Thursday, 3 November 2016

Hooray! Qld to allow same sex couples, singles to adopt

Last night the Queensland Parliament passed amendments to the State's Adoption Act 2009 to allow same sex couples, singles and those undergoing fertility treatment to be eligible to adopt.

This was an historic moment. For the first time in history, this discrimination will be removed- and will enable the assessment of who is to be an adoptive parent for a child to be decided purely on the best interests of the child, and without discrimination based on the sexuality of the intended parents, or whether the intended parents are single as opposed to a couple, and stops the cruel choice for couples of either undergoing IVF OR adoption, but not both.

I and others were critical when the Adoption Act 2009 was enacted- because it was discriminatory. It is pleasing to see this change.

To get this Bill through required real courage on the part of the Palaszczuk government. The two independents voted in favour, as did the casting vote of Speaker Peter Wellington. His voted was needed was because the two Katter Party members voted against, as did, sadly,  the whole of the LNP.

And what was the rationale of the LNP? Quite simply- there aren't enough children to be adopted. They are right. There aren't. But that is no reason to discriminate. The assessment for every child should be based on the best interests of that child, consistent with our international obligations under the International Convention on the Rights of the Child. To do otherwise is unfair, discriminatory, unequal - and wrong. As my 2C teacher Mrs Bray taught me all those years ago: "Two wrongs don't make a right."

The Bill commences when it receives the Royal assent, which should be in the next few days. 

The Government's position is also in line with Australia's position to the world under the Turnbull government. Last year Australian went to the UN in Geneva, and after being roundly chastised by 100 odd other countries about its discriminatory practices with LGBTI people, said that it would stop allowing exemptions to the Sex Discrimination Act for State legislation. Those exemptions came to an end on 31 July.

What is also important from these changes is that for the first time in legislation that I have seen, there is a definition of infertility- and it is non-discriminatory. This definition is consistent with a non-discriminatory definition of infertility proposed by the World Health Organization. The message is clear- that those undergoing infertility treatment can include singles and LGBTI people.  Here is the definition:

Infertility, of a person, means-
(a)   An inability, for a reason beyond the person’s control, to conceive; or
(b)   A genetically transmitted disorder giving rise to a significant risk that, if the person was a biological parent of a child, the child would not survive or the child’s health would be seriously impaired; or
(c)    A condition giving rise to a significant risk that, if the person fell pregnant, the child would not be carried until the child could be delivered alive; or
(d)   A condition giving rise to a significant risk that, if the person fell pregnant, the person would not survive or the person’s health would be seriously impaired.

Tuesday, 18 October 2016

Australia's human rights commissioners call for equal marriage

Yesterday Australia's human right commissioners- both for Australia and all the States and Territories called for equal marriage laws.

The commissioners, who comprise the Australian Council of Human Rights Authorities, said:

"ACHRA members reaffirm their support for marriage equality based on the fundamental human rights principles of equality before the law and non-discrimination. Members call on political leaders to work towards a resolution of this issue in a way that respects the rights and freedoms of all Australians. ACHRA reminds leaders and the community that prejudice and vilification in relation to sexuality and gender identity is harmful to individuals and society. In this regard, public debate must comply with existing discrimination protections in Federal, State & Territory laws. Those laws provide an appropriate balance of the rights to freedom of expression and belief, equality, and freedom from discrimination."

Couldn't have put it better myself.

Monday, 17 October 2016

Well that was no surprise! Now wait for the muddling before we have equal marriage

What was surprising was not that the ALP in effect killed off the plebiscite, but that the ALP caucus, which was always geared to have a conscience vote on gay marriage, at least until 2019, voted unanimously against the plebiscite.

This gives a strong message. The ALP is headed in one direction- no plebiscite, but a free vote.

While we have not yet had the vote in the Senate yet, the outcome is certain. Politics is after all a numbers game, and the numbers are against the Government in the Senate.

It is extraordinary that due to the opposition of Tony Abbott, some conservative Liberals like Cory Bernardi and Eric Abetz, and the Nationals that we are now in this mess- where increasingly the public just want the Government to solve the porblem, and the longer it goes on, the weaker the Government looks. No matter that the Prime Minister will feel that he cannot move- because to do otherwise will lead to his downfall.

