as ‘a tense and at times tearful debate’,[79] the motion was passed by 8 votes to 4, with Lord Mayor Gordon Bradbery falling into the latter category[80] (although he nevertheless supported marriage equality overall).[81]

The Positive Legacy of Marriage Equality in Wollongong #1: A Cosmopolitan City

While Wollongong Council did not play a leading role during the marriage equality debate, it has subsequently sought to build on its outcome – in particular, by emphasising the inclusive nature of the local community. In July 2019, the Council unanimously moved a resolution proposed by Councillor Tania Brown that:[82]

Wollongong City Council install a permanent Rainbow Crossing, in a prominent Wollongong foreshore location, to show our ongoing support for the LGBTQIA+ community and reflect Wollongong’s status as an inclusive and welcoming city. Staff to report back on suitable locations via an information note within one month.

The rainbow crossing was developed within a matter of months, and unveiled before the end of 2019:[83]

Acting lord mayor Tania Brown – who led the charge to have the crossing painted earlier this year to counteract homophobia and hate speech – said the new pride symbol, which appeared overnight outside the Novotel Northbeach [on Cliff Parade], would become a popular photo spot at Wollongong’s busiest beach.

However, while the rainbow crossing is a tangible sign of inclusivity post-marriage equality, it is arguably not as important as the outcome of the postal survey itself, in which the Wollongong community showed itself to be a cosmopolitan city, willing to warmly embrace their neighbours irrespective of their sexual orientation and/or gender identity.

That outcome remains one of the positives of the marriage equality movement cited by Stephen Jones:[84]

Although I opposed the postal survey, I remember when the result came in and returns from the Illawarra community were on par with, or even a bit better than, the NSW average and the national average, that was really satisfying to see. That our community was not out of step with the rest of the country, but was actually part of the vote for change.

It was a really great outcome in a lot of ways, including economically. There is a lot of research (including by economists like Richard Florida),[85] that the acceptance of sexual diversity is closely linked to economic growth. The result showed that the Illawarra accepted difference.

For Evelyn Gray, the benefits of the high yes vote in the postal survey, and passage of marriage equality, are more personal:[86]

I think it’s resulted in a more caring and accepting community as a whole, with couples more likely to be seen holding hands in public, [with] drag storytime at the library becoming increasingly accepted, [and] more local groups accepting young LGBTI people, [as well as] rainbow family playgroups.

Wollongong’s Rainbow Crossing

The Positive Legacy of Marriage Equality in Wollongong #2: Happy Couples

Obviously, the most tangible – and, in the author’s view, most important – positive legacy of marriage equality in Wollongong is the fact local LGBTI couples are now permitted to marry under Australian law, or for couples who were not prepared to wait for the law to change, to have their overseas marriages legally recognised.

It is not possible to determine the exact number of same-sex couples currently living in the Wollongong LGA. However, with 46,770 same-sex couples recorded nation-wide in the 2016 Census,[87] and Wollongong LGA constituting just under 1% of the Australian population,[88] it is likely that the number is somewhere between 300 and 500. And with 6,538 same-sex marriages registered in the first year after marriage equality took effect,[89] that means dozens of same-sex couples marrying in Wollongong in 2018 alone.

Far more important than these numbers, however, is the fact each of these couples has their own unique story, like the first reported couple in the Illawarra who took advantage to the change in the law at the start of 2018:[90]

On Tuesday morning, two months after the ‘yes’ vote was delivered but just nine hours after their union became legally allowable, Michael [Hobbs] wed his long-time partner Edward [Kwok-Hobbs] at a ceremony at Wollongong’s Lagoon restaurant.

Michael reflected on what being married meant to him: ‘It gives us security, a feeling of acceptability. Our civil rights have been met now. It’s way overdue, but this is a lot to us.’[91] However, in a sad reflection on the considerable delay which LGBTI couples in Australia endured on the walk down the aisle:[92]

The men say their nine-year relationship has long had the support of their families. Michael’s father attended their commitment ceremony, but didn’t live to see the day his son could marry. 

“He would have been over the moon,” Michael said.

“My mum can’t come today because she’s housebound but she’ll be waiting for all the gossip when we get home.”

The passage of time – and the delay in Australia achieving marriage equality – was also a theme of another local Tonina Harvey, when describing the challenging path to her wedding to now-wife Kt Harvey:[93]

We were going to go to NYC to get married in 2016 but unfortunately I got breast cancer and all plans were put on hold. Getting sick we were faced with my mortality and the lack of legal standing of our relationship. When the plebiscite was announced – we had a feeling of disbelief that after 38 years of life together, the country had our destiny in their hands. Therefore the outcome was a relief!

We had a large wedding (150) on the 4th [of] August [2018] and it was the first time in our lives that we had all of our family in the same room as our friends – we thought it would either be a disaster or ok. It turned out to be fabulous!! The amount of happiness and acceptance in the room was overwhelming. We had an absolutely wonderful day and feel that we would love to do it all over again!

[O]n the 4th August we will celebrate our 2nd wedding anniversary and on 11th August our 40th year together! As we have aged having the legal security of a marriage certificate is reassuring.

There are already literally dozens of stories like Michael and Edward, and Tonina and Kt, of same-sex couples who have finally had the opportunity to wed following the passage of marriage equality in late 2017. And there will be hundreds more in the years, and decades, to come – which is the second reason why this article is necessarily ‘An Incomplete History of Marriage Equality in Wollongong’ – because that history is being written with each and every wedding of a local LGBTI couple.

Tonina Harvey (left) with wife Kt Harvey on their wedding day, 4 August 2018.

Conclusion: An Oversized Role, but a Story that Continues

In the preceding sections, we have seen how MPs for Cunningham Michael Organ and Throsby/Whitlam Stephen Jones were among leading parliamentary voices for change. And how Senator Concetta Fierravanti-Wells was one of its ardent opponents. In the local community, Evelyn Gray was one of many influential campaigners for marriage equality – although, as discussed, this article could have just as easily highlighted several others.

Based on the passionate advocacy of Organ, Jones, Gray et al, the small, regional city of Wollongong played an oversized role in the history of marriage equality in Australia. A history that is still being written in the stories of LGBTI couples who finally have the opportunity to walk down the aisle and wed the person they love.

Bibliography

Interviews

Stephen Jones MP, via telephone, 22 June 2020

Evelyn Gray, written interview, 9 July-28 July 2020

Tonina Harvey, written interview, 19 July-28 July 2020

[NB Senator Concetta Fierravanti-Wells, Catholic Bishop Peter Ingham and Anglican Bishop Peter Hayward were all provided with interview questions in June 2020, however none responded.]

Books/Articles

Alex Greenwich and Shirleene Robinson, Yes Yes Yes: Australia’s Journey to Marriage Equality, NewSouth Publishing, 2018

Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, Port Campbell Press, 2011 (e-book)

Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library, available at: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1718/Quick_Guides/SSMarriageBills

Janet Phillips, Attitudes to same-sex marriage, 17 November 2010, Parliament House Library, available at: https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2010/November/Attitudes_to_same-sex_marriage

Sally Rugg, How Powerful We Are: Behind the scenes with one of Australia’s leading activists, Hachette, 2019

Hansard

Michael Organ MP, House of Representatives: 17, 24 June 2004 

Stephen Jones MP, House of Representatives: 15 November 2010; 13 February 2012; 19 September 2012; 12 December 2013; 29 February 2016; 13 October 2016; 10 August 2017; 5, 7 December 2017.

Senator Concetta Fierravanti-Wells, Senate: 14 October 2008; 19 September 2012; 27, 28, 29 November 2017

Australian Bureau of Statistics

2016 Census QuickStats: Wollongong, available at:https://quickstats.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/LGA18450

Australian Marriage Law Postal Survey: National Results, 15 November 2017, available at: https://www.abs.gov.au/ausstats/abs@.nsf/mf/1800.0

Australian Marriage Law Postal Survey: Results for NSW, 15 November 2017, available at: https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/1800.0~2017~Main%20Features~New%20South%20Wales~9

2071.0 – Census of Population and Housing: Same-Sex Couples inf Australia, 2016, published 18 January 2018. Available at: https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/2071.0main+features852016

3310.0 – Marriages and Divorces, Australia, 2018, published 27 November 2019. Available at: https://www.abs.gov.au/ausstats/abs@.nsf/7d12b0f6763c78caca257061001cc588/41346a2832051929ca25835100100a89!OpenDocument

Wollongong Council Documents

Agenda – Extraordinary Meeting of Council: 9 October 2017. Available at: https://wollongong.nsw.gov.au/__data/assets/pdf_file/0026/38546/Council-Agenda-9-October-2017.pdf

Minutes – Ordinary Meeting of Council 30 October 2017. Available at: https://wollongong.nsw.gov.au/__data/assets/pdf_file/0018/38520/Council-Minutes-30-October-2017.pdf

Minutes – Ordinary Meeting of Council 22 July 2019. Available at: https://wollongong.nsw.gov.au/__data/assets/pdf_file/0033/38877/Council-Minutes-22-July-2019.pdf

Other Web Sources

Diocese of Wollongong, Statement from Bishop Peter Ingham, Change in the Definition of Marriage, 1 September 2017. Available at: https://www.catholic.org.au/acbc-media/downloads/all-downloads/bishops-statements-on-marriage-plebiscite/1969-pastoral-letter-bishop-ingham-change-in-the-definition-of-marriage/file

Australian Marriage Equality, ‘Join 54 Councils that Support Marriage Equality’, accessed 27 July 2020. Available at: https://www.australianmarriageequality.org/local-council-motion-of-support/

Wollongong for Marriage Equality/LGBTI Equality Wollongong Facebook page: https://www.facebook.com/LGBTI-Equality-Wollongong-232020430221206/

Individual Footnotes:


[1] Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library.

[2] Michael Organ MP, House of Representatives Hansard, 24 June 2004.

[3] Michael Organ MP, House of Representatives Hansard, 17 June 2004.

[4] Ibid.

[5] Janet Phillips, Attitudes to same-sex marriage, 17 November 2010, Parliament House Library.

[6] Michael Organ MP, House of Representatives Hansard, 17 June 2004.

[7] Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library.

[8] Stephen Jones MP, House of Representatives Hansard, 15 November 2010.

[9] Interview with Stephen Jones MP, via phone, 22 June 2020.

[10] Bob Harrison, ‘Marriage must be defended’, Illawarra Mercury, 24 November 2010. Available at: https://www.illawarramercury.com.au/story/632537/marriage-must-be-defended/

[11] Mario Christodoulou, ‘Gay marriage battle in Throsby’, Illawarra Mercury, 11 December 2011. Available at: https://www.illawarramercury.com.au/story/638329/gay-marriage-battle-in-throsby/

[12] Bob Harrison, ‘Jones ignores party stance’, Illawarra Mercury, 31 January 2012. Available at:https://www.illawarramercury.com.au/story/639043/jones-ignores-party-stance/

[13] Interview with Stephen Jones MP, via phone, 22 June 2020.

[14] Stephen Jones MP, House of Representatives Hansard, 13 February 2012.

[15] Stephen Jones MP, House of Representatives Hansard, 19 September 2012.

[16] Deirdre McKeown, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide, updated 15 February 2018, Parliament of Australia Library. 

[17] An equivalent Bill in the Senate, introduced by Labor Senators Carol Brown, Trish Crossin, Gavin Marshall and Louise Pratt, was also voted down, by 41 votes to 26.

[18] Stephen Jones MP, House of Representatives Hansard, 12 December 2013.

[19] Marriage Legislation Amendment Bill 2015.

[20] Stephen Jones MP, House of Representatives Hansard, 29 February 2016.

[21] Stephen Jones MP, House of Representatives Hansard, 13 October 2016, speaking on the Plebiscite (Same-Sex Marriage) Bill 2016.

[22] Andrew Pearson, ‘Same-sex marriage plebiscite an ‘absolute joke’, Illawarra Mercury, 14 September 2016. Available at: https://www.illawarramercury.com.au/story/4163361/same-sex-marriage-plebiscite-an-absolute-joke/

[23] Stephen Jones MP, House of Representatives Hansard, 10 August 2017.

[24] Stephen Jones MP, House of Representatives Hansard, 7 December 2017.

[25] Interview with Stephen Jones MP, via phone, 22 June 2020.

[26] Ibid.

[27] Australian Bureau of Statistics, Australian Marriage Law Postal Survey, National Results, 15 November 2017.

[28] Australian Bureau of Statistics, Australian Marriage Law Postal Survey, Results for NSW, 15 November 2017.

[29] Ibid.

[30] Stephen Jones MP, House of Representatives Hansard, 5 December 2017.

[31] Australian Bureau of Statistics, 2016 Census QuickStats: Wollongong

[32] Ibid.

[33] Interview with Stephen Jones MP, via phone, 22 June 2020.

[34] Sally Rugg, How Powerful We Are: Behind the scenes with one of Australia’s leading activists, 2019, p xiv.

[35] Written interview with Evelyn Gray, 9 July-28 July 2020.

[36] A page with 1,195 followers as at 30 July 2020.

[37] Written interview with Evelyn Gray, 9 July-28 July 2020.

[38] Ibid.

[39] Ibid.

[40] As quoted in Kaitlin Thals, ‘PM’s V-Day message slammed by gay marriage advocates’, The New Daily, 15 February 2016. Available at: https://thenewdaily.com.au/news/national/2016/02/15/pms-v-day-message-slammed-gay-marriage-advocates/

[41] ‘Thanking Stephen Jones MP for his efforts to bring about equality for same-sex couples, replying to his critics, [and] correcting falsehoods about public support for marriage equality’: Written interview with Evelyn Gray, 9 July-28 July 2020.

