It’s Not Over Yet

Just when you thought Prime Minister Malcolm Turnbull couldn’t physically be any more disappointing on marriage equality than he already is, he goes and announces his support for adding new forms of discrimination to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (aka the Smith Bill).

 

That’s right, less than 24 hours after yesterday’s emotional celebrations when that Bill cleared the Senate – something which Turnbull himself tweeted showed ‘Parliament at its best today – the Senate passed the same-sex marriage bill’ – he has revealed he will support multiple negative amendments in the House of Representatives, including some that were explicitly rejected in the upper house.

 

This significantly increases the chances that the legislation that is ultimately adopted falls well short of genuine marriage equality, even risking the passage of the Bill entirely if we end up with deadlock between the two chambers.

 

It is unclear whether Turnbull actually believes in the amendments himself, or if he is simply supporting them in a(nother) craven capitulation to capital ‘c’ Conservatives within his party, in a last-ditch effort to save his leadership.

 

Frankly, my dear readers, I don’t give a damn what his motivation is. Because, far more importantly, it is clear what the impact will be: more discrimination against LGBTI couples, and LGBTI Australians more broadly.

 

Let’s turn to the possible amendments themselves. Based on media reports in The Australian, and Guardian Australia, it appears Turnbull now supports at least two, probably three, and potentially even more amendments undermining the Smith Bill, which as we already know is a significant compromise. These include:

 

  1. Providing all civil celebrants with an ability to discriminate on the basis of their personal conscientious or religious belief

 

As reported by The Australian, “[t]he Prime Minister supports… provisions that would ensure that marriage celebrants are able to decline to solemnise marriages which they do not wish to solemnise.” Presumably, this means supporting Attorney-General George Brandis’ amendments on this topic.

 

This proposal is so terrible it is almost unbelievable we have to keep explaining why, but just to reiterate the many reasons why we should say ‘I don’t’ to religious exceptions for civil celebrants:

 

  • Civil wedding ceremonies are not religious, therefore a celebrant’s personal beliefs are irrelevant
  • The ability to discriminate does not currently exist with regards to divorcees remarrying, so should not be introduced for LGBTI couples
  • Civil celebrants are performing a duty on behalf of the state, so should not have the power to discriminate on the basis of sexual orientation, gender identity or intersex status
  • Commercial businesses should not be able to discriminate on the basis of personal religious or conscientious belief
  • If civil celebrants are allowed to discriminate, it is difficult to withhold this privilege from other wedding-related businesses, and
  • Allowing civil celebrants to discriminate creates a terrible precedent for anti-discrimination law in Australia, opening the door to further discrimination in the future.

 

  1. Reinforcing the ability of charities to discriminate against LGBTI people

 

These amendments are being sold as a supposed ‘shield’ to protect charities from some unspecified, nefarious action by future governments. In reality, they are more likely to be used as weapons against lesbian, gay, bisexual, transgender and intersex Australians, further entrenching the ability of religious organisations to discriminate against employees, and people accessing their services.

 

Irrespective of which view you adopt, however, the amendments are completely unnecessary. As revealed by Liberal Senator Dean Smith during Senate debate of his Bill on Tuesday, he wrote to both the Australian Commissioner of Taxation, and the Acting Australian Charities and Not-for-Profits Commissioner, about the impact of his proposed legislation. From Hansard:

 

“I asked the charities commissioner two questions. The first was whether a religious charity that currently holds and/or expresses a view of or a position on marriage will be able to continue to do so without any negative impacts on its charitable status following the enactment of amendments to the Marriage Act to allow same-sex couples to marry – that is, the future act. ‘The short answer’, the commissioner said to me, ‘to this question is yes’.

“The second question I asked the charities commissioner was whether the lawful refusal to conduct a marriage ceremony, deliver goods or services, or hire facilities to same-sex couples or other couples in accordance with the future Marriage Act and current exemptions in federal, state and territory anti-discrimination laws would result in any adverse consequences in relation to an entity’s charitable status. ‘The short answer’, he says in correspondence to me, ‘is no’.

“For the sake of completeness, the Australian Taxation Commissioner says:

… a religious charity holding or expressing a view of a religious nature (position on marriage) will not have an impact on [Deductible Gift Recipient] endorsement.

He goes on to say:

Similarly, lawful refusal to conduct a marriage ceremony, deliver goods and services or hire facilities in accordance with the future Marriage Act will be unlikely to impact DGR endorsement. These activities would fall outside the scope of the general DGR categories and would not prevent DGR endorsed religious charities from fulfilling their DGR purposes.”