The Prime Minister is clear: anytime soon no plebiscite, no change. Or at least, that is what some backbenchers and some Nationals members have said. There has even been talk that if the Government drops the plebiscite idea, and seeks a free vote it will be a breach of the coalition agreement.

In the midst of all of this, the man charged with getting the change through, Attorney-General George Brandis, was dragged into a Senate inquiry on Friday, following public differences between him and Solicitor-General Justin Gleeson. This is a major fight. Academics have weighed in, as has famed former Solicitor- General, who seemed to win every High Court case on behalf of the Commonwealth in his term, Dr Gavan Griffiths.

As of this morning, there were media reports that the plan was to move George Brandis sideways, either to replace Alexander Downer as Australian High Commissioner in London (who was opposed to THAT move) , or to fill the next High Court vacancy. But Brandis is going nowhere- at least for now.

Be that as it may, it is a huge distraction for Brandis to somehow craft a deal to get same sex marriage through, or to persuade others to accept his views, when on top of his onerous duties he also has the stoush with the Senate and the Solicitor-General.

A side distraction for the Government (if there weren't enough already) has been the immediate resignation of Family First's Senator Bob Day (SA), following the collapse of his Huxley Homes. The resignation will trigger the likely appointment of another Family First Senator from South Australia. Who it will be is not known, but it is extremely unlikely that their view will be anything but opposed to same sex marriage.

So we shall probably have to wait- and wait some more, until we eventually, in the words of Michael Kirby, muddle through and then enact equal marriage.

Sunday, 9 October 2016

Why I support the joint statement by LGBTI leaders against the plebiscite bill

It is now one year and one day since I married my husband in Las Vegas. Our marriage was celebrated before God, according to law, in front of 10 friends in person, and 250 friends and family in several countries via streaming. Our marriage, and the marriages of many other couples, is not recognised in our homeland, although it is recognised in countries with which we show a close affinity, heritage and values: the UK, Ireland, Canada, US and New Zealand, as well as many other countries including Brazil, Argentina, Colombia, South Africa, and many European countries.

 The cause of our angst

In 1961 then Attorney-General in a coalition government, and later Chief Justice Sir Garfield Barwick pushed the Marriage Bill, through Parliament. At the time it was considered revolutionary. Despite vehement Church opposition to the Marriage Bill, no one came up with the idea that Parliament should abrogate its job and have a plebiscite.

In 1975, when under Attorney-General Lionel Murphy, the Marriage Act was amended to allow civil celebrants, no one, despite vehement Church opposition, suggested that Parliament should abrogate its job and have a plebiscite. Now about 80% of marriages are celebrated by celebrants, not ordained Ministers.

 In 2004, John Howard with Labor support caused amendments to be made to the Marriage Act 1961 to prevent same sex marriage. Again, no one suggested that there should be a plebiscite. One could imagine that John Howard would have vigorously opposed such a step.

While I considered (and still do) that this was a retrograde step, I have never opposed the ability of Parliament to legislate for the common good.

But it is this legislation that is the reason the Marriage Act needs to be amended. For several years, various MP's and Senators have come up with quick and simple legislative fixes to fix the Marriage Act and remove the discrimination. This was solidly opposed by the coalition, and earlier by Labor.

Last year came the fix from the right of the Liberal Party, and spurred on by the Nationals, Tony Abbott embraced the plebiscite as a way of allowing open debate about same sex marriage- but as a means ultimately of defeating it.

As a seeming price of his becoming PM, Malcolm Turnbull, who rightly opposed the idea of the plebiscite, has embraced it, took it to the general election, and by a majority of one, won the election.