[42] Written interview with Evelyn Gray, 9 July-28 July 2020.

[43] Victor Marsh and Michael Kirby, Speak Now: Australian Perspectives on Same-Sex Marriage, 2011 (e-book).

[44] Written interview with Evelyn Gray, 9 July-28 July 2020.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] The rally was covered in Agron Latifi, ‘Supporters of marriage equality speak up at University of Wollongong rally’, Illawarra Mercury, 30 August 2017. Available at: https://www.illawarramercury.com.au/story/4891454/activists-push-for-marriage-equality-at-wollongong-rally/

[49] Alex Greenwich and Shirleene Robinson, Yes Yes Yes: Australia’s journey to marriage equality, 2018, p 92.

[50] Written interview with Evelyn Gray, 9 July-28 July 2020.

[51] Ibid.

[52] Ibid.

[53] Ibid.

[54] Stephen Jones MP, House of Representatives Hansard, 13 February 2012.

[55] The couple were also featured in a supportive article the previous day in the local paper: Shannon Tonkin, ‘Gay marriage struggle at a turning point’, Illawarra Mercury, 12 February 2012. Available at: https://www.illawarramercury.com.au/story/639342/gay-marriage-struggle-at-a-turning-point/

[56] Stephen Jones MP, House of Representatives Hansard, 5 December 2017.

[57] Michael Koziol, ‘The study on gay marriage that was too good to be true’, Sydney Morning Herald, 21 May 2015. Available at: https://www.smh.com.au/world/the-study-on-gay-marriage-that-was-too-good-to-be-true-20150521-gh6fi7.html

[58] Australian Bureau of Statistics, Australian Marriage Law Postal Survey, Results for NSW, 15 November 2017.

[59] Ibid.

[60] Senator Concetta Fierravanti-Wells, Senate Hansard, 14 October 2008.

[61] Senator Concetta Fierravanti-Wells, Senate Hansard, 19 September 2012.

[62] Kate McIlwain, “Gay couples ‘not interested in monogamy’, Illawarra Mercury, 21 September 2012. Available at: https://www.illawarramercury.com.au/story/348839/gay-couples-not-interested-in-monogamy/

[63] Senator Concetta Fierravanti-Wells, Senate Hansard, 19 September 2012.

[64] Andrew Pearson, ‘How Illawarra MPs will vote in same-sex marriage postal survey’, Illawarra Mercury, 18 September 2017. Available at: https://www.illawarramercury.com.au/story/4932336/how-illawarra-mps-will-vote-in-same-sex-marriage-postal-survey/

[65] Senator Concetta Fierravanti-Wells, Senate Hansard, 27 November 2017.

[66] Senator Concetta Fierravanti-Wells, Senate Hansard, 28 November 2017.

[67] Senator Concetta Fierravanti-Wells, Senate Hansard, 29 November 2017.

[68] Editorial, Illawarra Mercury, 30 November 2017. Available at: https://www.illawarramercury.com.au/story/5090253/editorial-november-30-historic-moment-as-our-senate-says-yes/

[69] Diocese of Wollongong, Statement from Bishop Peter Ingham, Change in the Definition of Marriage, 1 September 2017.

[70] Kate McIlwain, Wollongong Anglican church leader’s public lecture on ‘no’ case, Illawarra Mercury, 14 September 2017. Available at: https://www.illawarramercury.com.au/story/4923444/wollongong-anglican-church-leaders-public-lecture-on-no-case/

[71] Written interview with Evelyn Gray, 9 July-28 July 2020.

[72] ‘The gay couple who oppose same-sex marriage’, ABC 7:30 Report, 4 September 2017, available at: https://www.abc.net.au/7.30/the-gay-couple-who-oppose-same-sex-marriage/8871286

[73] Julia Holman and Paige Mackenzie, ‘The gay couple who oppose same-sex marriage’, ABC News online, 4 September 2017. Available at: https://www.abc.net.au/news/2017-09-04/the-gay-couple-who-oppose-same-sex-marriage/8871118

[74] Brendan Crabb, ‘Kiama council pledges support for marriage equality’, Illawarra Mercury, 16 February 2017. Available at: https://www.illawarramercury.com.au/story/4473714/marriage-equality-support/

[75] Australian Marriage Equality, ‘Join 54 Councils that Support Marriage Equality’, accessed on 29 July 2020.

[76] Kate McIlwain, ‘Push to highlight marriage equality by flying rainbow flag at Wollongong City Council chambers’, Illawarra Mercury, 21 August 2017. Available at: https://www.illawarramercury.com.au/story/4868941/wollongong-council-should-fly-the-rainbow-flag-labor-candidates/

[77] Wollongong Council, Agenda – Extraordinary Meeting of Council: 9 October 2017.

[78] Wollongong Council, Minutes – Ordinary Meeting of Council 30 October 2017.

[79] Kate McIlawain, ‘Wollongong council will fly the rainbow flag until November 17’, Illawarra Mercury, 30 October 2017. Available at: https://www.illawarramercury.com.au/story/5023114/wollongong-council-will-fly-the-rainbow-flag-until-november-17/

[80] Wollongong Council, Minutes – Ordinary Meeting of Council 30 October 2017.

[81] Kate McIlawain, ‘Wollongong council will fly the rainbow flag until November 17’, Illawarra Mercury, 30 October 2017. Available at: https://www.illawarramercury.com.au/story/5023114/wollongong-council-will-fly-the-rainbow-flag-until-november-17/

[82] Wollongong Council, Minutes – Ordinary Meeting of Council 22 July 2019.

[83] Kate McIlwain, ‘Wollongong council’s beach-side rainbow crossing spreads the Christmas love’, Illawarra Mercury, 24 December 2019. Available at: https://www.illawarramercury.com.au/story/6556098/wollongongs-beach-side-rainbow-crossing-spreads-the-christmas-love/

[84] Interview with Stephen Jones MP, via phone, 22 June 2020.

[85] Author of influential 2002 book The Rise of the Creative Class.

[86] Written interview with Evelyn Gray, 9 July-28 July 2020.

[87] Australian Bureau of Statistics, 2071.0 – Census of Population and Housing: Same-Sex Couples in Australia, 2016, published 18 January 2018.

[88] Australian Bureau of Statistics, 2016 Census QuickStats: Wollongong, which showed a population of 203,630 out of the total Australian population of 23.4 million.

[89] Australian Bureau of Statistics, 3310.0 – Marriages and Divorces, Australia, 2018, published 27 November 2019.

[90] Angela Thompson, ‘Illawarra’s first same-sex marriage sealed with a kiss’, Illawarra Mercury, 9 January 2018. Available at: https://www.illawarramercury.com.au/story/5159204/michael-edward-seal-illawarras-first-same-sex-marriage-with-a-kiss/

[91] Ibid.

[92] Ibid.

[93] Written interview with Tonina Harvey, 19 July-28 July 2020.

The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked

Update 10 December 2020:

The Morrison Government’s Second Exposure Draft Religious Discrimination Bill was released one year ago today (on Human Rights Day, which was particularly ironic given its contents trample on the rights of women, LGBTI people, single parents, divorced people and people in de facto relationships, and people with disability, among many others).

Following public consultation during January and February, it was expected the final version of the Bill would be introduced in Commonwealth Parliament by Attorney-General Christian Porter in March 2020.

Of course, COVID-19 had other plans – who knew all it took to stop this awful law was the worst global pandemic in a century? Although, in reality, their proposed legislation was only ever placed on pause – and there is increasing evidence PM Morrison and AG Porter plan to introduce their Religious Discrimination Bill in early 2021.

On Sunday 6 December, the Guardian Australia reported that:

The attorney general, Christian Porter, said in a statement: “The government will revisit its legislative program as the situation develops, and bring the religious discrimination bill forward at an appropriate time.”

This was followed by a story in Monday 7 December’s Australian, stating that:

Australia’s faith leaders are urging Scott Morrison to put the implementation of a Religious Discrimination Act at the top of his political agenda next year, warning their congregations would hold the Prime Minister to his election pledge once COVID-19 passes…

Catholic, Anglican and Muslim leaders told The Australian work on a Religious Discrimination Act must begin as early as February when federal parliament returned from its summer break.

It is clear that religious fundamentalists both within and without the Government want to push ahead with this deeply-flawed legislation come hell or high water, the rights of other Australians be damned.

There is a very real risk the final Bill will be introduced in the first half of 2021, perhaps as soon as when Commonwealth Parliament resumes on February 2nd. Scott Morrison is fond of (over-)using the word ‘comeback’ at the moment – but reviving the Religious Discrimination Bill is one comeback that most definitely should not happen.

The Religious Discrimination Bill must be resisted, in the strongest possible way, for all of the reasons outlined below in my original post about the Second Exposure Draft. To allow it to pass would mean undermining the rights of many, many Australians to live our lives free from discrimination.

Original Post:

It is ironic that a Bill that uses the phrase ‘in good faith’ multiple times (four times in the First Exposure Draft, and nine times in the Second) was itself developed through a process that was the polar opposite.

The Religious Discrimination Bill is the end product of the Religious Freedom Review, which was a gift to religious fundamentalists during parliamentary debate about marriage equality in 2017, and was payback against LGBTI Australians for having the temerity to demand equal rights under secular law.

When that review was finally released in December 2018, Attorney-General Christian Porter promised that the Government’s Religious Discrimination Bill would be similar to other anti-discrimination laws, and ‘follow a very standard architecture’.[i] Instead he has delivered incredibly complex legislation with several unique, special rights for religious individuals and organisations to discriminate against others (more on that below).

Mr Porter also stated in December 2018 that ‘we are well-advanced on the drafting of [the Bill] and which we would have out early next year [2019], so that people can see it.’ Yet the Liberal-National Government did not reveal any details of the Bill until after the May 2019 federal election, leaving voters in the dark about a central plank of their platform (perhaps some voters may have voted differently had they known their human rights would later come under sustained attack).

In August, the Guardian Australia reported that:

Christian Porter has sought to allay concerns that a federal religious discrimination bill could water down protections for LGBT people in state legislation. The attorney general told Guardian Australia the bill “is not intended to displace state law…”’[ii]

But when the First Exposure Draft Bill was released on 29 August it did exactly that, with clause 41 directly over-riding Commonwealth, state and territory anti-discrimination legislation, and specifically over-riding Tasmania’s best practice protections against ‘conduct which offends, humiliates, intimidates, insults of ridicules’[iii] others, including women, LGBTI people and others.

At no point between December 2018 and August 2019 did the Morrison Government consult with anyone other than the religious organisations who would benefit from the Bill. There was no engagement with any of the people who stood to lose the most, from women, to LGBTI people, single parents, divorced people and people in de facto relationships, and people with disability.

Even when the Attorney-General released the Exposure Draft Religious Discrimination Bill for public comment – and received a deluge of criticism from representatives of those groups, as well as the vast majority of civil society organisations, and even the Australian Human Rights Commission, the independent body who would be responsible for overseeing any legislation once passed – Porter, and the Government, have chosen to ignore that feedback.

In fact, the only major substantive change to the Bill was something demanded by religious organisations – to expand its religious exceptions even further, allowing religious hospitals and aged care services to discriminate on the basis of religious belief in employment. Even when receiving taxpayers money to deliver public services.

It is completely unsurprising that, having undertaken a bad faith process to develop its legislation, the Government has produced what is essentially a ‘bad faith’ Religious Discrimination Bill. A Bill that prioritises and privileges the rights of religious individuals and organisations over and above everyone else.

This can be seen in how the Second Exposure Draft[iv] differs from the First in relation to its four major problems[v] – or, rather, in how there is nothing to separate the two Bills, meaning the Government has not addressed these flaws.

The Religious Discrimination Bill will still make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities

Clause 42 (which was previously clause 41) continues to exempt ‘statements of belief’ from discrimination complaints under all Commonwealth, state and territory anti-discrimination legislation, including the Fair Work Act 2009 (Cth) and Tasmania’s best practice Anti-Discrimination Act 1998.

Indeed, multiple changes to the Bill will actually ensure more discriminatory statements of belief are protected from legal consequences. This includes expanding the definition of statements of belief (so that they do not need to align with the mainstream views of any religion, but can be from the extreme fringes of faith), as well as providing that comments will be protected even where they are ‘moderately’ intimidating towards the victim.[vi]

Nor has the Government addressed the constitutional flaws of this provision. Because the Bill would introduce a Commonwealth defence to state laws, state tribunals would legally be unable to determine whether the defence was valid. So where a person makes a complaint of discrimination, and a respondent claims it was a ‘statement of belief’, it would need to be referred from the tribunal to a court to hear that particular issue, and then referred back to the tribunal to determine the remainder of the complaint – massively increasing the costs and time involved, with the likely outcome that many discrimination complaints will be withdrawn no matter how valid they are.

Overall, clause 42 will still encourage degrading and demeaning comments about women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability, and even people from minority faiths,[vii] in all areas of public life, from workplaces to schools and universities, health care, aged care and other community services, to cafes, restaurants and even shops.

The Religious Discrimination Bill will still make it easier for health practitioners to refuse to serve minorities

There have been some minor improvements to the ‘conscientious objection’ provisions in the Second Exposure Draft (previously clauses 8(5) and (6), now clauses 8(6) and (7) of the Bill). This includes narrowing the list of health practitioners who will be able to take advantage of these sections, as well as including a note that they are not intended to allow practitioners to refuse to provide a service to a category of people.

