2SER interview—marriage equality

Listen to an interview on Sydney radio 2SER concerning the marriage equality debate

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Law and the marriage equality debate

On 18 October 1973, former Liberal Prime Minister John Gorton moved a motion in the House of Representatives that ‘homosexual acts between consenting adults in private should not be subject to the criminal law.’ The motion was seconded by Labor Attorney-General in the Whitlam government, Moss Cass. Dr Cass no doubt accurately reflected the times when he said:[1]

Australia does not look favourably upon homosexuals. In our predominantly conformist, overtly masculine society, focused on the 2-child nuclear family mushrooming in suburban wastelands, the homosexual is an unwelcome outsider. Unmasculine by popular consensus, unmarried, non-fathering, anti-suburban, homosexuals are Australia’s most obvious minority group. In this country the homosexual is not merely shunned as a moral leper or despised as a pervert, he is actively discriminated against. Our criminal penalties are severe, and our social sanctions savage. At a particularly barbaric level ‘poofter-bashing’ is virtually a recognised national civilian team sport, while police harassment in some States is accepted as an office perk by the police and as an occupational hazard by the victim.

Sir John Cramer, a Liberal member of the House of Representatives, opposing the motion, worried that the decriminalisation of homosexuality would ‘open the door to the recognition of homosexuality as a normal way of life’, when it was instead ‘a distorted way of life’ and an ‘obnoxious habit’. He said that decriminalisation ‘would bring down on Australia a further advance of the permissive society that is so destroying the fabric of the moral rectitude of the Australian people.’

Gorton’s motion, which had no legal effect, passed by 64 votes to 40. In the years following the motion, however, legislation removing provisions of the criminal law that penalised homosexual sexual activity was progressively passed in each State and Territory, beginning in South Australia in 1975 and concluding in Tasmania in 1997.[2]

In the course of his second reading speech for the Crimes (Sexual Offences) Bill 1980, Haddon Storey QC, who was then Attorney-General in the Hamer Liberal government, outlined the Victorian government’s rationale for abolishing the offences of buggery and gross indecency between males:[3]

It does not represent any approval or condonation of these activities. The Government does not accept sexual relationships between persons of the same sex as an acceptable alternative lifestyle. Nothing in the Bill is intended to give any support to such attitudes. The Government simply believes that they are not matters for the criminal law.

Another Liberal, Murray Hamilton MLC, spoke against decriminalisation, on the ground that it was no more than the obsession of ‘a small number of homosexuals’. He warned that decriminalisation was ‘the greatest single step towards self-destruction than can be taken by any civilized society’, before presciently resorting to the slippery slope:[4]

The Government will come under increasing pressure to approve a homosexual marriage and to grant homosexual couples living together the right to adopt children.

Hamilton was not alone. The then member for Doncaster, Morris Williams MLA, citing the pronouncements of various religious leaders, thought that ‘homosexual practice is a debasement of human nature to the detriment of society’ and that decriminalisation was ‘but the first step towards public acceptance and legal recognition of the alternative life styles and sexual living-together arrangements that could undermine society as we know it.’[5] The National Party opposed decriminalisation as a bloc, on the basis that homosexual activity was ‘repugnant’, ‘completely unnatural’ and ‘not carried out in the animal world’.[6]

The Victorian decriminalisation legislation ultimately passed easily by a vote of 72 to 7 in the Legislative Assembly, and without a division in the Legislative Council. The new law came into effect on 1 March 1981.

From a modern perspective, the anxiety of the State Parliament, more than two generations ago, to condemn homosexuality, even as it passed legislation to decriminalise it, appears laughingly begrudging. The arguments harnessed against the reform would be just laughable, but for the harm they no doubt did to generations of gay men and lesbians, who reportedly continue to attempt suicide at up to 14 times the rate of their heterosexual peers.[7] Yet clear echoes of that mentality resound today.

In October 1986, the future Pope Benedict XVI, in his then capacity as Prefect for the Congregation for the Doctrine of the Faith, said that homosexuality was ‘a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination must be seen as an objective disorder.’[8] He returned to the theme in July 2003, declaring that ‘There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law.’ He went on:[9]

When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral.

In March 2010, then federal opposition leader, Tony Abbott, said he felt ‘a bit threatened’[10] by gay people, elaborating that ‘there is no doubt that it challenges, if you like, orthodox notions of the right order of things’.[11] Throughout his tenure as Prime Minister, Mr Abbott was consistent in his opposition to the legalisation of marriage as between two persons of the same sex—marriage equality—arguing  from tradition, however, rather than from scripture or religious obligation.