And now we have a proposed plebiscite that:

  • is unnecessary
  • devalues the role of Parliament, and through it our representative democracy, which despite its faults has meant that Australia is one of the oldest democracies in the world, and which by its openness has meant that we are prosperous and stable. Our respect for our democratic institutions, including that of Parliament, are fundamental to that.
  • seeks to have the majority decide whether or not a minority have rights- and not just any rights- but the right to one of the most fundamental things- the right to form a relationship- to marry, rather than Parliament recognising those rights
  • sets a precedent that when things get too hard, will cause MP's to throw it to a plebiscite rather than doing their jobs, the jobs we as taxpayers pay them to do.
  • will lead to the most rancorous debate. There will be a permanent impact on many LGBTI people. I don't accept that debate will be civilised. While laws prevent and will continue to prevent abuse being published- in the homes and on the streets homophobic abuse will continue. All too often I am subject to that abuse now. Why should I believe when the emotions are heightened that now it won't happen? Ireland is given as the example of a success story of a referendum. In Ireland a referendum was required to change the constitution. We don't need that. Now most LGBTI Irish are saying that the process of going through the referendum was such that they would likely not do something like that again, it was so scarring.
  • is a fundamental waste of money- at last count $200 million. Of all the ways that Government can waste money, this is a pretty extreme way, when according to pollsters, every electorate in the country, except one, the outback Queensland seat of Maranoa, is in favour of same sex marriage. Even Bob Katter's outback seat of Kennedy is in favour.
While I remain deeply saddened that marriage equality has not come, and will not come soon, the more I think about the plebiscite, the more I am opposed to the idea.

As a nation, we can do better.

Here is the public statement that I support:

As organisations and leaders of the lesbian, gay, bisexual, transgender and intersex (LGBTI) communities, we call on the Australian Parliament to ensure that every Australian is able to marry the person they love, in the country they cherish.
Making a solemn commitment to build a secure future with your partner, in front of your family and friends, is something that should be publicly celebrated. Declaring your commitment to look after your partner in sickness and health both cements your relationship through the rough times and shares your joys in the good times.
We make this call not only on behalf of LGBTI communities and their families who have been waiting for over a decade, but importantly to ensure future generations of LGBTI Australians can grow up on equal footing with their peers.
Two thirds of the Australian people, a majority of both houses of parliament and leaders of all major parties support marriage equality. We have never had so much support for achieving this small step towards every Australian having the same opportunities as their neighbour.
Our shared goal is simple – we want marriage equality as soon as possible at the lowest cost. The most efficient and effective way of achieving marriage equality is a vote in Parliament, a power confirmed by the High Court in 2013.
Marriage equality is about people, not politics. It is about the grandma who wants to see her granddaughter married in her lifetime, the parents who want to walk their children down the aisle, the children who wish to see their parents marry, and the many ageing couples who have endured inequality throughout their lives.
Our relationships, future happiness and security should not be used for political point-scoring.
We call on our political leaders to put aside partisanship and come together to find an achievable pathway for marriage equality, this term.
The Government proposes a plebiscite which we believe is unnecessary, costly and divisive, when the law can be changed through a straightforward vote in parliament. No Australian should have to witness a national debate on their worth or the value of their relationship. We are particularly concerned about the psychological impact on our communities caused by repeated exposure to divisive national discourse – concerns that are based on research evidence.
Our expectation has always been that should a plebiscite proceed, parliament would ensure a fair and reasonable plebiscite process that recognises the impact of this national conversation. Unfortunately, the plebiscite machinery legislation now presented by the government is neither. Indeed it is unfair, unjust and unworkable:
  • No government amendments to the Marriage Act have been provided as yet, nor are they guaranteed to come into effect following a successful Yes vote. It is unreasonable to expect the community and the parliament to vote on a plebiscite without first seeing the detail of what will be enacted upon a successful vote.
  • It is unacceptable to use $15 million of tax-payer dollars to fund the YES and NO committees, adding to the already extraordinary cost of the plebiscite. The proposal requires no truth-in-advertising test, yet will be seen as being endorsed by the Australian Government.
  • The Government’s bill will create an uneven playing field. Religious organisations already enjoy a range of tax benefits and concessions denied to other entities. Few LGBTI organisation have comparable tax deductibility status. Limiting tax-deductible donations to $1500 for individuals will exacerbate this unfairness.
  • The question is unnecessarily complex and the wording ‘same-sex’ fails to be fully inclusive of all LGBTI relationships. Media reports that the question has been crafted to improve the chances of a ‘no’ vote are troubling.
  • The plebiscite package provides no strategies or funding to address the considerable concern about the impact of the plebiscite on LGBTI communities, our families and friends. We have already seen reports of LGBTI Australians distressed.
Given this, we call on parliament to vote down the plebiscite machinery legislation.
Additionally, we reinforce our call that these reforms should not be delayed due to the politicking of parties in Canberra. We call on all Members of Parliament of good conscience to work together to deliver marriage equality this term.