 

Turnbull’s own Government agencies – including the Taxation Commissioner himself – have effectively rejected any need for amendments in this area. He should not be jeopardising the introduction of marriage equality for the sake of something that is, at best, unnecessary, and at worst, a Trojan horse for increased discrimination against LGBTI people.

 

  1. Including a declaratory statement about ‘religious freedom’ in the Marriage Act

 

Another Trojan horse for new, adverse treatment of LGBTI Australians is the second of Attorney-General Brandis’ failed amendments: a proposal to add a statement from Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) in the objects of the Marriage Act itself.

 

At this stage, there are mixed signals about whether the Prime Minister supports this change. What is not ‘mixed’ – indeed, what is unequivocal – is that such a change must be rejected.

 

In the words of ALP Senate Leader Penny Wong, during the same debate on Tuesday:

 

“As has been pointed out by a number of legal advisers, and also referenced in some of the documentation provided by the Human Rights Law Centre, there are some questions about the extent to which there may be unintended adverse consequences in relation to this amendment. I would also make the point that we find it somewhat odd that one would cherrypick the ICCPR in this way. For example, article 18.1 is singled out but not article 18.3, which states:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

“Obviously, 18.3 constrains to some extent the rights articulated in 18.1 and reflected in the amendment that Senator Brandis has spoken to. I also note that article 26 of the ICCPR commences as follows:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.

“I pick up those two aspects of the covenant because it seems to us on this side that there’s obviously, certainly in this chamber and to some extent in the community, an interest in discussing the place of religious belief and the way in which the law might safeguard better the right to have such a belief—the right to hold beliefs—and a discussion about the extent to which that belief might affect the application of Australian law. However, as I have said on a number of occasions today, that is a reasonably complex and at times controversial discussion, and it is certainly a discussion that goes quite directly to the way in which religion is dealt with in a secular state and to the extent to which absolute belief, and limited protection under the law for that, need to be balanced.

“The Labor Party’s view reflects to some extent Senator Brandis’ introduction to this amendment, which is that this is a matter that rightly should go through the process that Prime Minister Turnbull has established [the Ruddock review]. We believe that an amendment of this sort would better be considered in the context of that process.”

 

Greens’ Senator Nick McKim noted even more serious concerns with this amendment:

 

“Enacting only the first sentence of article 18.1 leaves out the limitations on freedom of religion that are found in the remainder of 18.1 and in article 18.3 and… transforms what is a limited right into an absolute right.

“…I want to note that there is a trend around the world in Western democracies—and this is the case in Europe as well as the United States—where conservative Christian pro bono law groups are pursuing aggressive litigation strategies to justify discrimination against LGBTIQ people. Including article 18.1 of the ICCPR in Australian law will make freedom of religion justiciable and fuel legal conflict in our country. Last year we saw the Australian Christian Lobby establish the pro bono Human Rights Law Alliance… they established that alliance precisely for the purpose of litigating against LGBTIQ people, and the alliance is already running a number of cases on behalf of conservative Christians, including challenges to anti-discrimination law on the basis of the religious freedom provision in the Tasmanian Constitution, the constitution of my home state. Senator Canavan described this amendment as ‘a shield’. It’s not a shield; it’s a sword. It’s a sword that will be wielded by the conservative right against LGBTIQ people in this country, and that’s why it should be stridently opposed.”

 

**********

 

I started this post by expressing my disbelief that Malcolm Turnbull could have found a new way to let me, and LGBTI Australians, down. Again.

 

But, putting aside my own incredulity, that’s exactly what he’s done. Again.

 

Even after deciding that LGBTI Australians must be subjected to an unnecessary, wasteful and divisive plebiscite on our fundamental human rights.

 

Even after that was rejected by the Senate, and he determined that we would be subjected to an unprecedented three-month, $100 million postal survey instead.

 

Even after Australians overwhelmingly voted Yes, and he refused to put forward marriage equality legislation that simply amended the definition, and recognized foreign marriages – without additional discrimination against LGBTI couples.

 

Even after the Smith Bill was passed by the Senate. Now that legislation that would finally allow all LGBTI couples to marry is before the House of Representatives, and its passage is so close we can almost touch it, the Prime Minister is still finding new ways to treat us as second-class citizens.

 

But, just as we’ve overcome all of the previous hurdles that have been placed in our way, we must do everything we can to clear this one too.

 

That means taking action one more time to say that second-class is not good enough. That we won’t accept new forms of discrimination as part of any marriage equality Bill. That the House of Representatives must reject any amendments that can be used to discriminate against us.