In March 2011, then Prime Minister Julia Gillard opposed marriage equality ‘because of the way our society is and how we got here’. She said, ‘If I was in a different walk of life, if I’d continued in the law and was partner of a law firm now, I would express the same view, that I think for our culture, for our heritage, the Marriage Act and marriage being between a man and a woman has a special status.’[12] Ms Gillard’s subsequent public pronouncements on marriage equality suggest, to put it kindly, that the veracity of that statement is to be doubted. In September 2014, after leaving parliament, she suggested that her opposition to marriage equality was borne not of respect for the special status of marriage, but of ‘an old-fashioned, feminist view’ that there should be some way, other than marriage, ‘of solemnising relationships and recognising them as of worth and status.’[13] In August 2015, she said she had changed her view, and would now vote in favour of marriage equality.

Marriage equality has been achieved in a significant number of countries, including all of the other major English-speaking democracies.[14] Opinion polls consistently show strong and growing support in Australia. A Fairfax/Ipsos poll taken in November 2010, for example, put support at 57% and opposition at 37%, with 6% undecided. By June 2015, the same poll showed 68% in favour and 25% opposed, with 7% undecided. Those results show a percentage of the population in favour of marriage equality that is similar to or greater than reported public polls in a number of comparable countries where reform has already occurred.

Country Date legalised Poll In favour Against
Canada 2003 Forum Research, June 2015 70% 22%
France 2013 Ifop, November 2014 68% 32%
New Zealand 2013 NZ Herald, March 2013 50% 48%
England 2014 BBC, March 2014 68% 26%
Ireland[15] 2015 Ipsos, May 2015 58% 25%
United States 2015 Washington Post/ABC News, April 2015 61% 35%
Australia Fairfax/Ipsos, June 2015 68% 25%

The prohibition on same sex marriage in Australia

Same sex marriage was legalised in most Canadian provinces and territories in 2003.[16] In 2004, two Melbourne-based same sex couples, who had married in Canada, applied to the Family Court for recognition of the validity of their marriages under section 88D of the Marriage Act 1961 (Cth), which at the time contained no definition of the term ‘marriage’. Those applications were the impetus for the introduction into the federal parliament of the Marriage Amendment Bill 2004. The Bill relied for its constitutional validity upon section 51(xxi) of the Commonwealth Constitution, which gives the federal parliament the power to make laws with respect to ‘marriage’, a term not defined in the Constitution.

The Bill contained only two substantive provisions: a definition of ‘marriage’ as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’, a definition derived from the speech of Lord Penzance in Hyde v Hyde,[17] and the introduction of a new section 88EA, providing that a union solemnised in a foreign country between a man and another man, or a woman and another woman, ‘must not be recognised as a marriage in Australia.’ Mr Ruddock explained the urgency of the Bill in his second reading speech on 24 June 2004:[18]

The bill is necessary because there is significant community concern about the possible erosion of the institution of marriage. The parliament has an opportunity to act quickly to allay these concerns. The government has consistently reiterated the fundamental importance of the place of marriage in our society. It is a central and fundamental institution. It is vital to the stability of our society and provides the best environment for the raising of children. The government has decided to take steps to reinforce the basis of this fundamental institution.

He went on to deliver a lecture to same sex couples, such as those whose applications were then pending before the Family Court:

As a result of the amendments contained in this bill, same-sex couples will understand that, if they go overseas to marry, their marriage, even if valid in the country in which it was solemnised, will not be recognised as valid in Australia.

The Bill passed with bipartisan support and without a division in the House of Representatives. In the Senate, the Bill was unsuccessfully opposed by the Australian Democrats and the Greens.

Marriage equality legislation before the federal parliament

In the 42nd parliament (Rudd/Gillard), the Greens introduced a marriage equality bill in the Senate. It was rejected by a vote of 45 to 5 on 25 February 2010.

In the 43rd parliament (Gillard/Rudd), Greens MP Adam Bandt, and independent MP Andrew Wilkie, presented a marriage equality bill to the House of Representatives on 13 February 2012. It lapsed without a vote. On 19 September 2012, the House of Representatives rejected a marriage equality bill introduced by Labor backbencher, Stephen Jones, by a vote of 98 to 42. The following day, the Senate rejected a corresponding bill introduced by four Labor Senators by a vote of 41 to 26. In February 2013, the Greens reintroduced marriage equality legislation in the Senate. It lapsed without a vote upon the dissolution of parliament in August 2013.