This will be a week of drama on the plebicite bill

When Parliament resumes on Tuesday, there will be high drama in Canberra about the plebiscite bill.

The Government has signalled that it will present the plebiscite enabling bill for a second reading in the House of Representatives on Tuesday. The Labor caucus does not meet until Tuesday, but subject to a vote in effect of no confidence in Bill Shorten's leadership, the ALP will take a firm position against the plebiscite. It is likely at that time that the plebiscite will be doomed.

Once the Bill is debated upon, it is highly likely that the Government will apply the guillotine to cut debate short, so that the bill can get through the Representatives and go to the Senate. The Government has the numbers in the Representatives for the bill to pass there.

The Bill is scheduled to be before the Senate on Wednesday. There it is unlikely that there will be any swift passage of the bill. It will be interesting to see what happens in the Senate, but the most likely outcome is that there will be several weeks before the bill is killed off. The mess will then be in the Government's hands as to what to do. The Government could seek to amend the bill to placate Senators- but that is unlikely to work. Or the Government could wait the required time (3 months) and then use the bill as a trigger for another double dissolution of the House of Representatives and the Senate if its rejected by the Senate a second time. One could hardly imagine a more unpopular way of calling an election. Or the Government could allow a free vote- but that's unlikely while the plebiscite and the PM's Leadership are in lockstep. Or the Government could say that it puts everything off until after the next election. That seems the most likely course.

So what is the Senate likely to do?

The numbers are against the Government- if the ALP does come out on Tuesday and say it is opposed to the plebiscite. Currently in the Senate, one Government Senator, Dean Smith, who is openly gay, will vote against the plebiscite bill. Pauline Hanson's four senators will vote in favour. Derryn Hinch and Nick Xenophon's three members, the Green and Labor will vote against. In short, subject to the PM and Attorney-General George Brandis pulling a rabbit out of the hat- it appears as dead as a dodo.

Oh and don't forget the most improbable scenario. Senator Eric Abetz, one of of the architects of the plebiscite proposal- as a means of defeating equal marriage- said at one stage that he intended for there to be a Senate inquiry- as a means of slowing the Bill down. Of course, to get his inquiry up and running, Senator Abetz needs a majority in the Senate- and that looks unlikely at this point, to say the least.

For all their talk of the psychological impact on young LGBTI people in particular from the plebiscite campaign, one could not imagine Nick Xenophon, the Greens, Derryn Hinch or Labor supporting an inquiry.

Last week I was lucky to take part in meetings of LGBTI community members with both George Brandis and his Labor counterpart Mark Dreyfus. Both sides seem locked in their positions with little movement. No surprises there.

But we shall wait and see.

Monday, 26 September 2016

Deeply saddening: a failure of our political class to recognise our right to marry

Today was yet another deeply saddening day in the game of chicken being played out between the Government and the Opposition over gay marriage.

On the Government side, we have yet again a plebiscite that no one except the right wing of the Liberal Party and the Nationals wanted- foisted on the Liberal Party room by Tony Abbott. Then accepted by Malcolm Turnbull as a condition of his rise to power- and then invested as a part of the policy platform that he took to the election and won.

The plebiscite in my view would be an enormous waste of money - $200 million, or given how Governments estimate then spend our money, no doubt more- for what according to today's reports say is a shirking of the fundamental job of our Parliament- to legislate, including on controversial issues, as Parliament has done since day one, and one expects will continue to do for as long as it exists.

But worse, as all have said, the plebiscite would not be binding, and it is likely that conservatives like Eric Abetz will use every tool at their disposal to defeat the plebiscite. First the condition to fund the no side (which means both sides have to be funded- again another waste of money, as the electors of this country have pretty well made up their minds on this issue ages ago and want to move on), and then the Senate inquiry- to slow things down and kill off the plebiscite. And then if the plebiscite succeeds, then to vote against the will of the people.

