This is a guest post by Sam Butler of Queer Penguin
For the purposes of this article, let’s optimistically assume the following: Labor wins this year’s federal election; Labor and the Greens and/or Democrats form a Senate majority; and Labor implements its promises within its first term of office.
Fanciful I know, but necessary for the sake of argument, as it was with such assumptions in mind that Labor recently outlined its GLBTI policy in Sydney to a small but passionate assortment of believers and cynics, organised by the Gay and Lesbian Rights Lobby and featuring Labor candidates for inner-city seats as well as the party’s would-be Attorney General, Senator Joe Ludwig.
As all speakers went to great lengths to make clear, Labor is a better option than the Howard government where ending legislative discrimination against same-sex couples is concerned. Labor is committed not only to amending the 58 laws identified in HREOC’s Same Sex: Same Entitlements report, but also an even more comprehensive audit of additional laws and departmental policies. Sydney MP Tanya Plibersek and Wentworth candidate George Newhouse articulated a thorough understanding of other key issues concerning GLBTI folk, including domestic violence and the rise of assaults on Oxford Street, with corresponding action plans.
So far, so good. It’s at the next step – formal recognition of same-sex couples – where things get tricky.
In one of the more laboured policy statements in recent memory, Labor’s 2007 National Platform and Constitution claims that:
‘Labor will take action to ensure the development of nationally consistent, state-based relationship recognition legislation that will include the opportunity for couples who have a mutual commitment to a shared life to have those relationships registered and certified. This legislation will: be based on the scheme that has existed in Tasmania since 2004 and that the Victorian government has announced its intention to introduce; (and) not create schemes that mimic marriage or undermine existing laws that define marriage as being between a man and a woman.’
Essentially, Labor is washing its hands of a federal civil union or partnership scheme. Spooked by the gay marriage boogeyman, the party is instead offloading responsibility to the states to follow Tasmania’s and Victoria’s lead, establishing their own state-based registries in the hope that a uniform national law would be created through mirrored legislation in each state and territory (bearing in mind that Victoria’s registry is still far from done and dusted). Senator Ludwig offered the example of uniform evidence laws, in which states have individually passed identical evidence acts to create a nationally consistent model. He argued that one advantage of this approach is bypassing the Commonwealth parliament, which could be convenient in the particularly horrific event that Family First wins the Senate balance of power.
However, Ludwig’s plan, though no doubt well-intentioned – and by all reports, he’ll be an approachable and informed federal AG for our community to lobby and work with – also seems somewhat naïve. He spoke of a ‘journey’ in which all states can eventually be convinced of the value of registries and motivated to legislate accordingly. But with NSW’s Attorney General, John Hatzistergos, having already made unequivocally clear he does not support enacting Tasmania’s scheme, it’s difficult to see what Ludwig will say or do to change his mind – or to see a clear timeframe in which this will occur. The bovver boys in NSW Labor Right comprise homophobes who would put John Howard’s Family Values warriors in the shade – and they never give anything up without a fight.
Furthermore, Joe ‘Dutchman who hates dykes’ de Bruyn, national secretary of the Shop, Distributive and Allied Employees Association, also happens to be a member of the ALP National Executive. And in June this year the SDA shafted Adelaide University law lecturer and South Australian senator Linda Kirk, in place of their national president Don Farrell, as punishment for Kirk’s sin of deviating from the Catholic union’s propaganda vote on stem cell legislation. Such men may have lost their battle against the fags and dykes in Tasmania and Victoria, but are still heavily armed and primed for further tactical assaults in other states.
Is the solution, then, that all same-sex couples wishing to be ‘registered’ move to Hobart or Melbourne? Waiting for state-based legislation creates a new layer of delay and potential resistance that could easily be avoided through a Commonwealth law. If NSW and other states – quite likely SA, for example – do not wish to enact registries, they have a reasonable defence of autonomy against any pressure exerted by their federal counterpart. To remain consistent, those of us appalled by the Howard government’s trampling of the ACT’s civil unions legislation in 2006 could not reasonably expect a Rudd government to force intransigent state governments into action. Furthermore, there will eventually come a time when Labor does not have uniform state governments – and there’s little hope a NSW O’Farrell Coalition government, for example, would be any less reluctant than the Iemma Labor government, particularly while ‘Godfather’ David Clarke is calling the shots.