In the present parliament (Abbott/Turnbull), the Greens introduced marriage equality legislation in the Senate in December 2013. In November 2014, Liberal Democratic Party Senator David Leyonhjelm introduced a further private member’s bill. In June 2015, opposition leader Bill Shorten introduced a bill in the House of Representatives. In August 2015, Warren Entsch introduced a cross-party bill in the House of Representatives. There has not been, nor is there likely to be, a vote on any of those bills in the current parliament.

Marriage equality in the ACT

On 22 October 2013, the parliament of the Australian Capital Territory passed the Marriage Equality (Same Sex) Act 2013. The Act passed by nine votes to eight, supported by the Labor government and the Greens, but opposed by the Liberals. It defined ‘marriage’, for the purposes of the Act, to mean ‘the union of 2 people of the same sex to the exclusion of all others, voluntarily entered into for life’, but not including ‘a marriage within the meaning of the Marriage Act 1961’. The definition was thus an attempt to avoid any overlap—and therefore inconsistency—with the definition of marriage inserted into the Marriage Act 1961 (Cth) in 2004.

The ACT Act commenced operation on 7 November 2013, but did not permit marriage ceremonies to be performed until 7 December 2013. The Commonwealth challenged the validity of the Act in the High Court. Argument occurred on 3 December 2013, and judgment was delivered on 12 December 2013.[19] Between 7 and 12 December 2013, at least 15 same sex couples took advantage of the legislation by marrying under the Act.

In Commonwealth v ACT, the High Court unanimously ruled that the ACT Act was incapable of operating concurrently with the Marriage Act 1961 (Cth) and hence of no effect. The court said that the Commonwealth Act ‘makes the provisions which it does about marriage as a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage,’[20] and necessarily contains ‘the implicit negative proposition that the kind of marriage provided for by the Act is the only kind of marriage that may be formed or recognised in Australia.’[21] It followed that the ACT Act was inoperative by reason of section 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth), which provides relevantly, in substance, that a provision of an ACT law has no effect to the extent that it is incapable of operating concurrently with Commonwealth legislation in force in the ACT.

In the course of its judgment, the High Court traced the history of common law decisions touching upon the meaning of the term ‘marriage’ in English and Australian jurisprudence, before concluding that it was to be understood in section 51(xxi) of the Constitution as referring to ‘a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.’[22] The court said that section 51(xxi) grants to the Commonwealth parliament the power ‘to make a national law with respect to same sex marriage.’[23]

Current debate

Of the four marriage equality bills presently before the federal parliament, only the cross-party Marriage Legislation Amendment Bill 2015, introduced by Liberal MP Warren Entsch on 17 August 2015, stood any chance of coming to a vote. That hope was, however, dashed on 11 August 2015 when, after a six-hour debate in a joint party room meeting of members of the Liberal and National parties, members voted by about 60 to 30 against their being given a free vote in respect of the bill. The effect of that vote was to bind all Ministers to oppose marriage equality legislation in the current parliament, and to require backbenchers to cross the floor, and risk damage to their career prospects, in order to vote in favour of marriage equality. The then Prime Minister announced later that evening that following the next election, Coalition members would either get a free vote, or the public would get to vote on the issue. He said:

I’ve come to the view, I believe this is the party room view, that this is the last term in which the Coalition party room can be bound, although we will definitely maintain the current position for the life of this term.

Going into the next election, we will finalise another position.

The disposition of the party room this evening is that our position going into the next election should be that in a subsequent term of parliament, this is a matter that should rightly be put to the Australian people.

The position of the federal Labor opposition is that its members have a conscience vote in respect of marriage equality in the current and next parliaments, but will be bound to vote in favour of it in the following parliament. The opposition leader has opposed putting the issue to the people by way of a referendum or plebiscite, and undertaken to introduce marriage equality legislation within the first 100 days of the election of a Labor government.

Following the decision of the Coalition joint party room not to allow its members a free vote on marriage equality in the current parliament, debate turned to the form in which the question of marriage equality might be put to the people. On 12 August 2015, Scott Morrison, who opposes marriage equality, suggested a full constitutional referendum. The Attorney-General, George Brandis, who favours marriage equality, said a referendum was ‘entirely unnecessary’, having regard to the High Court’s clear statement in Commonwealth v ACT that the marriage power in the Constitution empowered the federal parliament to legislate for same sex marriage.

