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'I'm glad he didn't look in the sky': the postal survey breaches children's rights

By Holly Doel-Mackaway - posted Thursday, 28 September 2017


The Federal Government's decision to hold a postal survey on same sex marriage contravenes international human rights standards on many levels-this has been discussed widely. What is not being discussed though is how the postal survey, and much of the ensuing public discourse, is harmful to children's welfare, and breaches children's rights at international law.

The Federal Parliament's decision to hold a postal survey in preference to utilising their power to legislate for same sex marriage under s51 (xxi) of the Australian Constitution is a backward step with respect to Australia's duties to protect, promote and fulfil children's human rights.

Children and young people in same sex families constitute a small, but significant, minority of the Australian population and their views about marriage equality are not being sought. These voices are absent in the discourse about marriage equality. This is not because this group of children and young people have nothing to say - it is because the Federal Government has not asked them, consequently, their views are not informing the decision-making process. Failing to seek children and young people's views about marriage equality contravenes the Australian Government's duty under article 12 of the Convention on the Rights of the Child - this requires the Australian Government to ensure children are provided with the opportunity to freely express their views about matters affecting them, and give 'due weight' to these views in decision-making processes.

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Not only are children and young people's views not being sought but the circumstances surrounding the postal survey are directly harmful to children in same sex families because a spotlight has been shone on them, on their parents, and on their family unit-and public places are being used to speak out against these children's reality. The fact that the Federal Government has orchestrated, and in doing so legitimised, a climate where children from same sex families are being subjected to a public 'no campaign' is inconsistent with children's right to protection from abuse under article 19 of the Convention on the Rights of the Child.

A week ago, when the words 'Vote No' were written four times in the sky above Sydney I spoke with my friend who is in a long term same sex relationship. My friend and her partner have a 9-year-old son (I will refer to their child as Sam). My friend reflected her experience of seeing the writing in the sky, she said:

I was washing my car with my son and I saw the words 'vote no' written in the sky. Thankfully my son didn't see it and my partner was inside so she didn't see it either.

My friend said she felt "embarrassed, sad and angry" seeing that in the sky "because we are no different to anyone else and now for the first time in 15 years, all of a sudden, I feel different."

At the same time, a few streets away, Sam's best friend, also 9 years old, saw the writing in the sky and said to her mother:

Thank goodness Sam isn't here to see that. It would make him feel embarrassed.

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She didn't realise that Sam could have seen it if he had looked up.

By holding the postal survey, the Federal Government is responsible for making children and young people of same sex parents vulnerable to public abuse as they are facing unprecedented incidents of public humiliation. They are being subjected to public displays that criticise and diminish their parents and their family unit. They are seeing people holding placards outside shopping centres that say 'It's ok to vote no', they are finding leaflets with unsubstantiated claims about the dangers of voting yes posted anonymously in their letter boxes, and if they looked up on Sunday they would have seen written disapproval of their family unit emblazoned in the sky. This is a grossly unacceptable way for a 'civil society' to treat children and young people.

This week rectors from two elite catholic schools spoke out in support of marriage equality by writing to parents and staff in their school newsletters. The reasons they cited for supporting marriage equality were informed by the views expressed by children and young people themselves (presumably students at their schools). Father Chris Middleton, rector of Melbourne's Xavier College, spoke about there being a "real disconnect" between the church's views and the attitudes of young people about marriage equality. He writes: "In my experience, there is almost total unanimity among the young in favour of same-sex marriage, and arguments against it have almost no impact on them."

The Federal Government has failed in its duty to protect, promote and fulfil the rights of children in same sex families by refusing to legislate on same sex marriage and deferring their responsibilities for law reform in this area to the Australian adult population. In doing so the Federal Government has defined equality before the law not as a matter of inalienable human rights, but as a matter of public opinion.

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Note: the children represented in this article, and their parents, provided written and verbal consent for their statements to be represented.



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About the Author

Holly Doel-Mackaway is a children’s rights lawyer and academic at Macquarie University Law School.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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