 

Please make sure you complete the #equalmeansequal webform, calling on MPs to vote against new discrimination: www.equal.org.au/equalmeansequal

 

Because now is definitely not the time to hold your peace.

 

151222 Turnbull

Prime Minister Turnbull, who wants to add new discrimination to the Marriage Amendment (Definition and Religious Freedoms) Bill in the House of Representatives.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

However, I would make the following brief points:

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

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

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

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

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

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

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

Thank you Tanya Plibersek and Penny Wong for Supporting a Binding Vote on Marriage Equality

In the lead-up to ALP’s National Conference in July, if the #ItsTimeToBind campaign is to be successful, it will be important for senior figures within the party to come on board and express their personal support for a binding vote in favour of marriage equality.

Which is why it was so encouraging that, on 28 March, two members of the current parliamentary leadership group publicly indicated their own commitment to a binding vote.

In an article which appeared in The Saturday Paper, Deputy Opposition Leader the Hon Tanya Plibersek MP, and Leader of the Opposition in the Senate, Senator the Hon Penny Wong, both confirmed their backing for a change to the rules (article here: http://www.thesaturdaypaper.com.au/news/politics/2015/03/28/pressure-builds-same-sex-marriage-libs-and-alp/14274612001683#.VR8hjboxGX1).

I have sent short letters to both Ms Plibersek, and Ms Wong, thanking them for their public stands (copied below). Hopefully, these will be the first of many such thanks we get to write in the 16 weeks remaining til the party’s delegates assemble in Melbourne.

The Hon Tanya Plibersek MP

Deputy Leader of the Opposition

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 5 April 2015

Dear Ms Plibersek

Thank you for Supporting a Binding Vote in Favour of Marriage Equality

I am writing to express my thanks to you for supporting a binding vote in favour of marriage equality, as confirmed in an article published in The Saturday Paper on 28 March 2015.

If the campaign for a binding vote on marriage equality is to be successful at ALP National Conference in July, then it will require leaders within the party to stand up for the principle that the recognition of the human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians should not be optional.

Thank you for publicly supporting this principle, and for demonstrating leadership in the process.

Hopefully, you will be joined in this position in coming months by the majority of your parliamentary colleagues, from the Leader of the Opposition, the Hon Bill Shorten MP, down – and that, ultimately, the majority of delegates to ALP National Conference agree.

In this way, not only will the Australian Labor Party make history by changing its position, but the Australian Parliament will be much closer to making history by changing the law – something which I am sure you agree is long overdue.

Thank you again for supporting a binding vote. Let’s hope the campaign is successful come July.

Sincerely

Alastair Lawrie

Deputy Opposition Leader, the Hon Tanya Plibersek MP, confirmed her support for a binding vote on Saturday 28 March.

Deputy Opposition Leader, the Hon Tanya Plibersek MP, confirmed her support for a binding vote on Saturday 28 March.

Senator the Hon Penny Wong

Leader of the Opposition in the Senate

PO Box 6100

Parliament House

CANBERRA ACT 2600

Sunday 5 April 2015

Dear Senator Wong

Thank you for Supporting a Binding Vote in Favour of Marriage Equality

I am writing to express my thanks to you for supporting a binding vote in favour of marriage equality, as confirmed in an article published in The Saturday Paper on 28 March 2015.

If the campaign for a binding vote on marriage equality is to be successful at ALP National Conference in July, then it will require leaders within the party to stand up for the principle that the recognition of the human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians should not be optional.

It is incredibly pleasing that your spokesperson’s quote in the article strongly reflects this view: “Senator Wong’s longstanding position is that marriage equality should not be a matter of conscience, it should be Labor policy.”

Thank you for publicly supporting this principle, and for demonstrating leadership in the process.

Hopefully, you will be joined in this position in coming months by the majority of your parliamentary colleagues, from the Leader of the Opposition, the Hon Bill Shorten MP, down – and that, ultimately, the majority of delegates to ALP National Conference agree.

In this way, not only will the Australian Labor Party make history by changing its position, but the Australian Parliament will be much closer to making history by changing the law – something which I am sure you agree is long overdue.

Thank you again for supporting a binding vote. Let’s hope the campaign is successful come July.

Sincerely

Alastair Lawrie

"Senator Wong's longstanding position is that marriage equality should not be a matter of conscience, it should be Labor policy." Hear, hear.

“Senator Wong’s longstanding position is that marriage equality should not be a matter of conscience, it should be Labor policy.” Hear, hear.