The Attorney-General is plainly correct. The only rational subject matter for a referendum, in light of the High Court’s interpretation of section 51(xxi), would be a proposal to amend parliament’s existing legislative power, presumably by defining ‘marriage’ as an exclusively heterosexual institution. Unsurprisingly, no-one has suggested such a referendum.

Since becoming Prime Minister, Malcolm Turnbull’s position has been to adhere to the position of his predecessor, promising a national plebiscite on marriage equality after the next election. The Prime Minister gave a commitment to maintain the government’s extant position to the National Party in the course of negotiating a fresh Coalition agreement in the days after he replaced Tony Abbott.[24]

There have been only three national plebiscites in the history of our federation. None provides a useful precedent for marriage equality.

Plebiscites were held in October 1916 and December 1917—almost a century ago, and decades before the ready availability of reliable, national opinion polling—to test the public’s attitude towards then prime minister Billy Hughes’ plan to introduce conscription during World War I. The 1916 plebiscite failed overall (by 48.4% to 51.6%) and in New South Wales, Queensland and South Australia. A majority of voters was in favour, however, in Victoria, Western Australia, Tasmania and the Territories. A further plebiscite, in respect of a more limited conscription proposal, was held in 1917. It too failed (46.2% to 53.8%), with a majority of voters in favour only in Western Australia, Tasmania and the Territories.

The third plebiscite occurred in 1977, when voters were asked whether they wished to retain God Save the Queen as Australia’s national anthem, or to replace it for non-regal and vice-regal occasions with Advance Australia Fair, Waltzing Matilda or Song of Australia. 43.3% of voters favoured Advance Australia Fair, with 28.3% preferring Waltzing Matilda, 18.8% God Save the Queen and 9.6% Song of Australia. Advance Australia Fair was the most popular choice in all jurisdictions other than South Australia, which preferred Song of Australia, and the ACT, which favoured Waltzing Matilda. The then Fraser government did not act on the will of the people. Advance Australia Fair only became the national anthem on 19 April 1984, when Bob Hawke was the Prime Minister. Important though it may have been, the 1977 plebiscite involved no question of civil rights or conscience.

The Australian Electoral Commission estimates that a plebiscite on the question of marriage equality would cost $158 million if held separately from a federal election, and $44 million if held at the same time as the next election.[25] Those figures do not include any allowance for public funding of the competing campaigns. If public funding were to be extended to the competing campaigns, it is difficult to see how that could be done equitably. Equal funding of the competing cases would imply that the competing arguments are of roughly equal merit: a proposition that does not withstand scrutiny when applied to any civil rights question. Consider, for example, the 1967 referendum concerning removal of the words ‘other than the aboriginal people in each State’ from section 51(xxxvi) of the Constitution. If the yes and no cases had been publicly funded to an equal extent, the no case, which ultimately attracted only 9.23% of the vote, would have been artificially boosted.

The proposal for a plebiscite on the question of marriage equality is an abrogation of the responsibility of the parliament to legislate for the peace, welfare and good government of the Commonwealth. Australian parliaments routinely legislate in respect of matters of civil rights or conscience without resort to plebiscites or referenda. Conscription was introduced in 1942 for the remainder of World War II, and compulsory national service operated during the Korean and Vietnam Wars, without the matter being expressly put to the people. Women were given the vote, the death penalty was abolished, homosexuality decriminalised, no-fault divorce introduced, the White Australia Policy reversed, and detention centres for asylum seekers set up in the Pacific Islands—all without the mandate of a plebiscite or referendum.

The legalisation of marriage as between couples of the same sex has become one of the totemic civil rights struggles of our times.

The arguments most commonly advanced against marriage equality boil down to assertions that extending marriage to same sex couples will weaken the institution, that marriage is about children, and that legalisation of same sex marriage will lead to calls for the legalisation of polygamy (or, as Senator Cory Bernardi asserted in 2012, bestiality),[26] arguments from scripture or religious belief, and resort to tradition.

Marriage equality has been legislated in all of the countries we routinely compare ourselves with, and many others besides. In the Netherlands, where same sex marriage was legalised in 2001 and the most reliable statistics are available, same sex marriages account for about two per cent of total marriages. The divorce rate for same sex married couples is about one-half that of heterosexual couples.

The sanctity of traditional marriage has been challenged by a host of phenomena, from no-fault divorce, to drunken ceremonies in chapels in Las Vegas, to reality television programs in which heterosexual couples ‘marry at first sight’. Around one-third of marriages already end in divorce.