But, in practice, these changes are superficial rather than substantive. The list of practitioners who remain covered:

  • Doctors
  • Midwives
  • Nurses
  • Pharmacists, and
  • Psychologists

means the vast majority of interactions between patients and the health system are nevertheless potentially jeopardised via ‘conscientious objection’.

Meanwhile, the distinction between refusing to provide a service to a category of people (which would not be permitted) and refusing to provide a category of service to people (which would be) is so blurry as to be meaningless.

As Attorney-General Porter himself confirmed when releasing the Second Exposure Draft, it is designed to protect ‘a GP who did not want to “engage in hormone therapies” for a trans person. “That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all.”’[viii]

The net effect is that GPs and pharmacists will be empowered to:

  • Refuse to provide reproductive health services, even where this disproportionately affects women
  • Refuse to provide PEP and/or PrEP, even there this disproportionately affects gay, bisexual and other men who have sex with men, and
  • Refuse to provide hormone therapy (including puberty blockers), even where this disproportionately affects trans and gender diverse people.

Overall, clauses 8(6) and (7) will still encourage practitioners to refuse to provide vital health care services to some of the most vulnerable members of the Australian community.

The Religious Discrimination Bill will still make it easier for religious bodies to discriminate against others

In fact, as hinted at earlier, the religious exceptions contained in the Second Exposure Draft will make it even easier for even more religious organisations to discriminate in even more circumstances.

Clause 11 (which was previously clause 10), provides an exception to all religious schools and universities, as well as ‘registered public benevolent institutions’ (even where providing commercial services to members of the public), as well as ‘any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities)’.

This exception allows these bodies to discriminate on the ground of religion in both employment, and who they provide services to (or withhold services from).

The test for determining whether the organisation can (ab)use these special privileges is also much easier to satisfy in the Second Exposure Draft. In fact, there are now two alternative tests, and the organisation need only satisfy one:

  • Clause 11(3) is already a lower standard than the existing religious exception in the Sex Discrimination Act 1984 (Cth), because the organisation can simply act, ‘in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion’ – unlike section 37(1)(d) of the SDA, these acts do not need to be ‘necessary’.
  • Clause 11(1) sets an even lower standard again. It provides that a ‘religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.’

This second test is entirely subjective. A religious body is only required to demonstrate that one other person considers their discrimination is in accordance with their faith. They don’t even have to agree with the discrimination itself! This hurdle is so easy to clear that it is almost impossible to imagine any scenario where a court or tribunal will disallow religious discrimination by these organisations.

Which is particularly devastating because the Second Exposure Draft also expands the types of organisations that can take advantage of these privileges.

Clauses 32(8) and (10) allow religious hospitals, aged care services and accommodation providers to discriminate in employment on the ground of religion. And clauses 33(2) and (4) permit religious camps and conference sites to discriminate in who they provide services to (even where these are facilities run on a commercial basis and otherwise open to the public).

As I have written previously, these religious exceptions will mean that:

  • A professor can be denied a job because they are Jewish.
  • A doctor can be refused employment at a hospital because they are Muslim.
  • A school student can be expelled because they are atheist.
  • A homeless person can miss out on a bed in a shelter because they are Hindu.
  • A charity worker can be rejected for promotion because they are Buddhist.
  • An aged care employee can lose shifts because they are agnostic.

Overall, clause 11 (and related clauses) will fundamentally divide Australia, by empowering religious organisations to discriminate both in employment, and in who they provide services to, on the grounds of religion. And they will be able to do so while using taxpayers’ money. Your money. My money, Our money.

The Religious Discrimination Bill will still make it more difficult for big business to promote diversity and inclusion

Clauses 8(3) and (5) (which were previously 8(3) and (4)) are the provisions which were created in response to the circumstances of a certain ex-footballer – by making it incredibly difficult for organisations with revenue of at least $50 million per annum to impose codes of conduct that prevent an employee from making discriminatory comments outside their ordinary hours of employment.

These clauses have been slightly improved in the Second Exposure Draft. By clarifying they only protect employees in conduct ‘other than in the course of the employee’s employment’, it actually applies to a reduced set of circumstances.

But Attorney-General Porter has also included a new clause 8(4), which makes things much worse again – by preventing qualifying bodies (like legal admission or medical registration bodies) from taking into account degrading or demeaning public comments which applicants may have made ‘unless compliance with the rule by the person is an essential requirement of the profession, trade or occupation’.

Previously, these bodies may have denied admission or registration on the basis that the applicant was not a ‘fit and proper person’ – instead, homophobes, biphobes and transphobes will be encouraged to discriminate with little or no professional consequences.

**********

Any of these problems should be sufficient in and of itself for anyone interested in human rights for all Australians, and not just for some, to oppose the Bill. All of them together should be enough for Labor, the Greens and Senate Cross-Bench to vote against it – although only the Greens’ opposition is secure at this stage.

And that’s not even including some of the other ‘lesser’ problems in the package of ‘religious freedom’ laws the Government is seeking to pass, which are each significant in their own right:[ix]

  • Creating a ‘Religious Freedom Commissioner’ within the Australian Human Rights Commission, to advance the ‘religious freedom’ agenda, even though such a position was not recommended by the Government’s own Ruddock Review, and while LGBTI Australians continue to be denied a Sexual Orientation, Gender Identity and Sex Characteristics Commissioner.
  • Amending the Marriage Act 1961 (Cth) to reinforce the ability of religious educational institutions to reject same-sex weddings, even where they provide those services to the public on a commercial basis – and despite the fact such a ban was not previously required to reject divorced people remarrying (meaning this is essentially an anti-marriage equality provision),[x] and
  • Amending the Charities Act 2013 (Cth) to ‘protect’ charities advocating against an inclusive definition of marriage, even though the Australian Charities and Not-for-profits Commission (ACNC) explicitly stated such a clause was not needed, and despite the fact no other type of advocacy (from Indigenous, to environmental or LGBTI) is protected in this way.

Unfortunately, there are even more problems in the Religious Discrimination Bill, and its two related Bills (the Religious Discrimination (Consequential Amendments) Bill, and the Human Rights Legislation Amendment (Freedom of Religion) Bill), although it would take too long to describe them all in detail here.

In short, these are deeply flawed Bills, developed through a bad faith process, that will have a terrible impact on women, LGBTI people, people with disability and others. If passed, they would lead to increased division between different communities, changing our country for the worse. They must be blocked.

Perhaps the most frustrating part of this debate is that a genuine Religious Discrimination Bill, one that protected people of faith and no faith against discrimination on the basis of who they are, would have been a welcome development.

If the Government had prepared the Religious Discrimination Bill in good faith, it would have been met with substantial community goodwill. Instead, they listened to religious fundamentalists, and have now released two slightly different versions of legislation containing the same fundamental flaw – it increases discrimination rather than reducing it.

Significantly, the victims of the Government’s Bill will not only be women, LGBTI people, single parents, people in de facto relationships, divorced people, and people with disability. People from minority faiths, atheists and agnostics all stand to lose under Attorney-General Porter’s, and Prime Minister Morrison’s, disingenuous and disastrous Second Exposure Draft ‘Religious Freedom’ Bills.

Anti-discrimination legislation should reduce discrimination, not increase it. It should unite us, rather than divide us. The Religious Discrimination Bill fails on those most fundamental criteria. It is a bad faith Bill, and the only possible good outcome from here would be for it to be rejected in its entirety.

Take Action

One of my main objectives for the blog this year is to include practical information on as many posts as possible about actions readers can take. In this instance, there are at least three things you can do:

  1. Write a submission on the Second Exposure Draft Bills

The Second Exposure Draft ‘Religious Freedom’ Bills are open for public consultation until Friday 31 January 2020. Details of the Bills are here, and you can send written submissions via email to FoRConsultation@ag.gov.au

You don’t have to be a lawyer to make a submission, nor do you need to comment on all of the Bills’ many problems. Instead, you can simply describe your general concerns about the proposed legislation, as well as any specific fears about its impact on you and your community. Some suggested points include:

  • All Australians deserve to be protected against discrimination.
  • This includes people of faith, and no faith. But it must also include women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability and others.
  • Unfortunately, the Second Exposure Draft Religious Freedom Bill will increase discrimination against many groups, including people from minority faiths, rather than reduce it.
  • It will encourage people to make ‘statements of belief’ that degrade and demean others just because of who they are, in workplaces, schools and universities, health care, aged care and community services, cafes, restaurants, shops and other public places.
  • It will encourage doctors, pharmacists and other health practitioners to refuse to provide vital health services to vulnerable Australians.
  • It will encourage religious organisations to discriminate against people on the basis of their faith, in schools and universities, hospitals, aged care and other community services, even where they are delivering essential public services using public funding.
  • The Government should scrap the current version of the Religious Discrimination Bill, and prepare a new Bill that reduces discrimination rather than increasing it.
  • If the Government fails to do so, the Parliament must reject the Second Exposure Draft Religious Discrimination Bill, and associated ‘Religious Freedom’ Bills.
  1. Write to MPs and Senators expressing your concerns

While submissions about the Exposure Draft Bills are valuable, it is essential you also convey your concerns directly to your elected representatives.

It is especially important to write to the following:

  • ALP MPs and Senators
  • Greens MP and Senators
  • Centre Alliance Senators (if you’re in South Australia)
  • Senator Jacqui Lambie (if you’re in Tasmania), and
  • Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith).

PFLAG Australia has made this process easy, using the website Equality, Not Discrimination.

You can also access a range of materials from Equality Australia here, including a submission-writing toolkit.

  1. Attend a public rally against the Bills

For those who prefer their activism to be on the streets, there will also be a number of public rallies around the country in coming weeks, including:

Sydney: Saturday 8 February at 1pm, Sydney Town Hall

Melbourne: Sunday 9 February at 1pm, State Library of Victoria

Brisbane: Saturday 1 February at 5pm, King George Square, and

Perth: Saturday 8 February at 1pm, Forrest Chase

The bad faith Religious Discrimination Bill, and the two other proposed ‘Religious Freedom’ Bills, can be blocked, but only if we all take action together.

Christian Porter

Attorney-General Christian Porter, author of the ‘Bad Faith’ Religious Discrimination Bill.

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

Footnotes:

[i] Attorney-General Media Conference, 13 December 2018.

[ii]Christian Porter says religious freedom bill won’t erode state LGBT protections’ 12 July 2019.

[iii] Section 17(1) Anti-Discrimination Act 1998 (Tas).

[iv] The complete Religious Freedom Bills – Second Exposure Drafts (which includes the updated Religious Discrimination Bill) can be found here.

[v] See The Growing List of Problems with the Religious Discrimination Bill.

[vi] Clause 42(2) provides that statements of belief will not be protected if it is:

  • malicious
  • that would, or is likely to, harass, threaten, seriously intimidate or vilify another person or group of persons; or
  • would be considered ‘counselling, promoting, encouraging or urging conduct that would constitute a serious offence.’

[vii] See The Internal Contradiction of the Morrison Government’s Religious Discrimination Bill.

[viii] ‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, Sydney Morning Herald, 10 December 2019.

[ix] For more detail, see The Growing List of Problems with the Religious Discrimination Bill.

[x] Unfortunately, it would not be the only provision in the Marriage Act 1961 (Cth) which discriminated against same-sex couples, despite the postal survey result. For more see: No, We Don’t Have Marriage Equality Yet.

The Growing List of Problems with the Religious Discrimination Bill(s)

The Religious Discrimination Bill(s), released by Attorney-General Christian Porter in late August, remind me a lot of the ongoing Sydney apartment crisis.

 

They are the inevitable consequence of a system that has been designed to serve the interests of one group over and above everyone else. Except instead of property developers, these new laws would benefit religious fundamentalists. While those left picking up the tab are women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities, and plenty of others.

 

And, just like a recently-built Sydney apartment, what might seem shiny and new on first inspection reveals a growing list of defects the closer one looks.

 

Here then is a look at the serious problems with the Religious Discrimination Bill(s) that we are already aware of (a list I’m sure will grow if we ever have the misfortune of ‘living’ under these shoddily-constructed laws):

 

The Religious Discrimination Bill will make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities

 

The worst provision of the Exposure Draft Religious Discrimination Bill is proposed section 41. This provides that ‘statements of belief’ are basically exempt from discrimination complaints under all Commonwealth, State and Territory anti-discrimination laws (including the Fair Work Act 2009).

 

As long as the person making such comments does so on the basis of their religion and they are made ‘in good faith’, they will be lawful unless the person on the receiving end can show they are malicious, or likely to harass, vilify, incite hatred or violence. In practice, that would be extremely difficult to prove.

 

This section is a radical departure from our current anti-discrimination framework, under which Commonwealth laws like the Sex Discrimination Act 1984, and State and Territory laws like the NSW Anti-Discrimination Act 1977, operate alongside each other, allowing victims to decide where to complain.

 

The provision also specifically overrides section 17(1) of Tasmania’s Anti-Discrimination Act 1998, which prohibits conduct that ‘offends, humiliates, intimidates, insults or ridicules’ people on the basis of a wide range of protected attributes, including:

  • Gender
  • Race
  • Age
  • Sexual orientation
  • Lawful sexual activity
  • Gender identity
  • Intersex variations of sex characteristics
  • Disability
  • Marital status
  • Relationship status
  • Pregnancy
  • Breastfeeding
  • Parental status, [and]
  • Family responsibilities.