The most frustrating aspect of Labor’s policy is the overriding sense of how it walks like a duck and quacks like a duck, but somehow ends up classified as a penguin. If implemented effectively, federal Labor’s plan would provide same-sex couples with all the same entitlements, rights and responsibilities as heterosexual de facto couples. Ludwig made clear he would not prevent same-sex couples from holding ceremonies in which they made their commitment public. He also specified that same-sex families would not be treated any differently and that unlike the Coalition’s (barely touched) approach of creating a category of ‘interdependent’ couples, same-sex couples would clearly be considered de facto – that is, the sexual component of our relationships would not be airbrushed out of the legislature.
So why is Labor avoiding a federal civil union scheme on principle, when in practice its alternative is essentially an unnecessarily complicated means to the same end? Is this part of Kevin Rudd’s utopian vision of uniform state and federal Labor governments working together harmoniously, ‘ending the blame game’? Or is this consistent with Rudd and Labor’s general approach to be a little bit different from John Howard and the Coalition, but not so different as to frighten the horses – swinging voters in marginal seats – or indeed Rudd’s own socially conservative beliefs?
Whatever the reason, after 11 years the GLBTI community desperately needs a federal government that will deign to recognise our needs and concerns and act accordingly. And as seems to be the common theme in this election, though I’m both disappointed and concerned by Labor’s policy, I know it literally could not be any worse than the current alternative.
For the moment, that’s all that’s necessary isn’t it? If you want to start stirring up the religious groups with talks of “marriage” (it’s a specifically religious term to them), the whole thing will end up in the too hard basket. We’ve had 11 years of conservatism, it might be better to start out walking than break into a sprint at the first opportunity. Remember, the “uglies” are just as prevalent in the right of the Labor party as they are in the right of the Liberals, and perhaps more influential (excepting NSW).
For the moment David, yes - but even as a compromise model designed for walking rather than sprinting, it sets up a whole bunch of hurdles that could easily be avoided with a comprehensive federal policy of civil unions or partnerships instead of waiting for the states to act. No mention of the M word, no obligation for churches to solemnise s-s couples. Everybody wins.
I suspect you’re right however, that this is as much about appeasing Labor’s internal uglies as it is avoiding the perception by swinging conservative voters and a hostile media commentariat that Labor is ’soft’ on teh gay.
Sam, do you know if these civil partnerships would be open to heterosexuals too?
as an aside, surely it’s fairly clear by now that Ludwig won’t ever be AG, regardless of whether his party wins election?
It would depend on the eventual model adopted, suz. The UK CP model for example is only available to s-s couples, but in New Zealand civil unions are available for heterosexual couples as well.
From memory, Ludwig argued that it would be unconstitutional for the Commonwealth to legislate for registries, hence offloading to the state, but federally Labor could of course legislate for unions or partnerships if it so chose.
The same scenario goes in a different direction.
If your Labor Reps / Labor-Green-Democrat Senate gets up, they can do what they like. With the justification that coordinating the states is simply too hard, they will be able to put up their Commonwealth scheme of choice. With 71% of the population in support of same-sex relationship recognition, the voices claiming that they are exceeding their mandate will be drowned out.
de Bruyn and his homophobic mates get boo-ed at Labor gatherings now - I can’t imagine that they’ll suddenly become popular if Labor achieves government.
How much of Labor’s current policy is just window-dressing? How much of it is simply a placeholder for a real, achievable arrangement should they get a working majority in the Senate? Alternately, to what extent is it deliberately unworkable, so that they can walk away from it should they have to work with a hostile Senate?
The federal government can only legislate on marriage by virtue of a provision in the Constitution which gives it power in relation to “matrimonial causes”. With the current composition of the High Court (and the likely composition well into the future given the number of Howard government appointees) it’s unlikely that the constitution would be interpreted to include same sex partnerships in the category of “matrimonial causes”. The extension of the Family Court powers to cover children of de facto couples (rather than hose legally “married”) was, I think, only made possible by referral of state powers or parallel state legislation which has conferred state jurisdiction on the Family Court.