It cannot sensibly be contended that a foundation stone of our civilisation will crumble if something in the order of two per cent of future marriages are celebrated by same sex couples. Nor can blame for debasement of the institution of marriage be laid at the feet of those now conscientiously fighting for entry.

The attempted linkage of marriage with a natural law argument that men and women are complementary, that reproduction depends on men and women, and that children need a mother and father, is also fundamentally flawed.[27] The institution of marriage is not denied to infertile heterosexuals, men who have had vasectomies, or women who have passed menopause; and marriage is not a requirement for child-bearing or rearing. Moreover, to deny entry to the institution to same sex couples who have children is to risk harm to those children and to signify that their families are somehow worth less than the families of opposite sex couples.

The slippery slope argument is equally without merit. There is no apparent demand in Australia for the legalisation of polygamy. Even if there were, the arguments for and against the legalisation of polygamy are different from those that pertain to same sex marriage, not the least because of the typically unequal, and usually patriarchal, nature of polyamorous relationships.

Arguments from scripture or religious belief, while of course entitled to a degree of respect, ought not to carry weight in relation to the definition of a civil institution in a secular society. Religious objections can readily be accommodated by provisions of the kind set out in clauses 8 and 10 the Marriage Legislation Amendment Bill 2015 introduced to the parliament by Warren Entsch on 17 August 2015, which provide that ministers for religion and chaplains may refuse to solemnise marriages for any reason, including incompatibility with their understanding of the doctrines, tenets, beliefs or teachings of their denomination, church or faith group.

Some opponents of marriage equality raise the spectre of bakers and florists being fined for refusing against their conscience to provide cakes and floral arrangements for same sex marriage ceremonies, as has occurred in the United States. That argument, too, is specious. The Equal Opportunity Act 2010 (Vic) already prohibits direct and indirect discrimination on the grounds of, among other attributes, lawful sexual activity and marital status. Equivalent provisions have long operated throughout Australia, without any apparent impact upon cake and flower vendors. There do not appear to have been any calls to exempt bakers and florists from their current obligations under anti-discrimination legislation.

Finally, the plea from tradition ignores the evolution of the institution of marriage over time. In the absence of demonstrably negative consequences, tradition is not an argument against reform, any more than it was an argument against the introduction of universal suffrage; or the abolition of slavery, prohibitions against miscegenation or the White Australia policy.

The arguments against marriage equality, individually and collectively, are so lacking in persuasive merit that they must be a proxy for something else, the obvious candidate being a lack of acceptance of homosexuality as a normal and natural predisposition. It is hard not to conclude that the arguments are smokescreens for a lingering distaste for and intolerance of homosexuality, with a direct lineage to those that were trotted out at the time of the decriminalisation debate more than two generations ago. They are a refusal to accept that couples of the same sex should be treated as the equals of opposite sex couples.

Opponents of marriage equality have recently taken to accusing proponents who deconstruct their arguments in this way of being intolerant or bigoted. Lyle Shelton, for example, a spokesperson for the Australian Christian Lobby, told a Senate committee on 11 September 2015 that ‘many’ on his side of the debate felt fear and intimidation. Having regard to the long history of religious and political leaders branding gay men and lesbians as intrinsically morally evil, objectively disordered, a challenge to the orthodox notion of the right order of things, and repugnant and completely unnatural, there is a breathtaking hypocrisy in that charge. In any event, it is not intolerant or bigoted to call out hollow arguments and hypocrisy.

It is true that, for most purposes, Australian law no longer distinguishes between married and de facto couples, including between married couples and same sex de facto couples. Same sex partner visas have been available in Australia since 1991. The Family Court has had jurisdiction since late 2008 with respect to property and parenting disputes involving same sex de facto partners. Assisted reproduction and adoption laws have been amended in a number of States.

In some areas, however, the law continues to discriminate. Contrary to principles of comity, same sex couples who are legally married by the laws of countries in which marriage equality has been achieved are stripped of their relationship status in Australia. Married couples do not have to prove the standing of their relationships in order to access legal entitlements and protections available to couples: an obstacle that cannot be overcome by same sex couples, whatever the duration or bond of their relationship, and that can have devastating consequences.[28] The absence of a right to marry can also affect Australian same sex couples in countries where legal rights attach to the fact of marriage, as opposed to the existence of a bona fide relationship. In some countries, for example, hospital visitation rights are denied to de facto partners. Marriage equality is, in these ways, not a matter of mere symbolism, but a matter of substantive rights.