 

That’s a long list of groups who will find themselves the targets of derogatory comments having lost one of the few effective shields against them.

 

But that’s exactly what section 41 seems intended to achieve: to make it easier for religious fundamentalists to speak evil, and write evil, comments about different groups. With the obvious consequence that women, LGBTI people and others will be forced to see evil and hear evil comments about themselves.

 

This provision would build a fundamental imbalance into our existing anti-discrimination system, privileging the rights of one group within society at the expense of everyone else. It must not be allowed to pass.

 

The Religious Discrimination Bill will make it more difficult for big business to promote diversity and inclusion

 

Another serious problem of the Exposure Draft Religious Discrimination Bill are provisions which are based on the circumstances of a certain (ex-)footballer.

 

Proposed sub-sections 8(3) and 8(4) would make it much more difficult for major employers (organisations with revenue of at least $50 million per year) to introduce codes of conduct that prevent employees from making derogatory comments about minorities outside ordinary working hours where those comments are ‘statements of belief’.

 

The only way an employer will be able to enforce such restrictions is if they are able to demonstrate failure to do so would inflict ‘unjustifiable financial hardship’ on them. On a practical level, it will be extremely difficult to prove hypothetical yet significant future harm in order to justify imposing these rules in the here and now. Many big businesses will (quite understandably) simply avoid doing so.

 

It should also be noted that ‘unjustifiable financial hardship’ is the only criteria to permit these codes of conduct. They cannot be implemented on the basis of wanting to promote diversity and inclusion within the workplace (including to make other employees feel welcome), or to associate their ‘brand’ with values of diversity and inclusion more broadly – unless they can attach a sufficiently-large dollar value to it.

 

Once again the likely consequence of these provisions is to make it easier for religious fundamentalists to make offensive comments about women, LGBTI people, single parents, people in de facto relationships, divorced people and people with disabilities, among others. That seems to be the opposite outcome to what a well-constructed anti-discrimination law should achieve.

 

The Religious Discrimination Bill will make it easier for health practitioners to refuse to serve minorities

 

The next major defect of the Exposure Draft Religious Discrimination Bill is also found in proposed section 8 – this time sub-sections 8(5) and 8(6). These provisions make it easier for health practitioners to conscientiously object to providing health services.

 

If, upon reading this, you think these provisions must be referring to ‘controversial’ medical procedures such as abortion and euthanasia, you should be aware they actually cover a much, much wider range of health services.

 

This includes assisted reproductive technology, where health practitioners would presumably be empowered to ‘conscientiously object’ to providing access to single women, unmarried couples and LGBTI people.

 

But even that is just the tip of the iceberg in terms of services where it will be more difficult to impose ‘health practitioner conduct rules’ to treat all patients with dignity and respect. Indeed, the definition of ‘health service’ in section 5 ‘means a service provided in the practice of any of the following health professions:

  • Aboriginal and Torres Strait Islander health practice
  • Dental …
  • Medical
  • Medical radiation practice
  • Midwifery
  • Nursing
  • Occupational therapy
  • Optometry
  • Pharmacy
  • Physiotherapy
  • Podiatry, [and]
  • Psychology.’

 

This full list makes it abundantly clear these provisions are not restricted to permitting health practitioners to refuse to perform certain acts, but instead will encourage them to refuse to serve certain classes of people (unless someone can explain what ‘controversial’ procedures are involved in dentistry, medical radiation practice, or optometry).

 

For example, it could allow a pharmacist to refuse to dispense hormone treatments to trans customers, while providing them to cisgender women. Indeed, this is something that the Human Rights Law Alliance (which is aligned to the Australian Christian Lobby) has been publicly advocating.

 

If you are now thinking that these provisions have the potential to substantively undermine Australia’s health care system, and in particular the right of all people to access essential health services without fear of discrimination on the basis of who they are, you would be right.

 

Both of these sets of unusual amendments to the ordinary ‘reasonableness’ test for indirect discrimination (sub-sections 8(3) and (4) re big business, and sub-sections 8(5) and (6) re health practitioners) must be rejected.

 

The Religious Discrimination Bill will make it easier for religious bodies to discriminate against others

 

The fourth and final serious problem in the Exposure Draft Religious Discrimination Bill is the broad ‘exception’ in proposed section 10 that would allow religious bodies, including religious schools and registered charities, to discriminate against others on the basis of religious belief, or lack of belief.

 

Given this provision effectively allows discrimination between religions, it would be tempting for women’s organisations, and groups representing LGBTI Australians, to give it less attention than those outlined above. But it would be ill-advised to ignore its potentially far-reaching consequences.

 

For example, the test to allow discrimination: ‘conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion’, will be much easier to satisfy than the existing criteria in section 37 of the Sex Discrimination Act 1984: ‘an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’ [emphasis added].

 

If the test in section 10 of the Religious Discrimination Bill becomes law, it would set a negative precedent, with some in the Government then pushing for the same, lower standard to be included in the Sex Discrimination Act (potentially through the current Australian Law Reform Commission inquiry into religious exceptions).

 

The exception in section 10 also applies to an incredibly wide range of circumstances. For example, it would allow a religious school to expel a student in year 12 for expressing doubts about the school’s religion (something that is specifically excluded under equivalent laws in Queensland, Tasmania, the ACT and Northern Territory, which allow discrimination on the basis of religious belief at admission, but not once enrolled).

 

Finally, if section 10 becomes law it could set up a potential ‘time-bomb’ for future anti-discrimination reform. If and when we finally achieve repeal of the religious exceptions in the Sex Discrimination Act, this provision could allow religious schools to expel LGBT students who refuse to repent for their sexual orientation or gender identity (where the school attempts to claim they are not discriminating because they are LGBT, but instead on the basis of their religious beliefs about being LGBT).

 

For all of these reasons, proposed section 10 must be substantially narrowed in order to avoid creating a structural flaw not just in the Religious Discrimination Bill itself, but across anti-discrimination legislation more generally.

 

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These four sets of provisions are dangerous, unprecedented, unwanted and unwarranted additions to Australia’s anti-discrimination regime (so much so they might be described as the four horsemen of our ‘religious freedom’ apocalypse).

 

They will disturb any sense of balance or proportion in our laws, by making it clear the right of religious fundamentalists to discriminate against others is more important than the rights of women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live their lives free from discrimination.

 

The Religious Discrimination Bill will ensure that religious belief is privileged in several key ways, in an almost unlimited range of everyday situations.

 

But they are not the only threats in the draft laws released by the Attorney-General a fortnight ago.

 

You may have noticed in this article’s title, and introduction, references to Religious Discrimination Bill(s). That’s because, along with the Exposure Draft Religious Discrimination Bill itself, Mr Porter also released the Religious Discrimination (Consequential Amendments) Bill 2019, and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.

 

While these two Bills have received far less attention than the Religious Discrimination Bill, they too contain provisions that could undermine the human rights of other Australians, including:

 

The Religious Discrimination (Consequential Amendments) Bill creates the unnecessary position of Religious Freedom Commissioner

 

The Government’s own Religious Freedom Review (aka the ‘Ruddock Review’) found it was not necessary to create the position of Religious Discrimination Commissioner within the Australian Human Rights Commission.

 

Despite this, the Consequential Amendments Bill would do exactly that. Further, it frames this position as a Religious Freedom Commissioner, in contrast to the Age, Disability, Race and Sex Commissioners who are all explicitly appointed as ‘Discrimination’ Commissioners.

 

Finally, adding insult to injury, the Government would be appointing a Religious Freedom Commissioner when LGBTI Australians still do not have our own Commissioner, more than six years since the introduction of protections on the basis of sexual orientation, gender identity and intersex status.

 

The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily amends the objects clauses of anti-discrimination laws

 

This Bill would introduce the following words into the objects clauses of all other Commonwealth anti-discrimination laws:

 

‘In giving effect to the objects of this Act, regard is to be had to the indivisibility and universality of human rights, and the principle that every person is free and equal in dignity and rights.’

 

Which sounds innocuous enough, except that in the explanatory notes for the Bill the only other human right that is specifically mentioned by name is ‘the right to freedom of religion.’

 

These explanatory notes can and will be used by the judiciary in determining how these amended objects clauses affect the interpretation of the Racial, Sex, Disability and Age Discrimination Acts, potentially giving more weight to so-called religious freedom (at a time when we need to be reducing religious exceptionalism, not exacerbating it).

 

The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily ‘protects’ charities advocating discriminatory marriage

 

This Bill would also amend the Charities Act 2013 (Cth) to ensure that charities that advocate for only cisgender heterosexual marriage are not de-registered. Specifically, it would include the following in section 11:

 

‘To avoid doubt, the purpose of engaging in, or promoting, activities that support a view of marriage as a union of a man and woman to the exclusion of all others, voluntarily entered into for life, is not, of itself, a disqualifying purpose.’

 

Except, when the Marriage Act 1961 (Cth) was amended in 2017, the Charities and Not-for-profits Commission advised Parliament such an amendment was not needed. And, in the two years since then, there is exactly zero evidence of any charity being adversely affected.

 

Nor is there any justification for singling out this one discriminatory and exclusionary belief for special protection in our charities regulation.

 

The Human Rights Legislation Amendment (Freedom of Religion) Bill inserts more discriminatory religious exceptions into the Marriage Act

 

Speaking of the Marriage Act, this Bill would also insert even more religious exceptions into that law. Specifically, new section 47C would explicitly allow religious educational institutions to discriminate in the provision of facilities, goods and services for the purposes of the solemnisation of marriage.

 

This would permit schools to discriminate against LGBTI couples, divorced people re-marrying and people who had previously cohabitated – even where these facilities, goods and services are provided publicly on a commercial or for-profit basis.

 

As I have written previously, the amendments that were included in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 already mean we do not currently enjoy genuine marriage equality in this country. We should be aiming to remove those religious exceptions, not entrench them.

 

**********

 

I wrote at the beginning of this post that the Religious Discrimination Bill(s) share several similarities with the ongoing Sydney apartment crisis.

 

But there is also one key difference – while these plans have been drafted, they have not yet been ‘built’. Which means there is still time to avert this new crisis, for the Morrison Government, and Parliament more generally, to amend the Religious Discrimination Bill and its two accompanying laws, and thereby avoid their adverse impact on large numbers of everyday Australians.

 

However, if the Government and Parliament fail to listen and take action, and instead pass these Bills unamended, they will be condemning women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live under the legislative equivalent of Opal Tower, or Mascot Towers.

 

We will always be fearful of the next crack to emerge: of the next time we are discriminated against simply because of who we are, entirely lawfully, because of somebody else’s religious beliefs. We will never get to feel at home.

 

Opal Tower

The Religious Discrimination Bill(s) are the legislative equivalent of Opal Tower – but there’s still time to avert a new crisis, if the Government and Parliament are willing to listen.

 

To find out more about everyday situations in which religious beliefs will be privileged, check out this twitter thread. And if you’ve enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile.

 

No, We Don’t Have Marriage Equality Yet

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.

 

12 months ago today, the House of Representatives passed Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017.

 

It was the culmination of more than 13 years of campaigning by Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities.

 

When that law took effect, two days later, Australia finally permitted same-sex couples to wed and recognised the marriages of most[i] LGBTI couples.

 

But we did not achieve genuine marriage equality – nor do we enjoy it exactly one year later.

 

This is because the terms and conditions which apply to the marriages of LGBTI couples after 9 December 2017 are different to those which applied to cisgender heterosexual couples before that date.

 

First, and most importantly, at the time of writing, forced trans divorce – where a transgender person who is already married cannot gain access to accurate identity documentation unless they first divorce their partner – still exists in Western Australia and Tasmania[ii] (while legislation to abolish forced trans divorce has only passed in the Northern Territory in the past fortnight).

 

One of the positive aspects of last year’s marriage Bill is that it included a 12-month phase out of exceptions to the Commonwealth Sex Discrimination Act 1984 which allowed states and territories to enforce these discriminatory laws.

 

Which means that, from this Sunday, trans people who are already married in WA and Tasmania will be able to lodge a complaint with the Australian Human Rights Commission (AHRC) about their mistreatment under the Gender Reassignment Act 2000 (WA) and the Births, Deaths and Marriages Registration Act 1999 (Tas).

 

Presumably, they will also be able to seek a new birth certificate through this process (although whether the respective state Governments provide one remains to be seen).

 

Nevertheless, for as long as forced trans divorce sits on the statute books in any Australian jurisdiction, and we compel some trans people who are already married to take action with the AHRC – or even have to go to Federal Court – just to gain access to accurate identity documentation, it is inaccurate to say we have genuine marriage equality in Australia.

 

[Update May 2019: Western Australia abolished its forced trans divorce laws in February 2019, while Tasmania removed its own forced trans divorce provisions in April 2019, taking effect earlier this month. This means that – finally – forced trans divorce is history.]

 

Second, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 didn’t just allow LGBTI couples to wed – it also inserted new ‘religious exceptions’ into the Marriage Act 1961 itself. For example, it gave existing civil celebrants the ability to nominate themselves as ‘religious marriage celebrants’ and thereby refuse to perform the ceremonies of same-sex couples.

 

Importantly, this didn’t just apply to civil celebrants who were ‘ministers of religion’ of unrecognised religions (sub-section 39DD(1), which is at least arguably consistent with freedom of religion).