I agree with John Howard. If the will of the people is to support gay marriage, then Parliament should respect the will of the people.

But when John Howard sought successfully back in 2004 to amend the Marriage Act to bring us to where we are now- to outlaw gay marriage, he didn't need to go to a plebiscite. Instead, it was just a vote of the Parliament. He persuaded the ALP Opposition, in classic wedge tactics, to agree to the amendment or be seen as being weak. No surprise- they agreed- and we are stuck where we are.

And if there is a plebiscite- there will be an outpouring of homophobic and transphobic bile that will hurt many people- all unnecessarily. It will impact all too greatly on trans people and young LGBTI people- the most vulnerable.

My husband Mitchell and I do something that is not terribly remarkable, but for which we get abuse. We hold hands in public. For that "temerity" we are subjected almost every other day to the death stare. And then we cop homophobic abuse. Words I had never dreamed of describing myself. I saw myself as being in love with my husband, not those terrible names. And that name calling will just get worse as the plebiscite campaign rolls along.

And where did we recently cop the death stare? As we were at Parliament House in Canberra, to see our local MP Trevor Evans, who is openly gay, give his maiden speech. As we walked up stairs to the entrance of Parliament House - yes we got it again- the death stare. The stare of hatred that just wants us to burn in Hell. The stare of malevolence. The stare of Medusa. All the more ironic to then hear Trevor talk in his maiden speech of his love for his partner Roger.

And on the Labor side? Knowing that Turnbull has nowhere to move, the ALP has decided not to support the plebiscite- and demand a free vote, knowing that Turnbull if he agrees to give it will no longer be Prime Minister. Instead of being the rooster, he will become in an instant the feather duster.

So where does this leave us? As Peta Credlin predicted before the election- in a likely stalemate that will last the term of this Parliament. This is deeply, deeply saddening.

Mitch and I married in the US last year. Over there and in other countries of the world our marriage is recognised. But not here. Not in our home. Here our marriage does not exist- because our politicians do not have the ability to lift above party politics and give us the reform that pollsters tell us time and time again the Australian people want- to allow the recognition of gay marriage. Our marriage is recognised in our eyes, in the law of other countries, including in the US, UK, France, South Africa, Brazil and even Colombia- but not here. Our marriage is recognised by our friends and family, and was celebrated in the presence of God. But that is not enough when the law of our homeland does not recognise our relationship.

Today a poll was released that said in every electorate there was a majority in favour of gay marriage- except one. And that one? Maranoa in outback Queensland, centred on Roma. That electorate and that electorate alone is the only one in the country against gay marriage- and by a very narrow majority. And yet even so it seems as though it will be years before our marriage and others like it will finally be recognised as is our right in our homeland.

Sunday, 21 August 2016

The triumph of the Sex Discrimination Act- making it easier to access IVF for LGBTI people

At the beginning of this month, exemptions under the Sex Discrimination Act to allow the States to discriminate against LGBTI people ended. The impact of these changes, which have been barely mentioned, is profound.

What is the Sex Discrimination Act?

The Sex Discrimination Act 1984 is Commonwealth or federal legislation. It prohibits discrimination in a range of activities, including the provision of services, to people with certain attributes, including single women, and LGBTI people. There are exceptions, including religious exceptions.

Being Commonwealth legislation it reigns supreme. Under our constitution (and for that matter the ACT self-governing act) if there is a conflict between a piece of Commonwealth legislation and State or Territory legislation, the Commonwealth legislation prevails to the extent of the inconsistency.

Adding LGBTI people came later, and was not part of the original purpose of the Act. To allow the States time to adjust to the changes, the Commonwealth allowed some exemptions, essentially so that the States could get their houses in order and compliant with the Sex Discrimination Act.

The Commonwealth was criticised by about 100 other nations in Geneva last Novermber at the UN for in essence being tardy on this point and allowing these exemptions to remain. The Commonwealth told the UN that it would remove the exemptions by the end of July 2016 (as also called for by then Human Rights Commissioner Tim Wilson ) and it has done so.