It seems that some opponents of same-sex marriage were confident that, under Tony Abbott’s leadership, any popular vote for the legalisation of same sex marriage could have been constructed in a manner calculated to maximise its prospects of failure.

Now, the arguments of some opponents bear a chilling similarity to those that were trotted out at the time of the decriminalisation of homosexuality more than two generations ago.[29] What’s more, some conservative politicians say that if the plebiscite succeeds, they will not respect the people’s verdict on the floor of the parliament.

The proposal for a plebiscite was always an unnecessary and costly abrogation of parliament’s responsibility. Now that the damage the debate will do has been exposed, and the deal by which it came to be government policy repudiated, it should be revisited.

 

[1] Hansard, House of Representatives, 18 October 1973.

[2] The Tasmanian provisions criminalising homosexual activity were overridden by the Human Rights (Sexual Conduct) Act 1994 (Cth), and repealed by the Criminal Code Amendment Act 1997 (Tas).

[3] Hansard, Legislative Council, 18 November 1980, 2874. There were no corresponding offences for sexual acts between females.

[4] Hansard, Legislative Council, 3 December 1980, 4119.

[5] Hansard, Legislative Assembly, 11 December 1980, 5025–6.

[6] Hansard, Legislative Assembly, 11 December 1980, 5080.

[7] Suicide Prevention Australia, Suicide and self-harm among gay, lesbian, bisexual and transgender communities (2009).

[8] Congregation for the Doctrine of the Faith, On the pastoral care of homosexual persons, 1 October 1986.

[9] Congregation for the Doctrine of the Faith, Considerations regarding proposals to give legal recognition to unions between homosexual persons (31 July 2003).

[10] 60 Minutes Interview with Liz Hayes, 7 March 2010.

[11] Lateline Interview with Leigh Sales, 8 March 2010.

[12] Transcript of Interview, Australian Agenda, 20 March 2011.

[13] Interview with Ray Martin, Channel Nine, 23 September 2014.

[14] Argentina, Belgium, Brazil, Canada, France, Great Britain, Greenland, Iceland, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, United States, Uruguay.

[15] These figures are from an Ipsos poll. In the non-compulsory national referendum held on 22 May 2015, the vote in favour of marriage equality attracted 62% of the vote.

[16] Federal legislation came into force in 2005: Civil Marriage Act 2005.

[17] (1866) LR 1 P&D 130, 133.

[18] Hansard, House of Representatives, 24 June 2004, 31459.

[19] Commonwealth v ACT (2013) 250 CLR 441.

[20] Commonwealth v ACT (2013) 250 CLR 441, [57].

[21] Commonwealth v ACT (2013) 250 CLR 441, [59].

[22] Commonwealth v ACT (2013) 250 CLR 441, [33].

[23] Commonwealth v ACT (2013) 250 CLR 441, [56].

[24] Gabrielle Chan, ‘Nationals negotiate tougher Coalition agreement with Malcolm Turnbull’, The Guardian, 15 September 2015.

[25] Lisa Cox, ‘Separate poll on same-sex marriage would cost $158 million: Australian Electoral Commission’, Sydney Morning Herald, 8 September 2015.

[26] Hansard, Senate, 18 September 2012, 7245.

[27] See, for example, the Amicus brief filed by Ryan Anderson in Obergefell v Hodges 576 US (2015).

[28] See eg Tracey Spicer, ‘It is an urban myth that same-sex couples and married heterosexuals have equal legal rights’, The Age, 8 November 2015.

[29] Matthew Knott, ‘Leaked pamphlet claims gay marriage would lead to sexual diseases, drug use and unemployment’, The Age, 29 February 2016.

The plebiscite on marriage equality

From The Conversation: ‘A plebiscite on same-sex marriage would be a failure of parliament’s responsibility

If Australia holds a fairly conducted plebiscite on legalising same-sex marriage after the next election, the result will almost certainly reflect what we already know from an unbroken line of reputable opinion polls.

Success for the ‘yes’ case will come, in time, to be seen as extraordinarily empowering for same-sex-attracted Australians. This is not a case, however, where the ends will justify the means.

The debate will be divisive. Some on the ‘no’ side are apparently bent on using the cover of a plebiscite to advance specious arguments connecting same-sex marriage with the abuse of children, sexually transmitted diseases and drug abuse.

Decriminalising homosexuality holds lessons

In November 1980, the attorney-general, Haddon Storey, rose in the Victorian parliament to outline the Liberal government’s rationale for abolishing the offences of buggery and gross indecency between males. He said:

It does not represent any approval or condonation of these activities. The government does not accept sexual relationships between persons of the same sex as an acceptable alternative lifestyle.