 

It also allowed existing civil celebrants to gain access to these special privileges based on nothing more than their personal beliefs. As is now set out in sub-section 39DD(2) of the Marriage Act 1961:

 

Marriage celebrants who wish to be religious marriage celebrants on the basis of their religious beliefs

(2) The Registrar of Marriage Celebrants must identify a person as a religious marriage celebrant on the register of marriage celebrants if:

(a) the person was registered as a marriage celebrant under Subdivision C of this Division immediately before Part 1 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced; and

(b) the person gives the Registrar notice that the person wishes to be identified as a religious marriage celebrant on the register:

(i) in writing; and

(ii) in a form approved by the Registrar; and

(iii) within 90 days after Part 1 of Schedule 1 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commences; and

(c) the choice is based on the person’s religious beliefs [emphasis added].

 

In effect, a civil celebrant who was registered before 9 December 2017 could simply sign-up to be able to say ‘no gays allowed’ (or no lesbians, bisexuals or transgender people allowed either).[iii]

 

[Update 13 December 2018: In fact, as revealed by the Ruddock Religious Freedom Review Report, 406 existing civil celebrants registered to take advantage of these new special privileges to discriminate against LGBTI couples. Which, to be honest, is even more people choosing prejudice over equal love than I had anticipated.]

 

Remember that these celebrants are not ministers of religion, and the ceremonies they officiate need not be religious. There is also no test of their beliefs – it is based solely on self-declaration.

 

In practice, this provision has very little to do with actual religious freedom, but instead provides new legal protections to homophobia, biphobia and transphobia as long as it is dressed up as ‘religious’.

 

That much is made abundantly clear by the fact similar provisions had never been introduced to ‘protect’ civil celebrants who wanted to refuse to (re-)marry people who had previously been divorced, or to reject ceremonies for couples of different faiths – both of which arouse strong religious beliefs for many people.

 

These provisions were introduced only when LGBTI couples were finally allowed to marry, demonstrating that they are not aimed at protecting genuine religious freedom at all – their real target is undermining LGBTI equality.

 

This is obviously a terrible provision in and of itself. It also sets a negative precedent for other laws.

 

After all, if civil celebrants – who are in reality a small business, offering commercial services to the public at large – are allowed to discriminate against their customers on the basis of the customer’s sexual orientation or gender identity, then why shouldn’t other businesses be allowed to do the same (a point that religious fundamentalists made frequently during the Ruddock Religious Freedom Review).

 

Indeed, that brings me to the third reason why we still don’t have genuine marriage equality in Australia.

 

Amidst all of the celebrations of the passage of same-sex marriage (and yes, as someone engaged to be married, I still think some celebration was justified), I wonder how many people understand that the following is now written into the Marriage Act:

 

47B Bodies established for religious purposes may refuse to make facilities available or provide goods or services

(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

(2) Subsection (1) applies to facilities made available, and goods or services provided, whether for payment or not.

(3) This section does not limit the grounds on which a body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage.

(4) To avoid doubt, a reference to a body established for religious purposes has the same meaning in this section as it has in section 37 of the Sex Discrimination Act 1984.

(5) For the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage [emphasis in original].

 

This is an incredibly broad exception, applying to anything provided by a religious organisation that has anything to do with a LGBTI wedding – even where it is provided by a service that advertises to the public at large and is run for profit.

 

The most generous interpretation of the inclusion of this amendment is that it merely replicates, and reinforces, the existing religious exceptions found in section 37(1)(d) of the Sex Discrimination Act 1984 (provisions which have come under scrutiny this week because they also allow discrimination by religious schools against LGBT students and teachers).

 

But, if that is the case, their inclusion in the Marriage Act is entirely unnecessary. And for a reform that has powerful symbolic value, what does it say about the passage of same-sex marriage that it was accompanied by these equally symbolic, but discriminatory, amendments.

 

On the other hand, it is arguable that the addition of section 47B has actually increased the range of circumstances in which religious organisations can discriminate against people on the basis of their sexual orientation or gender identity.

 

This is particularly the case in relation to Tasmania, where the Anti-Discrimination Act 1998 remains the best practice LGBTI discrimination law in Australia.

 

This is because the religious exceptions in section 47B of the Marriage Act 1961 are framed in a positive way (‘a body established for religious purposes may refuse…’), whereas the existing Sex Discrimination Act 1984 exceptions are phrased in a negative way (‘Nothing in Division 1 or 2 affects…’).

 

This is an important distinction because it is more likely that a positively-framed religious exception will override the anti-discrimination laws of jurisdictions which are inconsistent. In practice, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 has likely allowed new forms of discrimination in our most Southern state.

 

Even if that interpretation is incorrect, it should again be highlighted that this type of exclusionary provision was never needed to allow religious organisations to refuse to serve couples where one or both had previously been divorced, or where the couple had different religious backgrounds.

 

Section 47B was only introduced when LGBTI couples were allowed to walk down the aisle. It’s true purpose is to allow religious bodies – even where they are advertise to the public at large and are run for a profit – to tell same-sex couples to go somewhere else.[iv]

 

Perhaps the most disappointing part about the Marriage Amendment (Definition and Religious Freedoms) Act 2017 is that, despite being one of the worst marriage amendment Bills ever introduced into Commonwealth Parliament,[v] it was signed-off on by Australian Marriage Equality (AME), and the Equality Campaign, supposedly on behalf of the LGBTI community.

 

In the days after the announcement of the postal survey results, they presented Senator Dean Smith’s Bill as a fait accompli, arguing for its passage without calling for the removal of its unnecessary provisions regarding existing civil celebrants or wedding-related services, effectively making them accomplices to this new discrimination.

 

In my opinion, AME/The Equality Campaign were wrong to do so.

 

They were wrong on principle. As an organisation purporting to advocate for marriage equality, they should have been calling for genuine equality, not defending the inclusion of provisions that were never needed for anyone else, but were only introduced to target LGBTI Australians. Their acquiescence makes it harder to push for the removal of these provisions in the future.

 

They were wrong on strategy. The religious fundamentalists inside the Coalition Government were the ones who had pushed for the unnecessary, wasteful, harmful and divisive postal survey – and they lost, with the majority of Australians showing they supported the equal treatment of all couples, irrespective of sexual orientation, gender identity or sex characteristics.

 

That is what the LGBTI community should have been demanding: full equality and nothing less. If the Coalition Government refused to pass it because it did not include new rights to discriminate against LGBTI couples, even after imposing an unprecedented $80.5 million three-month national opinion poll, then they would have experienced the biggest of backlashes. It was not up to the LGBTI community to save the Government from itself.

 

And they were wrong on process, because they never secured the informed consent of the LGBTI community to these changes. They never explained, in detail, what had been given up and why, and they never asked lesbian, gay, bisexual, transgender and intersex (LGBTI) people whether it was a price they were prepared to pay.

 

Indeed, when other organisations like just.equal and PFLAG Australia did ask the community what they thought, the response was generally unequivocal – there must be no new discrimination.[vi] In the absence of other evidence, that is the position I think AME/The Equality Campaign should have adopted.[vii]

 

It is likely I will be criticised, possibly quite strongly, for writing this (and especially those last few paras). Many will argue that what’s done is done, and should therefore be left alone.

 

Maybe.

 

Except I would argue that what was done last year – the inclusion of new discriminatory provisions in the Marriage Act itself – needs to be undone.

 

In order to do so, we need to know what exactly is in the Act, and how and why it was included. And then we need to work out a strategy for ensuring sections 39DD(2) and 47B are removed from the statute books so that the stain of discrimination is washed clean, permanently.

 

Because for as long as any LGBTI couple is turned away by a homophobic or transphobic civil celebrant (calling themselves a ‘religious marriage celebrant’), and for as long as religious organisations enjoy special privileges to discriminate in the provision of wedding-related goods, services or facilities, then we don’t enjoy genuine marriage equality in Australia.

 

House of Reps Vote

The moment Commonwealth Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. It introduced same-sex marriage. But it isn’t marriage equality.

 

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

 

Footnotes:

[i] See the discussion of forced trans divorce below.

[ii] Legislation to abolish forced trans divorce – as well as making the inclusion of gender on birth certificates optional – has passed Tasmania’s Legislative Assembly, but it is unclear if or when it will pass the Legislative Council.

Legislation to abolish forced trans divorce passed Western Australia’s lower house in late 2018. It was finally passed by the Legislative Council on 12 February 2019, leaving Tasmania as the last state yet to abolish Forced Trans Divorce.

[iii] Authorised under section 47A:

Religious marriage celebrants may refuse to solemnise marriages

(1) A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part, if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage

Grounds for refusal not limited by this section

(2) This section does not limit the grounds on which a religious marriage celebrant may refuse to solemnise a marriage.

[iv] There is a fourth problem with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 and that is it reinforces the ability of defence force chaplains to discriminate in terms of which marriage ceremonies they will officiate. As outlined in section 81 of the Marriage Act 1961:

(2) A chaplain may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

(a) the refusal conforms to the doctrines, tenets or beliefs of the religion of the chaplain’s religious body of religious organisation;

(b) the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(c) the chaplain’s religious beliefs do not allow the chaplain to solemnise the marriage.

Grounds for refusal not limited by this section

(3) This section does not limit the grounds on which an authorised celebrant (including a chaplain) may refuse to solemnise a marriage.

This provision is offensive because military chaplains are public servants, paid for by the taxpayer (including of course LGBTI taxpayers), and obligated to serve all of the people supposedly under their pastoral care. They should be required to provide these services to all ADF personnel, irrespective of their sexual orientation or gender identity – and if they cannot, they should find another job.

On the other hand, it should be acknowledged that defence force chaplains already had the ability to determine who they performed marriages for (although the revised section 81 made this power even clearer) meaning it is somewhat distinct from the existing civil celebrant, and wedding-related services, religious exceptions, both of which are genuinely new ‘rights’ to discriminate.

[v] Perhaps equal worst with Liberal Democrat Senator David Leyonhjelm’s Freedom to Marry Bill 2014, which allowed all civil celebrants to turn away LGBTI couples, but which did not insert new general religious exceptions in the Marriage Act itself.

Liberal Senator James Paterson’s Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 – written in conjunction with the Australian Christian Lobby – was obviously far worse than both, but it was never formally introduced.

[vi] See the results of their November 2017 community survey here.

In particular:

  • 63.1% of respondents opposed the Smith Bill’s civil celebrant provisions
  • 86.9% opposed the wedding-related services exceptions, and
  • 77.4% opposed provisions allowing military chaplains to refuse to officiate the ceremonies of LGBTI ADF personnel.

Importantly, 53.7% of respondents indicated they were willing to wait until marriage equality could be achieved without such provisions (while only 27.9% were not willing to wait and 18.4% were neutral on this issue).

[vii] For more on these issues, see Rodney Croome’s excellent recent article in New Matilda, ‘Yes Yes No: Why the History of Marriage Equality Must be Told Accurately’.

Liberals Claiming Credit for Marriage Equality Can Get in the Bin

Next Thursday, 15 November, is the one-year anniversary of the announcement of the results of the same-sex marriage postal survey, in which 61.6% of Australians said yes to equality.

And December 7 will mark 12 months since the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which finally legalised same-sex marriage in this country.

With both milestones rapidly approaching, it is likely we will witness a large number of Liberal Party MPs and Senators try to claim credit for achieving marriage equality.

Indeed, now-former Prime Minister Malcolm Turnbull kicked off this predictable right-wing festival of self-congratulation on Thursday night’s QandA,[i] commenting that:

“You know, think of the big social reforms, legalising same-sex marriage. I mean, what a gigantic reform that was, I was able to do that … I legislated it, right? So I delivered it.”

This statement is about as far removed from the truth as the nonsense that emanates daily from Donald Trump’s twitter account.

Rather than ‘delivering’ this important reform, the Liberal Party was in fact the greatest obstacle standing between LGBTI Australians and the right to marry.

In case you disagree – or have forgotten the destructive role played by the Liberals on this issue over many years – here’s a reminder of what they actually did:

  1. The Liberal Party banned marriage equality in the first place

It was John Howard’s Liberal-National Government that prohibited same-sex marriage in August 2004.[ii] While this was prompted by couples who had wed overseas seeking recognition of their marriages under Australian law, it was primarily motivated by the desire to wedge the Labor Party on this issue ahead of the federal election later that year. Sadly it would not be the last time the Liberal Party played with the lives of LGBTI people for base political reasons.

  1. The Liberal Party refused to allow Australians to marry overseas

The Howard Liberal-National Government actually went further than merely refusing to recognise the marriages of couples who had wed overseas. They then refused to issue Certificates of No Impediment to Australians who wanted to get married in countries where it was legal, even where one member of the couple was from the other, more-progressive country. This was an incredibly petty and mean-spirited move.

Fun Fact: The Attorney-General who implemented this pathetic policy was the same person who led the recent Religious Freedom Review which recommended that religious schools continue to be allowed to discriminate against LGBT students and staff, one Philip Ruddock.

  1. The Liberal Party voted against marriage equality in September 2012

It took eight years before there was a genuine opportunity to repeal the Howard Liberal-National Government’s ban on same-sex marriage. In late 2012, Parliament voted on ALP MP Stephen Jones’ private members’ bill.

In line with the hard-fought, and hard-won, decision at its December 2011 National Conference, the Gillard Labor Government gave its members a conscience vote. The majority of ALP MPs and Senators voted in favour of marriage equality.[iii]

On the other hand, every single Liberal Party MP and Senator, bar one, voted against same-sex marriage. That includes then-Opposition Leader Tony Abbott, Malcolm Turnbull, Scott Morrison, George Brandis and Dean Smith. The only notable, and noble, exception was Queensland Senator Sue Boyce.