The demonstrated power of the Sex Discrimination Act

in the past, some States legislated to prohibit the provision of IVF to single women. It seems that only married women were good enough, in the eyes of their Parliaments to become parents. Well that fell foul of the Sex Discrimination Act, which prohibited discrimination on the basis of marital status. In two separate cases, the law was made plain- if a State law says that a doctor cannot provide treatment but the Sex Discrimination Act says that not to provide treatment is discriminatory- then the latter prevails.

The first case was that of Mrs Pearce. She was divorced and wanted to have IVF. She lived in South Australia. Her doctors refused to provide treatment- because she was not married, which would have been a breach of South Australian law. Mrs Pearce took the matter to the South Australia Supreme Court, which found that the Sex Discrimination Act prevailed, and she could have treatment.

Result: Sex Discrimination Act 1, State legislation: 0

The second case involved a well known Melbourne fertility doctor, Dr McBain, who was unable to treat a patient because she was single. Victorian law said only married women could access IVF. Dr McBain took the Victorian government to the Federal Court, which found that the Sex Discrimination Act prevailed, and the patient could have treatment.

Result: Sex Discrimination Act 2, State legislation: 0

What does this mean for IVF?

Quite simply, any State laws that prohibit the provision of IVF on the basis of the patient's relationships status or the patient being LGBTI are now rendered nugatory, due to being  inconsistent with the Sex Discrimination Act.

In South Australia, the Health Department recognised the problem and wrote to all the IVF clinics there and advised them of the change, telling them to get legal advice on a case by case basis. It is anticipated that later this year due to a process started by the Weatherill government, and in which I have input, laws will be passed in South Australia to remove discrimination in the ability of who can be a parent. But in the meantime, doctors now have an obligation to comply with the Sex Discrimination Act and provide treatment to those who were excluded before.

If in any doubt what a revolution this is, this is what s.9 of the Assisted Reproductive Treatment Act 1988 (SA) says about fertility doctors' licensing:

"(c)         a condition preventing the provision of assisted reproductive treatment except in the following circumstances:

                  (i)         if a woman who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (ii)         if a man who is living with a woman (on a genuine domestic basis as her husband) who would be the mother of any child born as a consequence of the assisted reproductive treatment is, or appears to be, infertile;
                  (iii)         if there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child conceived naturally;
                  (iv)         if—
                        (A)         the donor of the relevant human semen has died; and
                        (B)         before the donor died—
        •         the donor's semen was collected; or
        •         a human ovum (being the ovum of a woman who, immediately before the death of the deceased, was living with the donor on a genuine domestic basis) was fertilised by means of assisted reproductive treatment using the donor's semen; or
        •         an embryo had been created as a consequence of such assisted reproductive treatment; and
                        (C)         before the donor died, the donor consented to the use of the semen, fertilised ovum or embryo (as the case requires) after his death in the provision of the proposed assisted reproductive treatment; and
                        (D)         if the donor gave any directions in relation to the use of the semen, ovum or embryo (as the case requires)—the directions have, as far as is reasonably practicable, been complied with; and
                        (E)         the assisted reproductive treatment is provided for the benefit of a woman who, immediately before the death of the donor, was living with the donor on a genuine domestic basis."

In Queensland, the Anti-Discrimination Act allows discrimination in assisted reproductive treatment services on the basis of relationship status and sexuality- in other words the very mischief seemingly ended by the removal of this discrimination. The Queensland Health Department has not written to IVF clinics advising about the change.

Other States

Despite being called upon by then Human Rights Commissioner Tim Wilson last year for all the States and Territories to review their anti-discrimination laws to remove discrimination against LGBTI people, it seems none have.

What does this mean for discriminatory surrogacy laws?

That bit is unclear. While the doctor might be able to provide IVF, if the intended parent is discriminated against because of being single (ACT and SA), single male (WA), a gay couple (WA), or a same sex couple (SA) in the ability to obtain through the court a surrogacy order, then we run into trouble. While there is clearly discrimination, if it is not in breach of the Sex Discrimination Act, then a doctor might be compelled to provide treatment, but be told by the regulator that IVF cannot be provided in surrogacy (such as WA).

The sooner the ACT, WA and SA get rid of their discriminatory laws concerning surrogacy, the better. Intended parents should not now be trapped between these two laws.