In the light of this, the only realistic medium term hope for registering same sex partnerships would be either state based legislation or referral of state powers to the commonwealth. No doubt the Commonwealth could actually operate a register, but it would be relying on state legislative backing.
I think that’s probably why the focus is on removing all discrimination in federal legislation which treats conventional “marriage” relationships differently from others.
It’s time—to hold hands!
As much as I love a good election, I confess I’m not the least bit excited by the two leading suitors for my favours at this year’s Miss Your Federal Representative 2007.
On the one hand there’s John. Poor devil. He’s wicked—and don’t we all know, even like that at times—but he does so keep on bragging about how he and Janette are so hot together, made in heaven and all that sacred stuff, far better apparently than anything I or you could ever achieve, yet he expects a tickle in the booth for nothing more than a slap in return.
On the other hand, there’s Kevin. Saintly, bicunninglinguist. He’s new to the scene—and we all know that’s an attraction—but he too goes on and on about how he and Therese are so hot together, made in heaven and all that sacred stuff, far better apparently than anything I or you could ever achieve, yet he also wants a bit of tickle for little more than a promise that he’ll further review not slapping us then pass on whatever remains to his stately cousins to review some more.
Well, I’ve heard enough bragging and promises; I’ve had enough of John and Kevin’s dirty tricks. No chocolates. No flowers. The evidence is in. That’s why this year, when I go to vote, I’ll be holding hands with the man who I not only trust and respect, but also very much love.
Enjoy your election.
Why doesn’t the commonwealth FOR ONCE just bung its cock on the block and grant marriage to gays under the same (amended) Marriage Act (1953)? And actually CALL IT marriage, not this euphemistic ’same-sex’ shit.
It can’t honestly be categorically ’suicidal’ as all pollsters apparently forecast. The factional arseholes are going to piss eskies, obviously, along with the other usual suspects, but the electoral reaction? All politics is local! They won’t give a shit. Should it just be shoved through, Australia will promptly realise that crying over gay marriage is as moronic as crying over water fluoridation was in the Seventies.
I have no personal interest in making gays equal citizens to heteros; I’m just shat by people who take positions with absolutely zero basis in rationality, logic or critical analysis, such as opposition to this stuff. They’re on the same level as religious fundies.
Here’s to the Democrats defying the odds and retaining a seat or two. (And finding a replacement for Allison while they’re at it…)
“And actually CALL IT marriage, not this euphemistic ’same-sex’ shit.”
Exactly! All this registers, civil unions etc. stuff is just semantics. Marriage is a word and it’s not owned by religion.
If the religious sects don’t want to marry two people in their buildings so be it.
People either forget or don’t know that marriage is a state-controlled function in Australia. A priest, a rabbi or whoever cannot perform a marriage in this country unless they are licensed by the state. The marriage certificate issued by a church is not a legal document nor legal recognition of marriage: only the state issued marriage certificate does that.
If same-sex marriage is made legal it’s not going to be compulsory for heterosexuals (nor homosexuals) just as decriminalisation of homosexuality didn’t turn us into a nation of poofs overnight.
And in the end it’s NOBODY’S business except those it affects.
Great post Sam. Although I did have trouble sleeping after that “FF wins balance of power in the Senate” line.
One of my girlfriends is a lesbian. Apparently, there is a lot of division in the gay community about the ‘gay marriage’ issue. My friend is very much against it. She argues, “I don’t want the State anywhere near my love-life.”
I call shenanigans, which is why the comment above now bears the Mark of the Troll.
The IP number is a shared one at UNSW, and something about the style is rather familiar, isn’t it?
suz asked:
Melbourne City Council’s relationships register is open to all couples. I’m the proud co-owner of one of the shiny certificates they give you. I live in hope that the Victorian ALP MPs will get off their arses and implement a similar scheme. I don’t like the odds though. But should they do so, it would be consistent if they made the register open to any couple, irrespective of their gender.