The Liberal Party cannot expect to be rewarded for the fact that same-sex marriage was legalised on December 2017 when they were the ones who stopped it from being passed more than five years earlier.

  1. The Liberal Party refused to hold a parliamentary vote on marriage equality

Following its election in September 2013, Tony Abbott’s Liberal-National Government simply refused to hold another ordinary parliamentary vote on same-sex marriage. This recalcitrant approach continued even after it became apparent the majority of MPs and Senators now supported marriage equality.

  1. The Liberal Party challenged the ACT’s same-sex marriage laws

While the Abbott Liberal-National Government did absolutely nothing to achieve marriage equality in Commonwealth Parliament, they did take action in at least one area: they challenged the validity of the recently-passed ACT Government’s same-sex marriage laws in the High Court.

In fact, this was one of the first things the newly-elected government did on any issue, full stop, revealing its fundamental priority was to stop marriage equality in any way possible.

This challenge was ultimately successful, meaning that the marriages of 31 couples were effectively annulled.

Fun Fact: The Attorney-General who instigated this High Court challenge, that overturned the marriages of 62 people who his own Government would not allow to marry because of their sexual orientation and/or gender identity, would later claim that marriage equality was one of his, and his Government’s, greatest achievements, one George Brandis.

  1. The Liberal Party proposed an unnecessary, wasteful, harmful and divisive plebiscite

In August 2015, with public support for marriage equality continuing to build, and the Abbott Liberal-National Government under mounting pressure to finally do something on this topic, they chose not to do the one thing that would actually resolve it (hold a parliamentary vote).

Instead, after a six-hour joint party-room meeting, they proposed a same-sex marriage plebiscite. Despite changing leaders the following month, new-Prime Minister Malcolm Turnbull continued to support this policy, including in the lead-up to the 2016 Federal election and beyond.

A plebiscite like this was essentially unprecedented – there had been only one plebiscite in the previous 98 years, and that was on the national anthem. It was unnecessary, and – at an estimated cost of $158.4 million – it was fundamentally wasteful too. LGBTI Australians also justifiably feared that, subjecting our relationships and rights to months of public debate would be incredibly divisive, and cause significant harm to the most vulnerable members of our community.

It should be remembered that the idea for a plebiscite was only being pushed by those who opposed marriage equality, including Abbott himself, the Australian Christian Lobby and other religious extremists. It was never designed with the best interests of the LGBTI community in mind.

  1. The Liberal Party held an unnecessary, wasteful, harmful and divisive postal survey

After months of intense lobbying by LGBTI community advocates and organisations, the ALP, Greens and members of the cross-bench rejected the Turnbull Liberal-National Government’s plebiscite in the Senate in October 2016.

Despite this, Prime Minister Turnbull and the Coalition still refused to hold a straight-forward parliamentary vote. Instead, in August 2017 they proposed a same-sex marriage ‘postal survey’.

This was even more unprecedented, and was an abuse of the power of the Australian Bureau of Statistics’ power to collect, well, statistics. Despite the fact the High Court found it was technically lawful, it could at best be described as ethically dodgy, and at worst a perversion of Australian democracy.

Like the plebiscite, the postal survey was entirely unnecessary, and completely wasteful, ultimately costing taxpayers $80.5 million. And for LGBTI Australians and rainbow families its impact was exactly as bad as anticipated, unleashing a torrent of homophobia and transphobia, with the worst attacks of the bigoted No campaign reserved for trans and gender diverse young people.

Of course, the architects of the postal survey didn’t care about this negative outcome. Because the postal survey was never about us. It was put forward as a quick political fix for the Liberal Party, who knew they couldn’t continue to oppose marriage equality in the lead-up to the 2019 Federal election, but whose homophobic party-room members refused to hold a parliamentary vote without conducting a costly (in multiple senses of the word) public debate beforehand.

And if you disagree with this analysis, perhaps you’ve forgotten whose idea the postal survey was, one Peter Dutton.

  1. The Liberal Party didn’t actually pass marriage equality

This point might sound strange (especially to new readers of this blog), but it is an important one to make. Because while Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 finally granted same-sex and gender diverse[iv] couples the right to marry, it did not deliver true equality.

A hint lies in the title. This legislation did not just amend the Marriage Act 1961 to ensure marriage was available to all couples, it also added new rights for individuals and organisations to discriminate against LGBTI couples on the basis of religious prejudice.

This included permitting existing civil celebrants to register as ‘religious marriage celebrants’ and consequently putting up signs saying ‘no gays allowed’. These are not ministers of religion, and the ceremonies they conduct are not religious. But the law, as passed, allows these individuals to discriminate on the basis of their homophobia and transphobia.

Smith’s Marriage Amendment (Definition and Religious Freedoms) Act also introduced offensive provisions allowing discrimination by religious organisations in the Marriage Act itself. This includes section 47B:

A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Similar provisions allowing discrimination by religious organisations already existed in the Commonwealth Sex Discrimination Act 1984, so at best they were unnecessary here. At worst, because this amendment was phrased as a ‘positive right’, this allows new discrimination, in particular because it is more likely to overrule the better anti-discrimination laws of some states and territories (especially Tasmania’s Anti-Discrimination Act 1998).

It should be noted that these discriminatory provisions were not previously required with respect to divorced people remarrying – another issue on which there are strong religious beliefs. The fact they were introduced last year reveals they were motivated not by so-called ‘religious freedom’, but by homophobia and transphobia masked in that language.

By introducing new forms of discrimination, Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Act 2017 delivered same-sex marriage, but it most definitely did not achieve marriage equality.[v]

  1. The majority of Liberal Party MPs and Senators voted for even more discrimination

Despite the fact the Smith Bill did not deliver equality to begin with, the majority of Liberal Party MPs and Senators voted in favour of at least some (and in some cases all) of the amendments that would have allowed even more discrimination against LGBTI couples.[vi] The only reason these were defeated was because all ALP and Greens MPs and Senators opposed them, alongside a small minority of Coalition parliamentarians.

These (thankfully rejected) amendments included granting individuals the right to discriminate in the provision of goods and services on the basis of their ‘religious marriage beliefs’, as well as personal views that same-sex relationships are wrong, or that trans people don’t exist.

The then-Attorney-General, George Brandis, even tried to incorporate Article 18 of the International Covenant of Civil and Political Rights into the Marriage Act 1961 (through an amendment that ‘Nothing in this Act limits or derogates from the right of any person, in a lawful manner, to manifest his or her religion or belief in worship, observance, practice and teaching’) while conveniently ignoring the limitation in Article 18(3): that religious freedom can be limited to protect the fundamental rights and freedoms of others (including the right to non-discrimination). Oh, and he moved an amendment that all civil celebrants should be able to discriminate against LGBTI couples because of their personal religious or conscientious beliefs.

It is offensive for Liberals to now claim credit for delivering marriage equality when the majority of them voted for it not to be equal.

Fun Fact: Our new Prime Minister, Scott Morrison, voted for every amendment in the House of Representatives that sought to increase discrimination against LGBTI couples. This included supporting having two different definitions of marriage (one for ‘traditional marriage’ – the union of a man and a woman to the exclusion of all others, voluntarily entered into for life – and one for everybody else – the union of 2 people to the exclusion of all others, voluntarily entered into for life). He also introduced his own amendments to the Bill, which included protecting individuals who discriminate against others because of transphobic beliefs that ‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth’. He might now be Leader of the country, but with views like that he’ll never be a true leader.

  1. Even after the postal survey, a significant minority of Liberal Party MPs and Senators voted against same-sex marriage

The Liberal Party banned marriage equality in 2004. They voted against it in September 2012. They refused to hold a simple parliamentary vote following their election in 2013. They tried and failed to hold a plebiscite in 2016. They ‘succeeded’ in holding a postal survey in 2017, in which more than three-in-five Australians said yes to equality.

After forcing us wait for 13 years, and making us jump through hoops that no other group in Australia has ever had to before (and hopefully none will have to again), a significant minority of Liberal MPs and Senators still couldn’t bring themselves to vote for the ability of all couples to marry, irrespective of sexual orientation or gender identity.

In the Senate, Liberals Concetta Fierravanti-Wells, Eric Abetz and Slade Brockman, and Nationals John Williams, Matt Canavan and Barry O’Sullivan, voted no. While Liberal Senators Michaelia Cash, David Fawcett, James McGrath and Zed Seselja, and National Bridget McKenzie, all abstained.

In the House of Representatives, Liberal Russell Broadbent, and Nationals Keith Pitt and David Littleproud, voted no. Whereas Liberals (ex-PM) Tony Abbott, Andrew Hastie, Michael Sukkar, Kevin Andrews, (now-PM) Scott Morrison, Rick Wilson, Stuart Robert and Bert van Manen, and Nationals Barnaby Joyce and George Christensen, all abstained.

After subjecting LGBTI Australians to an unnecessary, wasteful, divisive and harmful postal survey because of their own internal political divisions, the fact that these 24 Liberal and National MPs could not even respect its outcome by voting yes in parliament shows the absolute contempt that they hold for us and our relationships. Their disgusting behaviour should not be forgiven nor forgotten.

**********

These ten points unequivocally demonstrate that same-sex marriage was achieved in Australia in spite of the Liberal Party, not because of them.

So, in the coming weeks, if any Liberal MP or Senator tries to claim credit for achieving marriage equality, tell them to get in the bin.

Because that is where such garbage claims belong.

Turnbull-on-QA

Former Prime Minister Turnbull on QandA, where he tried to claim credit for marriage equality. Hey Malcolm, Get in the Bin.

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

Footnotes:

[i] Not that I was watching: I was not interested in hearing from the fakest of fake (self-declared) friends of the LGBTI community. This quote is from a transcript in CrikeyWorm.

[ii] Yes, this was done with the support of the then-Latham (!) Opposition, a move that also warrants criticism – but Labor will not be the ones falsely claiming credit for marriage equality in the coming weeks.

[iii] Of course, then-Prime Minister Julia Gillard voted against equality, something for which she should be forever condemned.

[iv] Although trans and gender diverse people are still waiting for forced trans divorce laws to be repealed in some jurisdictions (noting that if they are not repealed by 9 December 2018 the Commonwealth Sex Discrimination Act 1984 will overrule them).

[v] There is a second, more technical, argument why the Liberal Party didn’t actually pass marriage equality. That is because the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was a private members’ bill. It was not Government legislation, so its passage cannot be claimed as an achievement of the Liberal-National Government. Indeed, as a private members’ bill, more ALP MPs and Senators voted for it than Liberal and National ones.

[vi] This includes then-Prime Minister Malcolm Turnbull, who voted for three different sets of amendments increasing discrimination against LGBTI couples, while abstaining on the others.

Genderless (Notices of Intended) Marriage

The Commonwealth Attorney-General’s Department is currently consulting about the Notice of Intended Marriage form. Submissions close today, 28 October 2018 (for more information, click here). Here’s mine:

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

 

Sunday 28 October 2018

 

To whom it may concern

 

Notice of Intended Marriage Consultation

 

Thank you for the opportunity to provide a submission to this consultation.

 

My comments relate to only one section of the revised Notice of Intended Marriage form, and that is:

 

  1. Gender (optional) Male, Female or Non-Binary.

 

This is required to be completed for both parties to an intended marriage.

 

The inclusion of this question is entirely unnecessary and it should be removed.

 

It is unnecessary because, following the Marriage Amendment (Definition and Religious Freedoms) Act 2017, there is generally no gender (or sex) based restriction on whether couples are able to lawfully marry.

 

This status will be reinforced on December 9 this year when, for those states and territories that have yet to abolish forced trans divorce, the exception provided by the Commonwealth Sex Discrimination Act 1984 to permit this unjustifiable discrimination will expire.

 

This question is also unnecessary to establish identity, which is proved by name, date and place of birth and the requirement to supply identity documentation on the subsequent page of the form. Logically, it is clearly unnecessary to prove identity it if answering is optional.

 

It should be removed because of the growing recognition of, and respect for, the full diversity of the Australian community, particularly in terms of sex, sex characteristics and gender identity.

 

As a cisgender gay man and LGBTI advocate I acknowledge the advice of trans, gender diverse and intersex individuals and organisations that, in order to be fully inclusive of their diversity, requests for information about sex and/or gender should only be included if they can be shown to serve a valid purpose.[i]

 

I can see no such purpose in this instance.

 

Recommendation 1: Question 3 of the Notice of Intended Marriage form should be removed.

 

If the above recommendation is not agreed, then it is my strong view this question should remain optional.

 

Further, given the question serves no valid purpose (in terms of determining whether a person is eligible to marry, or in verifying their legal identity) I suggest that the current three options of Male, Female and Non-Binary be removed. Instead it should simply state:

 

Gender (optional), please specify

 

This should be a write-in box, and have no other prompts for information. Amending the question in this way would allow people to enter their own gender identity, including those who may not identify with any of Male, Female, or Non-Binary.

 

Recommendation 2: If question 3 is retained, it must continue to be optional, and should ask for Gender, please specify, followed by a write-in box.

 

With the passage of last year’s amendments to the Marriage Act 1961, and the imminent abolition of forced trans divorce, marriage in Australia will shortly be available to all couples, irrespective of sex, sex characteristics, sexual orientation and gender identity.

 

That is what 61.6% of Australians said yes to (in the Liberal-National Government’s unnecessary, wasteful, divisive and harmful postal survey).