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

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

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

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

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

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

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

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

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

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

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

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

TONY JONES: Okay, George.

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

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

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

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

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

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

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

GEORGE BRANDIS: No.

TONY JONES: Why shouldn’t it?

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

TONY JONES: So religious…

GEORGE BRANDIS: And if I may say…

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

 

 

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

 

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

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

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

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

LGBTI Voices Absent from the Chamber

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

**********

UPDATE 7 JANUARY 2016:

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

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

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

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

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

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

Trent-Zimmerman

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

Federal LGBTI Anti-Discrimination Protections, At Last

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

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

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

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

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

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

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

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

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

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

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

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

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

A Tale of Two Speeches Part 2

A Tale of Two Speeches Part 2

I have chosen to reproduce another two speeches from the Senate’s debate on marriage equality over the past week. These two Senators from South Australia encapsulate everything that is right – and sadly, everything that is wrong – in Australian politics. Senator Penny Wong’s speech is yet another example of her amazing capacity for both passion and eloquence on an issue which is obviously personal and yet clearly much bigger than the interests of her and her immediate family.

Senator Bernardi’s speech is already infamous, both within Australia and internationally. He deservedly lost his position as a Parliamentary Secretary to the Opposition Leader for introducing the repugnant comparison of allowing equal marriage with future calls for bestiality to be recognised. It is to his, Tony Abbott and the Liberal Party’s shame that he still retains his position as a Senator – and this is something which the voters of South Australia should remember next year when they are casting their ballot for the upper house.

Of course, there were many other notable speeches both for and against which I could have included. One of my previous bosses – Senator John Faulkner – gave a dignified and appropriately serious call to arms for people who support progressive change (does he ever do anything else?). And Senator Helen Polley disgraced herself yet again, not to mention sullying the reputation of every member of the Australian Labor Party, by reading out a constituent’s letter raising the spectre of a future ‘stolen generation’ should equal marriage be legislated. Shame on you Senator Polley – what a warped view of love and sexuality you must have.

Senator Wong

(South Australia—Minister for Finance and Deregulation) (12:00): This is an important debate for Australia. It is an important debate for this parliament, because the issue at the heart of this debate is fundamental to who we are and what we believe. This is a debate about the principle of equality. The aspiration of and struggle for equality has been a constant in our history. Australia has not always been an equal society, but ultimately we always move in the direction of greater equality, and we should not forget that it is a progression that is greater than any one vote.

The Marriage Amendment Bill (No. 2) 2012 is a step along the path of progress, and that fact is demonstrated by what we have seen while this vote has been on the horizon. Our numbers have grown, as the numbers of those who oppose marriage equality have got smaller. The momentum has been one way. Many of my colleagues who have previously opposed marriage equality now support it. I acknowledge them and I thank them because, like me, they know that the principle of equality is inherent in who we are and it is central to the world we want for our children.

Equality is more enduring than any single generation. It is a principle that will continue to inspire, and it is a fundamental right. If you look at the span of history, of social change, the calls for equality have been persistent and they have been successful. We have seen changes to ensure individuals are not discriminated against because of their gender, their race or their religion—reforms that see all Australians treated equally in the community and in their workplaces: the quintessential idea of a fair go for all.

Much has been said in this debate about relationships, about families, about parenting and even about the so-called threats to the nature of Australian society. But let us be clear what we are debating here: we are being asked to consider whether the state, through law, should continue to discriminate against some Australians solely on the basis of their sexuality. We are being asked to consider whether in today’s Australia we should continue to ban two consenting adults from marrying because and only because they are of the same sex.

If you subscribe to the principle of equality, as I am sure most in this chamber would, then substitute same-sex for race in this debate and see if it changes your view. Just imagine if we told Australians today they could not get married because the person they love is of a different coloured skin. Imagine if we told Australians today they could not get married because the person they love is of a different religion. Such notions are rightly seen as anachronistic. And, in 2012, it is truly sad that some still feel the need to constrain the freedom of others to make a commitment to the person they love through marriage.

I do believe marriage is unique. I believe that marriage is special and that it is a bedrock institution of society. I believe that marriage should be valued. But marriage does not need to be walled off from some Australians in order to preserve its worth. The heart of marriage is the love of and commitment to another. This promise, the vow of marriage, does not discriminate and nor should our laws. But the Marriage Act as it is currently worded is discriminatory. It involves different treatment and lesser rights to certain individuals on the basis of their sexuality. The discrimination could not be more real.