Another Liberal, Murray Hamilton, spoke against decriminalisation, on the ground that it was no more than the obsession of a small number of homosexuals. The National Party opposed decriminalisation as a bloc. It argued that homosexual activity was repugnant, completely unnatural and not carried out in the animal world.

The Victorian legislation ultimately passed and came into effect in March 1981. Legislation removing provisions of the criminal law that penalised homosexual sexual activity was passed progressively throughout Australia between 1975 (South Australia) and 1997 (Tasmania).

Today, the anxiety of past parliaments to condemn homosexuality, even as they passed legislation to decriminalise it, appears laughingly begrudging. The arguments harnessed against the reform would be just laughable but for the harm they no doubt did to generations of gay people. Yet clear echoes of that mentality resound today.

In October 1986, Joseph Ratzinger – the future Pope Benedict XVI, in his then-capacity as Prefect for the Congregation for the Doctrine of the Faith – said homosexuality was:

… a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination must be seen as an objective disorder.

Ratzinger returned to the theme in July 2003:

There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law.

In March 2010, then-opposition leader Tony Abbott said he felt ‘a bit threatened’ by gay people. He elaborated:

There is no doubt that it challenges, if you like, orthodox notions of the right order of things.

Throughout his tenure as prime minister, Abbott was consistent in his opposition to the legalisation of same-sex marriage. However, he argued from tradition, rather than from scripture or religious obligation.

In March 2011, then-prime minister Julia Gillard opposed legalising same-sex marriage:

… because of the way our society is and how we got here.

In September 2014, after leaving parliament, Gillard suggested that her opposition to marriage equality was born not of respect for marriage’s special status, but of ‘an old-fashioned, feminist view’ that there should be some way, other than marriage, of ‘solemnising relationships and recognising them as of worth and status’.

In August 2015, Gillard said she had changed her view – she would now vote in favour of legalising same-sex marriage.

Opponents of same-sex marriage have now taken to accusing proponents of being intolerant or bigoted. A spokesperson for the Australian Christian Lobby told a Senate committee in September 2015 that ‘many’ on his side of the debate felt fear and intimidation.

Having regard to the long history of religious and political leaders branding gay people as intrinsically morally evil, objectively disordered and a challenge to the orthodox notion of the right order of things, there is a breathtaking hypocrisy in that charge. In any event, it is neither intolerant nor bigoted to call out hollow arguments.

Why a plebiscite?

Since becoming prime minister, Malcolm Turnbull has adhered to the policy of his predecessor. He is promising a national plebiscite on same-sex marriage after the next election.

Because no change to the Constitution is required, there is no legal reason for a plebiscite. The parliament could resolve the matter by a simple vote.

There have been only three national plebiscites in Australia’s history. Not one provides a useful precedent.

Plebiscites were held in October 1916 and December 1917 to test the public’s attitude towards Billy Hughes’ plan to introduce conscription during the first world war. Both failed.

The third plebiscite occurred in 1977, when voters were asked whether they wished to replace God Save the Queen as Australia’s national anthem. Important though it may have been, the change to Advance Australia Fair involved no question of civil rights or conscience.

Australian parliaments routinely legislate in respect of socially contentious issues without resorting to plebiscites or referenda. Conscription was introduced in 1942 for the remainder of the second world war. Compulsory national service operated during the Korean and Vietnam wars. None of these matters were expressly put to the people.

Women were given the vote, the death penalty abolished, homosexuality decriminalised, no-fault divorce introduced, the White Australia Policy reversed and detention centres for asylum seekers set up in the Pacific Islands – all without the mandate of a plebiscite or referendum. No case has been made as to why or how legalising same-sex marriage is qualitatively different.

It seems that some opponents of same-sex marriage were confident that, under Abbott, any popular vote could have been constructed in a manner calculated to maximise its prospects of failure.

Now, the arguments of some opponents bear a chilling similarity to those that were trotted out at the time of the decriminalisation of homosexuality more than two generations ago. What’s more, some conservative politicians say that if the plebiscite succeeds, they will not respect the people’s verdict on the floor of the parliament.

The proposal for a plebiscite was always an unnecessary and costly abrogation of parliament’s responsibility. Now that the damage the debate will do has been exposed, and the deal by which it came to be government policy repudiated, it should be revisited.