 

This equality-of-access should be reflected in the Notice of Intended Marriage form, by removing the optional question that asks for the gender of the participants, because it is no longer relevant in 2018.

 

Please do not hesitate to contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

images-1

 

Footnotes:

[i] See for example article 8 of the 2017 Darlington Statement of intersex advocates from Australia and Aoteoroa/New Zealand, which includes:

“Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications, but to end legal classification systems and the hierarchies that lie behind them. Therefore:

  1. a) As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody” (emphasis in original).

Why we should say ‘I don’t’ to religious exceptions for civil celebrants

The issue of marriage equality will be decided by Commonwealth Parliament in the next fortnight, first in the Senate (from Monday 27 November) and then, assuming it clears the upper house, in the House of Representatives (from Monday 4 December).

 

The ‘starting point’, problematic though it may be, is Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017. Although what this legislation looks like by the end of this process remains unpredictable.

 

That’s because a wide variety of Coalition MPs are likely to put forward an even more diverse range of amendments. In this post I will discuss just one, already foreshadowed by Senator George Brandis: to provide all civil celebrants with the ability to discriminate on the basis of their personal religious or conscientious beliefs.[i]

 

I do so because, at this stage, this amendment seems to have a better chance of being successful – in part because of who is proposing it (the Attorney-General, a supposed ‘moderate’ within the Government) and also because it is marginally less extreme than some of the other changes flagged by people like James Paterson, Scott Morrison and Peter Dutton.

 

I don’t, however, support Senator Brandis’ amendment, for the following reasons:

 

  1. Civil wedding ceremonies are not religious. Indeed they were explicitly created as an alternative to religious ceremonies – and are now a very popular alternative, accounting for 3-in-4 weddings in Australia in 2015. If the wedding itself is not religious, surely the religious beliefs of the person officiating it are irrelevant.

 

  1. The ability to discriminate does not currently exist. There are a wide range of religious beliefs around marriage, including people who don’t support marriages between people of different faiths, while others don’t believe in divorce and remarriage. And yet, civil celebrants do not enjoy a special privilege to discriminate for these reasons. That it is being contemplated now, when LGBTI Australians might finally be able to wed, reveals that such an amendment is fundamentally homophobic.

 

  1. Civil celebrants are performing a duty on behalf of the state. Only people who are formally registered are given the legal authority to officiate marriage ceremonies – their role is regulated by, and delegated by, the Commonwealth Government. If the Government is not able to discriminate on the basis of sexual orientation, gender identity or intersex status, then nor should people who are fulfilling a secular function on its behalf.

 

Some people do not accept this characterisation, instead asserting civil celebrants are more akin to small business owners. But even on this theoretical foundation, there is absolutely no basis to provide them with special privileges to discriminate against LGBTI couples (or any other couples for that matter):

 

  1. Commercial businesses should not be able to discriminate on the basis of personal religious or conscientious beliefs. They cannot be allowed to hang signs in their windows – real, or online – saying ‘no gays allowed’. In 2017, it feels strange to actually have to put that down in black and white, but it is the inevitable consequence of Senator Brandis’ proposal. And others within the Turnbull Government would go even further (with Kevin Andrews arguing Jewish bakers should be able to refuse Muslim customers, and vice versa).

 

  1. If civil celebrants are allowed to discriminate, it is difficult to withhold this privilege from other wedding-related businesses. While some claim civil celebrants play such a central role in weddings they alone should be able to discriminate, philosophically it is hard to distinguish their position from others closely involved in the same ceremonies (including photographers, wedding venue-providers and even florists). If the former is permitted to reject couples on the basis of personal prejudice, why not the latter? By opening the door to civil celebrants, we may end up inadvertently allowing plenty of others to walk through – when all should be kept outside.

 

  1. Allowing civil celebrants to discriminate creates a terrible precedent for anti-discrimination law in Australia. Currently, the Commonwealth Sex Discrimination Act, and most state and territory anti-discrimination laws, only permit religious organisations to discriminate against LGBT people. They do not provide the same special privileges to individuals. The Australian Christian Lobby desperately wants an individual ‘freedom to discriminate’ against people on the basis of sexual orientation, gender identity or intersex status. By granting this ability to civil celebrants in the Marriage Act, a change that may seem small to many, we would actually be handing Lyle Shelton a large victory, and an invaluable tool in his ongoing campaign against LGBTI equality.

 

For all of these reasons, I think that anyone who supports genuine marriage equality – including the LGBTI community, our families, friends and allies, and the 61.6% of the population who voted Yes – should say ‘I don’t’ to religious exceptions for civil celebrants.

 

**********

 

It would, however, be remiss of me not to address an argument that is commonly used to support such special privileges, one that is advanced even by some within the LGBTI community itself. That is the view that ‘why would couples want to be married by someone who disagrees with their relationship?’

 

The answer, of course, is that the vast majority of couples do not (although some, especially in rural and regional areas, may have few other options).

 

But, with all due respect to the people making this case, so what? That response doesn’t actually deal with the substantive issue at hand, and completely misunderstands the essential role of anti-discrimination law.

 

To see why, let’s apply the same question to other scenarios: Why would anyone want the florist for their wedding to be prejudiced against LGBTI people? The (now clichéd) baker? The wedding venue-provider?

 

Why would an LGBTI couple want to spend their honeymoon at a hotel where the proprietor disagrees with their relationship? Or to celebrate their anniversary at a restaurant whose owner is homophobic, biphobic, transphobic or intersexphobic?

 

Why would a lesbian, gay, bisexual, transgender or intersex employee want to work for an anti-LGBTI employer?

 

The answer, again, is that most LGBTI people do not want to find themselves in any of these circumstances. But, for a variety of reasons (including the impact of historical discrimination, ongoing homophobic attitudes in society-at-large, and differences in power and privilege) plenty of people do – and that is the reason we have anti-discrimination laws in the first place.

 

The Sex Discrimination Act, and its state and territory equivalents, operate to protect vulnerable groups against adverse treatment, wherever it occurs: the provision of goods and services, education, employment and other areas of public life. That obviously covers civil celebrants offering their services to the public, too.

 

In amending the Marriage Act, we should not support anything that undermines these vital anti-discrimination protections. By conceding that discrimination by civil celebrants should be allowed, by effectively ‘picking and choosing’ when anti-LGBTI prejudice is made lawful, we would be doing exactly that.

 

Once this broader principle of anti-discrimination has been sacrificed, our opponents will stake their claims for ever-widening ‘freedoms to discriminate’. Indeed, Liberal Democrat Senator David Leyonhjelm has already circulated amendments to the Smith Bill that would make it entirely legal to discriminate against LGBTI couples in providing goods, services or facilities in relation to:

“(a) the solemnisation of a marriage under the Marriage Act 1961; or

(b) the preparation for, or celebration of, such a marriage; or

(c) the preparation for, or celebration of, events associated with such a marriage, including:

(i) an event announcing or celebrating the engagement of the parties to be married; and

(ii) an event celebrating the anniversary of the marriage.”

 

No doubt other conservative MPs and Senators will move their own amendments in the course of parliamentary debate, some perhaps more expansive, and even worse, than these.

 

They must, of course, be rejected – for exactly the same reasons that we must reject Senator Brandis’ amendment concerning civil celebrants. Because lesbian, gay, bisexual, transgender and intersex Australians should not be discriminated against in any area of public life. No exceptions.

 

If you agree, please take two minutes to write to Commonwealth MPs and Senators to let them know that #equalmeansequal, and that there should be ‘No compromise on equality’ (click here).

 

**********

 

One final point before I conclude. By now, I have hopefully convinced you to say ‘I don’t’ to Senator Brandis’ amendment to create religious exceptions for civil celebrants.

 

If that is the case, then logically you should also say ‘I don’t’ to the Smith Bill itself – because all of the above arguments can also be made against sub-section 39DD(2), which would allow existing civil celebrants to nominate to become ‘religious marriage celebrants’, and discriminate against LGBTI couples, based on nothing more than their personal religious beliefs.

 

That’s why I and others have argued passionately that the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, as it currently stands, does not offer genuine marriage equality. And why we should be pressuring Labor, the Greens and anyone else who claims to support LGBTI equality to amend that legislation to remove such discriminatory provisions.

 

I guess we’ll all find out in the coming fortnight how real their commitment to equality actually is.

 

George Brandis 25

Attorney-General George Brandis, who is proposing religious exceptions for civil celebrants.

 

Footnotes:

[i] Interestingly, Senator Brandis is doing so even though civil celebrants themselves do no support such an amendment. As reported this week in the Sydney Morning Herald , Dorothy Harrison, the chair of the Coalition of Celebrant Associations, said: “We don’t approve of exemptions. We feel that if that’s the law of the country, then that’s what you do. We have discrimination laws and we have to live by them.”

Bill Shorten, It’s time to honour your commitment on marriage equality

The following is my open letter to Opposition Leader Bill Shorten, ahead of the announcement of the postal survey result this Wednesday (15 November) and likely subsequent parliamentary consideration of marriage equality legislation:

 

**********

 

On 31 March 2016, you attended a panel event called ‘Why Knot?’ in Redfern, co-hosted by the Guardian Australia and Australian Marriage Equality.

 

At the end of that forum, during the Q&A session, I asked you the following question:

 

“There is a real risk that, when Malcolm Turnbull finally gets around to drafting it, his Marriage Amendment Bill will seek to include new special rights for civil celebrants and other wedding business-providers to discriminate against LGBTI couples. Just to get it on the record: Mr Shorten, will you commit the Labor Party to voting against any attempts to expand religious exceptions beyond existing provisions and, if they do somehow end up being passed and polluting the Marriage Act, will you seek to repeal them at the earliest available opportunity?”[i]

 

Your answer: “Yes, and yes.”

 

As reported by the Guardian, you went on to state: “It’s not allowed under the current law – why would we water down existing laws? We don’t need to water down anti-discrimination law to keep some people [who oppose same-sex marriage] happy.”

 

You were right then.

 

You were right because this reform, marriage equality, is about removing discrimination against people on the basis of their sexual orientation, gender identity or sex characteristics. One form of discrimination should not simply be replaced by another.

 

You were right because protections for ‘religious freedom’ that are only introduced when LGBTI couples might finally have the opportunity to wed should be seen for what they are: attempts to legitimise homophobia, biphobia and transphobia.

 

You were right because the vast majority of LGBTIQ Australians do not want our long desired, long fought for and long overdue equal right to marry undermined by new special privileges to discriminate against us – with research at the start of 2017 confirming that:

 

“81% of the 6,352 LGBTIQ adult Australians taking part in this survey were strongly opposed to potential new laws making it legal for individuals and organisations to refuse their services to same-sex couples, based on personal conscience or religious belief.”

 

And you were right because four-in-five Australians agree, with a poll earlier this month reporting that:

 

“In response to the question, ‘If the majority vote ‘yes’ in the postal survey, should same-sex couples be treated the same under the law compared with other couples?’, 78% of respondents said yes. This figure consisted of 98% of respondents who said they had voted ‘yes’, and also 43% of those who said they had voted ‘no’.”

 

You were right then. Are you still right now? Specifically, will you, and the Labor Party, do the right thing when marriage equality legislation is likely considered by Commonwealth Parliament in the coming weeks and months?

 

I ask this question because I am extremely disappointed by reports that the Labor Caucus has already decided to support Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017, describing it as an ‘acceptable compromise’.

 

This is despite the fact his draft legislation:

 

  • Permits existing civil celebrants to discriminate against LGBTI couples by nominating to become ‘religious marriage celebrants’ based on nothing more than their personal beliefs [section 39DD(2)], and
  • Unnecessarily duplicates exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples [section 47B].

 

Both of these provisions appear to be matters you either explicitly or implicitly rejected in your answer at that forum in Redfern just over 19 months ago.

 

I urge you to reconsider your, and your Party’s, position on the Smith Bill, not just because of your previous commitment to me and to that audience, but also because of the principle that marriage equality should be exactly that: equal. The weddings of LGBTI Australians, when they are finally made legal, must not be subject to any extra terms and conditions than those that already exist.

 

At the very least, I believe you should develop amendments to remove both of the above provisions from the Smith Bill prior to its potential passage.

 

I am sure you are also aware of reports that conservatives within the Liberal and National Parties are busy preparing their own amendments to the Smith Bill that would extend discrimination against lesbian, gay, bisexual, transgender and intersex people across a wide range of areas of public life.

 

It is incumbent upon you, and every member of the parliamentary Labor Party, to vote against every amendment that seeks to perpetuate the second-class treatment of LGBTI Australians, our relationships and our families.

 

In this context, the debate around marriage equality legislation will be an opportunity for you to show, once again, the leadership on this issue that Prime Minister Malcolm Turnbull will not.

 

You stood with the LGBTI community against the unnecessary, wasteful and divisive plebiscite in October 2016.

 

You stood with the LGBTI community again, earlier this year, against the equally unnecessary, wasteful and divisive (and arguably illegitimate) postal survey.

 

When the survey went ahead, you stood with the LGBTI community a third time by campaigning to help win the public vote.

 

Please stand with us now by voting to ensure any Bill that is passed represents genuine marriage equality, not just same-sex marriage subject to additional discrimination.

 

It’s time to honour your commitment, to me, to LGBTI Australians, and to every person who has voted Yes to the equal treatment of equal love.

 

Sincerely,

Alastair Lawrie

 

Bill Shorten Commitment

Will Opposition Leader Bill Shorten support genuine marriage equality?