There are many arguments that have been put in this place and in the debate more broadly by those seeking to continue marriage inequality. People have argued that same-sex marriage would undermine the institution of marriage—that marriage as a concept is immutable and therefore unable to accommodate gay and lesbian Australians. Then there is perhaps the most hurtful of arguments: the view that marriage is an institution of procreation and therefore same-sex couples are not welcome. I believe it is worth discussing these arguments each in turn because, when held up to scrutiny, they are clearly without foundation.

As I have said, some have tried to claim that allowing same-sex couples to marry will somehow destabilise the very foundation of marriage, that it will undermine what marriage is. But this not a zero-sum game. My getting married does not preclude a heterosexual couple from getting married. Indeed, the argument that allowing me to marry the person I love will somehow make their love less says more about their relationship than mine. So I say to those who oppose this bill: ‘You do not need to legitimise your relationship by undermining mine. You do not need to tell me and the thousands of other same-sex couples that our relationships are less worthy, less valid or less important. We know the worth of our relationships. We will not allow them to be diminished in this debate and we do not accept them being diminished by this law.’

As I said, I agree marriage is both unique and important. Same-sex couples believe marriage is an important institution. That is why we want the choice to enter it. For those opposite who may think this view is only held by some on the progressive side of politics, look at the statements of British Prime Minister David Cameron, who last year said:

I don’t support gay marriage despite being a Conservative; I support gay marriage because I’m a Conservative.

He is a Conservative Prime Minister who makes a very important point: that institutions are not weakened by inclusion.

Inclusion and tolerance have always been the guiding lights of social progress. They have always shone brightly on discrimination and, time and time again, have shown us that our similarities will always be greater than our differences. Our society is strongest when we are accepting, when we enable equality to overcome exclusion and when, with open eyes, open minds and open hearts, we cherish diversity and value inclusion. Exclusion so often unearths the worst in us, because it reflects the least worthy aspects of society. So often it is driven by ignorance or, worse, by prejudice. That is why the argument that the institution of marriage is strengthened by exclusion is as spurious as it is hurtful. It is discrimination, plain and simple.

There are those who argue that the institution of marriage is immutable; that it has not changed since time immemorial. Such statements ignore how much the understanding of marriage has varied. Marriage has changed from being a concept of ownership to being one of genuine partnership.

Marriage was previously banned for interracial couples and it took a Supreme Court decision in the United States to overturn this. Australian history provides further examples. In 1901, JC Watson, later to become the first Labor Prime Minister, asked during a debate on the Immigration Restriction Bill:

The question is whether we would desire that our sisters or our brothers should be married into any of these races to which we object.

These views were once normal. These views of marriage were once predominant—but no longer. In my own family, I have seen this change. My parents married during the last years of the White Australia policy; what was seen as an interracial marriage, remarked on in its time, would in today’s Australia be unremarkable. Indeed, marriage as an institution has proven to be flexible in reflecting the social norms of the day—far from being set in stone, it has responded to social change. If passed, the bill before the chamber would see marriage again reflect the values of our society.

I want to turn now to the place of religious belief in this debate. I believe in freedom of religion and in the right of Australians of faith to express and practise their faiths and traditions. I support the provisions in the bill which protect the church from having to marry same-sex couples if their faith does not permit it. The real question here is the line between religious teaching and secular laws—whether those who hold a particular belief should impose that view on all. The majority of Australians now marry in civil, not religious, ceremonies. Should the views of some who hold particular beliefs determine the legitimacy and eligibility of those who choose to marry outside of religious services and beyond their church? I think not.

Some also argue that marriage is about children, and that same-sex couples cannot or should not have children. This is an argument that brings with it a fair amount of logical confusion. To suggest that you can or should only have children if you are married is inconsistent with the reality of today’s Australia. To suggest that marriage should only be defined by reference to children would mean that marriages in which someone is infertile would not be allowed, that marriages where the couple did not want to have a family would not be allowed and that marriages where the couple were too old to have children would not be allowed. Clearly, this is not the case.

But underlying this position—and perhaps the most hurtful argument of all—is the view that some Australians are not worthy of being parents simply because of their personal attributes. That is, because of our sexuality, our worth as a mother or father is lessened. The fact is same-sex couples already have children. Denying marriage equality will not change this. Bringing an argument about the worth of our families and about the value of our parenting into this debate is dishonest and it is objectionable. The quality of parenting, whether by a straight person or a gay person, will never be determined by a political argument. The love that a parent—straight or gay—has for their child is seen in the days and nights and years of love and nurture and hope and so much more.

