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Labor won't silence same sex marriage advocates

By Kevin Boreham - posted Thursday, 19 August 2010

Labor leaders have a standard response to questions about gay marriage which is frustrating but not silencing its advocates. They could make a more constructive response.

First, Labor leaders say, “we believe that the Marriage Act should stay in the same way that it is now, so marriage would be defined as marriage between a man and a woman” (Prime Minister Julia Gillard on ABC’s Q&A August 9).

Kevin Rudd under pressure on Q&A on May 22, 2008, said that was his personal view. Penny Wong on the same program on July 26 this year refused to give her personal view. Graham Richardson silenced further questions with a tirade about Labor Party people who disagreed with “this stuff”.


Rudd and Gillard have responded to this question with inflexible negativity. Rudd gave a stone faced glare to a young man who asked why he and his boyfriend couldn’t get married. Gillard told her Q&A questioner “I suspect what I'm going to say now is going to disappoint you”: politicians usually do disappoint reform advocates but don’t so obviously relish saying so. Tony Abbott, responding to the father of gay son on Q&A on August 16, at least displayed some human empathy.

By contrast, former US Vice President Dick Cheney, when asked in Devonport, Iowa on August 25, 2004, about President Bush’s support for a Constitutional amendment banning same sex marriage, referred to his own gay daughter, and said that his personal view was that “people ought to be free to enter into any kind of relationship they want to”, and that marriage should be a matter for the States. Family values conservatives criticised him to no effect.

So why do Labor leaders stand, on this issue, to the right of the "evil" Dick Cheney?

Labor could take a more constructive approach by setting up a National Partnership Registration scheme along the lines of the Tasmania, Victoria, ACT and New South Wales registration schemes. This would require a transfer of power under s 51 (xxxvii) of the Constitution which should be forthcoming. This would replace the current weak Labor policy of “taking action to ensure the development of a nationally consistent registration framework”. Residents of South Australia, Queensland, Western Australia and the Northern Territory have to move inter state to register a partnership.

However, time may be running out for such practical compromises. In the US, a CNN poll published on August 11 showed for the first time a majority (52 per cent) in favour of a constitutional right to gay and lesbian marriage. The warm response of audiences when gay marriage has been raised during this election campaign suggests the Australian public also understands the issue of moral equality better than timid Labor leaders.

The second part of the automated Labor response on same sex marriage is that they’ve done enough for same sex couples already: Labor has fixed “all sorts of discriminations that have been in place against same sex couples” (Gillard), which was “the most important thing” (Rudd) and has done so in “the most comprehensive set of law reform in relation to gay and lesbian rights that the country has ever seen” (Wong). These claims are misleading.


All the Rudd/Gillard Government has done is to fix discrimination against same sex couples in Commonwealth legislation. This “comprehensive set of law reform” does not affect the common law, the laws of the States and Territories, or discrimination by individuals or corporate entities.

The Commonwealth could and should legislate to prohibit all discrimination on the grounds of sexual orientation. The UN Human Rights Committee found in 2003 that the prohibition against discrimination under article 26 of the International Covenant on Civil and Political Rights “comprises discrimination based on sexual orientation”. The Commonwealth Parliament’s external affairs power under s 51(xxix) of the Constitution allows the Parliament to legislate to give effect to Australia’s obligations under any treaty, and it has already done so in respect of other human rights Conventions in the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.

The Rudd Government confirmed that it had no intention of legislating to prohibit discrimination against gays and lesbians when it announced its “reform of anti-discrimination legislation” on April 21. This “reform” will consist only of “consolidating” the existing Commonwealth anti-discrimination legislation, that is the two Acts referred to above with the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.

Labor leaders should stop pretending that they have acted effectively to recognise same sex partnerships and end discrimination against gays and lesbians.

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About the Author

Kevin Boreham teaches law at the ANU College of Law.

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