Footnotes:

[i] I recorded the question shortly thereafter – and published it in April 2016 in the following article: In the battle for marriage equality, we must not forget to fight against religious exceptions.

The push for new exceptions in the Marriage Act is homophobic. Here’s why.

Voting in the same-sex marriage postal survey has now closed. Based on the widely-held assumption that the majority of Australians have voted Yes, discussion has now turned to what amendments will be made to the Marriage Act to implement this outcome.

 

Conservatives who have opposed marriage equality throughout this process, including the Australian Christian Lobby and many Liberal and National Party MPs and Senators, are now arguing that any change to the law must include new exceptions providing a broad range of special privileges to discriminate against LGBTI couples.

 

As WA Liberal MP Ian Goodenough has publicly acknowledged: “[t]he focus will be in the area of preserving parental rights, freedom of speech, and institutional considerations such as curriculum in schools, access to reproductive technology, correctional facilities, etc…”

 

This is on top of those new exceptions already included in Liberal Senator Dean Smith’s Marriage Amendment (Definition and Religious Freedom) Bill 2017, which, as I have written elsewhere, would:

 

  • Permit existing civil celebrants to nominate to become ‘religious marriage celebrants’ so they can avoid marrying LGBTI couples,
  • Duplicate exceptions from the Sex Discrimination Act within the Marriage Act itself, allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away LGBTI couples, and
  • Reinforce the ability of military chaplains, who are public servants, paid for with taxpayers’ money, to refuse to perform the marriage ceremonies of LGBTI personnel serving within the ADF.[i]

 

The supposed justification for these new exceptions? That they are essential to protect the ‘religious freedom’ of people who object to marriage equality on the basis of their personal faith.

 

Which is, to put it bluntly, bollocks.

 

The coordinated campaign for new exceptions in the Marriage Act has very little to do with ‘religious freedom’. This push is primarily, almost exclusively, about legitimising homophobia, biphobia and transphobia.

 

This motivation can be seen through one simple comparison – how the Marriage Act has treated divorced couples remarrying over the past four decades versus how conservatives are proposing LGBTI couples should be treated now.

 

After all, there are a variety of religious beliefs about divorce and remarriage, just as there is a range of religious perspectives about marriage equality. The single largest religious organisation in Australia – the Catholic Church – remains staunchly opposed to both. Other faith groups support both.

 

So, if there are individuals and groups with strong views about, specifically against, divorce and remarriage, surely the Marriage Act will already contain special privileges allowing discrimination against people having second, or subsequent, weddings?

 

Well, no actually.

 

Even following the introduction of ‘no fault’ divorce as part of the Family Law Act reforms in 1975, the Marriage Act was not amended to provide civil celebrants with the ability to discriminate against people remarrying. Nor were military chaplains given ‘strengthened’ powers to refuse to perform the marriage ceremonies of ADF personnel tying the knot for the second time.

 

The inconsistent treatment of divorced people remarrying and LGBTI couples is demonstrated even more powerfully by considering the introduction of the Sex Discrimination Act 1984.

 

As well as prohibiting discrimination on the basis of sex, from its very beginning this legislation has protected people against discrimination on the basis of their ‘marital status’, an attribute that was originally defined as:

 

“the status or condition of being-

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

(f) the de facto spouse of another person…” [emphasis added].

 

Discrimination on the basis of ‘marital or relationship status’ remains prohibited under the Sex Discrimination Act today.

 

Which means that, for 33 years, the Marriage Act has happily coexisted with legislation that prohibits discrimination against divorced people remarrying – including discrimination by civil celebrants.

 

For 33 years, there has apparently not been a need to duplicate exceptions from the Sex Discrimination Act within the Marriage Act allowing religious bodies that offer wedding-related facilities, goods and services to the public to turn away couples wishing to remarry.

 

For 33 years, there has been no massive campaign to ‘preserve parental rights, freedom of speech, and institutional considerations such as curriculum in schools’ about divorce and remarriage.

 

At no point during this time, not when marriage equality was originally banned by the Howard Government in August 2004, or even when the same Government had a majority in both houses of parliament between 2005 and 2007, has there been a concerted push to amend the Marriage Act to protect the ‘religious freedom’ of people who object to divorce and remarriage on the basis of their personal faith.

 

So, why now? If it was not necessary to protect ‘religious freedom’ following the introduction of no fault divorce more than four decades ago, nor at any point since the prohibition of discrimination on the basis of marital status more than three decades ago, why is it suddenly necessary to defend ‘religious freedom’ today?

 

The logical conclusion – in my view, the only possible conclusion – is that the changes being put forward, in Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill, and by others like his Coalition colleague Ian Goodenough, are not actually about religious freedom at all.

 

If these amendments are only being put forward now that lesbian, gay, bisexual, transgender and intersex Australians might finally have the opportunity to legally marry, then their intended purpose appears to be: to legitimise discrimination against LGBTI couples.

 

These provisions are inherently homophobic. And biphobic. And transphobic, too.

 

People arguing for ever-widening exceptions in the Marriage Act can dress their proposals up in all the fine language they want. But they cannot hide the naked truth: such amendments are just homophobia in a fancy frock.

 

It is simply not good enough for the long desired, long fought for, and long overdue introduction of marriage equality to be undermined by the inclusion of religious exceptions that will, in practice, perpetuate discrimination against LGBTI couples.

 

Equal should mean equal – and that means LGBTI couples marrying in the future should be treated exactly the same as divorced people remarrying are now.

 

Goodenough

Liberal MP Ian Goodenough, whose proposed amendments to the Marriage Act are definitely not good enough for LGBTI Australians.

 

Footnotes:

[i] It should be noted that Smith’s Bill also permits increased, or strengthened, discrimination against other groups, including divorced people remarrying. This is to avoid criticisms of Senator Brandis’ 2016 Exposure Draft Marriage Amendment (Same-Sex Marriage) Bill, which explicitly discriminated against same-sex couples. It is unlikely that many divorced Australians understand they could theoretically be discriminated against as a result of the Smith Bill. Then again, they probably shouldn’t worry too much – the timing of the introduction of these amendments, and the public debate surrounding them, confirm that LGBTI Australians are the real target.

Wedding Dates and Mandates

Centennial-Park heart

Centennial Park, Sydney.

 

A couple of weeks ago, my fiancé Steven and I were walking around Centennial Park in Sydney when we started discussing possible wedding dates.

 

That shouldn’t be remarkable: an engaged couple talking about the timing of their nuptials. Except it was probably the first time in about five years that we seriously considered when and where we might hold our ceremony.

 

The previous conversation coincided with the last proper vote on marriage equality in Commonwealth Parliament – way back in September 2012. But now, with the same-sex marriage postal survey drawing to a close, there is a real prospect that marriage equality might finally become law in the months ahead.

 

Of course, there are some major hurdles still to overcome before Steven and I start booking venues and sending out save-the-date cards.

 

The first, and most obvious, hurdle is that the Australian Bureau of Statistics must announce a majority Yes result at 10am on Wednesday 15 November, just ten days from now.

 

Assuming that outcome is favourable, the second hurdle is for our 226 parliamentarians to pass legislation to respect the wishes of the Australian population.

 

That part should be relatively straight-forward – amending the Marriage Act to make the definition of marriage inclusive of LGBTI couples, and to recognise the marriages of thousands of couples that already exist.

 

But it is highly likely the debate around what should be included in, and excluded from, a marriage equality bill will be just as divisive as the postal survey that preceded it, if not more so.

 

That is because the same groups who have steadfastly opposed the equal recognition of LGBTI relationships, including the Australian Christian Lobby and conservatives within the Coalition, are now arguing that any bill to introduce marriage equality must be weighed down by new special privileges allowing discrimination against us across multiple spheres of public life.

 

As reported by news.com.au these changes: “could include lessening hate speech laws, axing legislation that gives same-sex parents the same rights as straight parents, barring gay couples from accessing IVF and allowing parents to remove kids from any school lesson that even fleetingly mentions gay people. There is also the prospect of businesses being given the green light to refuse to serve anyone who is gay, not just those organising same-sex weddings.”

 

The introduction of such amendments would fundamentally alter the purpose of the legislation being debated. It would no longer be a marriage equality bill, it would instead be a bill to promote discrimination against LGBTI Australians, where expanding the right to marry would be purely incidental.

 

Obviously, these changes must be resisted, and resisted strongly, which means it will once again fall to LGBTI Australians, and our allies, to argue for the equal treatment of our relationships.

 

Once again, we have the arguments on our side. From the principle that secular law should not discriminate against people on the basis of their sexual orientation, gender identity or sex characteristics, to the ideal of a fair go which means one form of discrimination should not simply be replaced by another.

 

We must also highlight the inconsistency of those claiming these rights to discriminate are necessary to protect ‘religious freedom’ – if they have not historically been required to allow discrimination against divorced couples remarrying, they are not necessary to permit discrimination against same-sex couples now.

 

But there is another argument against the introduction of these new special privileges to discriminate that I would like to talk about, and that is the theory of political mandates (I know, I know, this is far less romantic than discussing possible wedding dates, but please hear me out).

 

For those who don’t know, a mandate is defined as ‘the authority to carry out a policy, regarded as given by the electorate.’

 

In this case, the Australian electorate has just participated in a $122 million, three month long, nation-wide postal survey to determine whether it supports same-sex marriage. If the result is Yes, as is widely-expected, what does that mean for the ‘mandate’ of the Government, and the Parliament more broadly?

 

  1. There is a mandate for same-sex marriage

 

The first, and least controversial, outcome is that, if the population has voted yes, there is a clear mandate for Parliament to introduce amendments that allow all lesbian, gay, bisexual, transgender and intersex Australians to marry. Not even Lyle Shelton could argue against that (well, he might try, but should be ignored).

 

  1. There is no mandate for new special privileges to discriminate against same-sex couples

 

On the other hand, a Yes vote does not provide the Government or Parliament with a mandate to introduce new special privileges allowing individuals and organisations to discriminate against LGBTI couples.

 

Why? Because of the question that Australians were asked to answer: ‘Should the law be changed to allow same-sex couples to marry?’

 

What is not there is just as important as what is. There were no asterisks at the end of the question, no footnotes on the survey form saying ‘different terms and conditions apply’.

 

Nor were there any extra clauses – it did not ask whether the law should be changed to allow same-sex couples to marry subject to additional rights to discriminate against them.

 

The absence of asterisks, terms and conditions or extra clauses on the postal survey question means Parliament does not have a mandate to introduce asterisks, terms and conditions or extra clauses to our equality in the Marriage Act.

 

Indeed, this point was (inadvertently) conceded by former Prime Minister John Howard in September, when he called for current Prime Minister Malcolm Turnbull to release details of the Bill it would put forward in the event of a Yes vote:

 

“On the evidence to date, it would seem that the only protections in that bill will not go much beyond stipulations that no minister, priest, rabbi or imam will be compelled to perform a same-sex marriage ceremony… It is precisely because parliament should reflect the will of the people that the people are entitled to know what, if anything, the government will do on protections before they vote.”

 

The fact the Turnbull Government did not put forward any official legislation means, by Howard’s own rationale, it does not have a mandate to introduce new special privileges to discriminate against LGBTI couples.

 

Postal survey form

No asterisks, terms and conditions or extra clauses – the postal survey only asked whether same-sex couples should be allowed to marry.

 

  1. There is a mandate for marriage equality

 

The wording of the postal survey question means a Yes vote does provide the Parliament with a mandate to introduce genuine marriage equality. In fact, I would argue they have an obligation to do exactly that.

 

Unless the question specifically stated that same-sex couples would be treated as lesser than cisgender heterosexual couples are now – which, as we have seen, it did not – then the logical inference is that they would and should be treated the same.

 

And that is exactly how the question was interpreted by the Australian population.

 

As reported by Buzzfeed this week, a Galaxy poll: “canvassed 1,000 Australians on their views on same-sex marriage from October 26 to 30.

 

“In response to the question, ‘If the majority vote ‘yes’ in the postal survey, should same-sex couples be treated the same under the law compared with other couples?’, 78% of respondents said yes.

 

“This figure consisted of 98% of respondents who said they had voted ‘yes’, and [even] 43% of those who said they had voted ‘no’.”

 

As noted by PFLAG’s Shelley Argent in the same article: “This poll couldn’t be clearer. Australians want marriage equality and we want it without any of the caveats and exemptions that will further entrench discrimination against same-sex couples.”

 

And so, if the outcome of the postal survey on 15 November is a Yes, then the message to our Parliamentarians will be unambiguous – they should provide LGBTI Australians with the right to marry, and they must do so on exactly the same terms as it is enjoyed by cisgender heterosexual couples today.

 

**********

 

Nobody should underestimate the scale of the challenge that lies ahead of us. Even if we win the postal survey in ten days time, the debate that follows, about what same-sex marriage looks like in practice, is going to be a messy one.

 

Our opponents will fight just as hard, and just as dirty, as they have over the past few months. We will need to rely once more on our patience, our passion and our principles to win.

 

It is also unclear how long this debate will last. While some express the hope that marriage equality could be passed by Christmas, it is possible that this process will take several months to resolve, lasting well into 2018. There is even the chance that same-sex marriage is not passed this term, because the legislation that is put forward has to be rejected as it falls short of true equality.

 

All of which means that, while Steven and I have (re)started our discussion about possible wedding dates, we still have no clear idea when that might ultimately be.

 

But I do know this: when I asked him to marry me on that January day in Melbourne almost eight years ago, there were no conditions attached. When Steven and I finally get married, there shouldn’t be any conditions attached either.