The arguments of those that oppose this bill do not stack up. But perhaps what is worse is the vein of prejudice that runs through some of the contributions in the debate over marriage equality. As this debate has occurred over the past weeks, homophobia has increasingly come to the fore. It is an undeniably ugly vein that runs deep in some of the arguments against marriage equality, and it is regrettable, hateful and hurtful.

There are those who say homosexuality is a greater hazard than smoking. There are those who suggest that gay and lesbian Australians are promiscuous yet in the same breath criticise us for wanting to have our relationships recognised through marriage. There are those who lump homosexuality into the same category as bigamy and those who talk about the normalisation of homosexuality. Well, we are normal and we are here.

Gay and lesbian Australians are no different to all other Australians. We come from all walks of Australian life, from all regions and from all income brackets. We are your daughters and your sons, your brothers and your sisters, your mums and your dads, your coworkers and your friends, and we have the same aspirations, the same ambitions and the same hopes. We are not so different. It is time to recognise this.

I stand here today as a proud member of the Australian Labor Party: a party that in government has done more to progress the interests of gay and lesbian Australians than any other; a party that changed its platform last year to support same-sex marriage and to allow a conscience vote on this issue; a party big enough and brave enough to accept differences of views, and to support three of our senators, and the member for Throsby in the other place, introducing this bill—a braveness not matched in the leadership of those opposite. When the Liberal Party denied its parliamentarians the right to vote with their conscience on marriage equality, they ensured its defeat in the 43rd Parliament. The maths is as simple as it is devastating.

We often talk about the negativity of politics today, but this is different. It is not some tired, three-word slogan; it is worse. The party which preaches individual freedom refuses to allow a free vote on this most personal of issues. I welcome the comments of Senators Birmingham and Boyce, Mr Turnbull and Dr Washer, who have put on the record their desire for a conscience vote on this matter. On another day, at another time, I hope that they, along with members of the Labor Party, the Australian Greens and others, will have the opportunity to sit side by side in support of marriage equality.

There will be some who will see this week’s result as a vindication of their opposition to same-sex marriage—and they will be wrong. There will be many who will look at the members of this chamber and think that the parliament has failed them—and they will be right. We have failed to uphold the principle of equality in the law. The parliament as an institution should reflect the best of Australia. It should inspire tolerance and acceptance. It should encourage respect. On this issue, our parliament is lagging behind our community.

The result of this vote will be disappointing to many thousands of Australians. To all the friends, to the mums and dads, to the sisters and brothers, to the mates and to the colleagues of gay and lesbian Australians: I encourage you to keep the fight for equality going. We are on the right side of this debate and on the right side of history. We are on the side of equality.

This parliament may miss its opportunity to right a wrong, but it will only be through your perseverance that we can guarantee that the next time this comes to a vote there will be no choice but to support equality. Remember, many steps towards equality in this country were not won the first time nor even the second. Many were achieved only after years of action and of activism. But the aspiration for equality is persistent, and it cannot be denied forever.

To the Australian LGPTI community who feel disappointed, I encourage resolve and, particularly, to young gay and lesbian Australians, to those who may not have come out yet or are finding their way, I want you to know that the prejudice you have heard in this debate does not reflect the direction in which this country is going. Those who oppose this bill speak to the past. I and my colleagues are talking to a better future because, whatever happens in the parliament this week, our relationships are not inferior, our relationships are not less equal and our love is no less real. We will get there—perhaps not in this parliament, but one day. One day we will be recognised as equal.

For us, this is the most personal of debates. It is about the people we love most in the world, the people who give meaning and hope to our lives. It is about our families. And, ultimately, it is not only about what we want for ourselves; it is about what we want for our children. We all hope for our children an easier path, that the challenges life presents will be surmountable. I do not regret that our daughter has Sophie and I as her parents. I do regret that she lives in a world where some will tell her that her family is not normal. I regret that, even in this chamber, elected representatives denigrate the worth of her family. These are not challenges she deserves. None of our children deserves such challenges. So I will not rest in the face of such prejudice. I want for her, for all of us, an Australia which is inclusive and respectful. This is why this campaign will not end here: because we who argue for equality are not only standing for principle, we are also standing for the people we love—and there is nothing more powerful than this.

I say to those opposing this bill: you have nothing to fear from equality. Let us judge relationships by the markers which matter—love, respect, commitment. Let our laws reflect these most cherished values and give voice to the equality that is due.

Senator Bernardi

(South Australia) (21:22): I have spoken many times in this place about the importance of traditional marriage. In fact, I spoke about marriage in my maiden speech in this place over six years ago. In that speech I said:

Marriage has been reserved as a sacred bond between a man and a woman across times, across cultures and across very different religious beliefs. Marriage is the very foundation of the family, and the family is the basic unit of society. Thus marriage is a personal relationship with public significance and we are right to recognise this in our laws.

I have been and always will be a strong supporter of traditional marriage and its current definition, being a union between a man and a woman. Marriage is accorded a special place in our society because it is a union that is orientated towards having children, thereby ensuring the continuation of our population and civilisation. Society benefits from marriage, so marriage is accorded benefits by society. At the base level marriage is concerned about what is best for society, rather than being concerned about the so-called rights of the individual. Changing the definition of marriage would indeed change the focus of the institution itself. It would put the focus on the desire of adults, as opposed to having the focus on the production and nurturing of an environment for the raising of children for the benefit of society.

I know that not every marriage has children but marriage is a foundation for the family unit upon which our society is built. It has proven itself as the most sustainable and effective social support and training environment for our future generations. I recall columnist Miranda Devine quoted a UK Family Court judge in 2010 in which he noted that family breakdown is the cause of most social ills and that, despite its faults, marriage should be restored as the gold standard and social stigma should be reapplied to those who destroy family life.

The Australian Institute of Family Studies has found that children of married couples benefit from marriage because they have higher levels of social, emotional and educational development in comparison with children who do not live in that traditional environment. Married mothers are more likely to be employed or hold a university degree and married-couple families are less likely to come up against financial problems. While the authors of the research were keen to stress that this is because of a family’s financial situation and the educational qualifications of the mother, it does give me cause to wonder: doesn’t marriage itself help to provide financial stability and better outcomes? That seems to be a case for opening marriage up to any environment and to any union of two people, as Senator Cameron said, who happen to love each other, but in a family environment it is children who should be the primary concern and children benefit from having both a male and a female role model living in a house—two people that love each other in a permanent union.

We have all seen the sad effects of marriage breakdown and the adverse impacts it can have on children. We have to also acknowledge that today families do not always come as the gold standard where mum and dad do live together under the one roof of a house and love each other and provide that nurturing environment. I have always said that a child is better in any environment where it is loved and that is irrespective of the circumstances, but it will not stop me from advocating that traditional marriage is the absolutely best environment for the rearing of the next generation. So whatever the forms that families take in this modern day and age—and they do come in so many different forms with some people being individual parents and indeed same-sex couples also raising children and they all do an amazing job in the circumstances—as I said, I will not stop focusing on the importance of promoting and encouraging the traditional family. But simply because marriage is important that does not mean that we should redefine it. We should not open it up to all comers, because I think it would actually devalue the institution.

The move for same-sex marriage is just another step in what I consider an attack on our enduring and important institutions, particularly the social ones. It is another tear in the fabric of our social mores. The proponents of same-sex marriage, and I do not mean to generalise but this is about many of the proponents of same-sex marriage, ask for one step and they think that is all they want or they say that is all they want and they will be satisfied when this has been achieved—’Just this one thing; give us that and that will be okay and all inequality will be diminished and everyone will be equal and it will be fair’. But the harsh reality is that there will never be equality in society and there are always going to be people who feel that they have got a raw deal or have been discriminated against or do not have the same access to opportunities or advantages as others do, and to pretend any differently is really to deny reality. But history demonstrates that once those who advocate for radical social change, which I consider this to be, achieve it in any way, shape or form, there is then another demand and another demand and another demand and they slowly chip away at the very foundation of what provides our social support, stability and cultural mores and we are left with a replacement that is somehow vastly inferior to the wisdom of successive generations.

I recall that in this place only a few years ago people pushed for the same entitlements and benefits for all relationships that were then held by married couples. This was achieved. I opposed it at the time because my point was that just because people are in a sexual relationship that does not mean that they should be afforded the same rights and privileges as society affords those in traditional marriage, and I have outlined some of the reasons for that. Indeed, I advocated at the time that if it is about genuine equality and interdependency then we should advance this to interdependent relationships in which there is no sexual engagement. There are any number of those relationships, including people who live together and share bank accounts and expenses and who, for all intents and purposes, share their lives without having a sexual or physical relationship. But that was rejected, I suspect because it was not really about equality. It was not about interdependency and it was not about sharing your life with someone; it was about chipping away at the institution of marriage.

The legislation got through and I lost that debate—you win some and lose some in this business. At that stage I was one of many saying this was another step that would undermine marriage. Today we see the next step. This is another push—it is not the first time and it will not be the last time—for same-sex marriage. Time and time again the techniques of the radicals who seek to overturn the social institutions and social fabric of our society are out of step with the priorities of mainstream Australia. No-one out there that I have come across says this is the most important issue facing Australia. There are enormous social and economic problems in this country, and this debate will not solve any of them. Time and time again the same characters seek to tear down our institutions that have been built and have sustained our civilisation for thousands of years. The time has come to ask: when will it end?

If we are prepared to redefine marriage so that it suits the latest criterion that two people who love each other should be able to get married irrespective of their gender and/or if they are in a sexual relationship, then what is the next step? The next step, quite frankly, is having three people or four people that love each other being able to enter into a permanent union endorsed by society—or any other type of relationship. For those who say that I am being alarmist in this, there is the polyamory community who were very disappointed when the Greens had to distance themselves from their support for numerous people getting together and saying they want to enter into a permanent union. They were disappointed because they were misled that this was about marriage equality and opening up marriage to all people who love each other.

There are even some creepy people out there—and I say ‘creepy’ deliberately—who are unfortunately afforded a great deal more respect than I believe they deserve. These creepy people say it is okay to have consensual sexual relations between humans and animals. Will that be a future step? In the future will we say, ‘These two creatures love each other and maybe they should be able to be joined in a union.’ It is extraordinary that these sorts of suggestions are put forward in the public sphere and are not howled down right at the very start. We can talk about people like Professor Peter Singer who was, I think, a founder of the Greens or who wrote a book about the Greens. Professor Singer has appeared on Q&A on the ABC, the national broadcaster. He has endorsed such ideas as these. I reject them. I think that these things are the next step. As we accede to one request we will then have the next one which will be for unions of more than two people. We will have suggestions for unions of three or four people. I notice the Greens are heckling, but the point is that they misled their constituent base and there was an outcry about this. Where do we go then? Do we go down the Peter Singer path? Those that say this is the end of the social revolution have no history of being honourable about that. They continue to push and challenge our social and cultural mores. We simply cannot allow such an important social institution to be redefined, especially when Australians do not see this as a priority issue.

Senator Cameron was critical of his party denying some of the people in support of same-sex marriage a conscience vote, the ability to speak up in favour of what they thought was important. He neglected to mention that the Left of the Labor Party had never really supported a conscience vote. In fact, they sought to change the party’s position to support same-sex marriage. That meant that those that had a conscientious objection to it would have been bound by the Labor Party’s platform to support same-sex marriage. On the one hand Senator Cameron decried the fact that some people could not vote according to how they felt and yet he was one of the architects of this, along with people like Mark Butler. In a story in the Sydney Morning Herald Mark Butler is said to be one of those who believes that those who support traditional marriage should not be allowed to put their position forward.

I understand that this is a very sensitive debate. I also understand that senators on both sides of this chamber have very strong views. I understand some of these views are borne by personal experiences or those of loved ones and some are borne by their idea that this is a fairer and more equitable way to proceed. We have seen demands and requests for surveys of what is going on in the electorates. That was put forward by Mr Bandt in the other place. He asked for members of parliament to report back on what their constituencies thought about this argument. I have to say that a significant majority—some have suggested as many as two-thirds—reported that their constituents broadly supported marriage being retained as between a man and a woman, as was endorsed by this parliament some eight or 10 years ago.

In standing up for traditional marriage, advocates are not saying that one group is better than another or that one group is superior to another. This is, in my view, about defending what is right and what is important for society. Last year I read an article by a 19-year-old university student Blaise Joseph, who wrote:

Marriage laws are fundamentally a question of what’s best for society rather than a question of individual rights.

That view, in one way, shape or form, was shared by over 32,000 people who wrote in favour of traditional marriage to the recent Senate inquiry.

Add these views to MPs’ electorate surveys and the calls and emails I get from my own constituents and it is very clear to me that many Australians want to protect the notion of traditional marriage, for many valid reasons. These people have, in some instances, put aside their fears of being branded as intolerant, uncaring, heartless or in support of inequality by those people who profess to be tolerant of other points of view and who, in my view, look to degrade the notion of marriage. These people who have stood up against same-sex marriage in the face of a very vocal campaign are to be commended in this current culture of political correctness, where those who apparently disagree with the wisdom of the elites are somehow howled down and demonised publicly.

I am sure there are millions more Australians who share these sentiments irrespective of whether they have spoken publicly about it. I will continue to stand with these Australians and to fight for traditional marriage because I believe it is what the people of Australia want. More importantly, I think it is the right thing to do both for our children and for our society.