Paddling in the backwater: Australian courts and online defamation

When, in 1932, a Full Court of the Victorian Supreme Court considered, for the first time, how the rules of defamation law might apply to that new-fangled technology, the radio, one of the judges bemoaned that ‘very recent developments in physical science could not possibly have been foreseen when the Common Law Courts were working out the essentials of the respective causes of action for libel and slander’.1[1]

Australian courts have never since managed to get ahead of the technological curve when it comes to applying defamation law principles to new media of communication, a problem that has become acute since the advent of the internet. The achingly slow evolution of the common law, dictated always by the facts of the unrepresentative cases that happen to require adjudication, leaves judges with little by way of guidance other than inapt analogies. This country’s landmark contribution to the international jurisprudence, almost a generation ago now, in Dow Jones & Co Inc v Gutnick,[2] was dismissed by a technologically savvy English judge in 2005 as having treated communications via the internet as if they were ‘seaside postcards sent by conventional means’.[3] The lack of agility of the common law is not confined to Australia. The New Zealand Court of Appeal recently spilled litres of ink analysing whether defamatory comments posted on a Facebook profile were best compared with poems tacked onto a golf club notice board, graffiti on a wall, or statements shouted out at a public meeting.[4]

Developments in the United States, and in England and Wales, have left the antipodes for dead. The American Congress passed legislation in 1996 giving effect to a policy that only those responsible for authoring, editing or commissioning defamatory statements should be exposed to liability.[5] All others have a complete immunity from suit, including internet service providers, web hosts, moderators, the operators of online forums, search engine operators, and those who link to or repost material created by others. Defamation judgments from Australian courts are unenforceable in almost all circumstances in the United States.[6]

Similar policy settings have been adopted in England and Wales, as a result of common law developments,[7] as well as a raft of recent internet-friendly legislative reforms.[8] Defamation actions can no longer be brought against secondary publishers of defamatory statements (such as internet service providers and content hosts in respect of statements posted by others) unless a court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or commercial publisher of the statement.[9] Nor can defamation actions be brought in England and Wales against persons who are domiciled outside the United Kingdom, the European Union, Iceland, Norway or Switzerland, unless a court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring the action.[10] Operators of websites have a complete defence to an action for defamation in respect of statements posted on their websites by others, unless (in substance) the claimant shows that it has not been possible to identify the person who posted the statement and the operator of the website has failed to comply with a prescribed notice and take-down procedure.[11] A single publication rule has been introduced, which removes the spectre of indefinite exposure to liability in most cases for defamatory statements that remain online years after they were first posted.[12] Courts have the power to direct operators of websites to remove statements that have been found to be actionable in a case against the author, editor or commercial publisher, without the need for the operator to be sued or joined.[13]

It is, of course, open to argue that different policy settings are appropriate, and that internet service providers, content hosts, operators of websites to which others post content and search engine operators—all of whom will often have deep pockets—ought not to be immune or substantially immune from liability in respect of defamatory statements that would not be accessible but for the services they provide or the media they manage. In Australia, however, no substantial attention has been turned by any legislature to any of these questions. We are wholly out of kilter with developments in the jurisdictions with which we are most often compared. The common law has proved an inadequate vehicle for reform, with Australian courts recently affirming, for example, by the application of centuries-old principles, that search engine operators can be treated as the publishers of defamatory statements that are located anywhere on the internet, simply because they have been automatically indexed, even though they played no part in writing, editing or commissioning them.[14] In Victoria, it has been held that that liability can potentially attach even where the search engine operator is not on notice of the offending statement.[15] Online publishers can be liable under Australian law for defamatory statements lurking in their archives years or decades after they were first posted, simply because they remain accessible. There is no encouragement, or even incentive, for plaintiffs to pursue the authors of defamatory online statements, rather than those who have merely facilitated their availability. Australia’s parochial approach towards jurisdiction means that defendants with little or no connection with this country can be hauled to account before its courts.

All of these matters are, in my view, crying out for legislative correction.

 

 

Dr Matt Collins QC is a member of the Victorian Bar and a Senior Fellow of the Melbourne Law School. He is the author of three editions of The Law of Defamation and the Internet (2001, 2005 and 2010) and of Collins on Defamation (2014). This article first appeared in the Gazette of Law and Journalism (subscription required).

[1] Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425, 440–1 (Lowe J).

[2] [2002] HCA 56; (2002) 210 CLR 575.

[3] Sir David Eady in his foreword to the second edition of my book, The Law of Defamation and the Internet (2005).

[4] Murray v Wishart [2014] NZCA 461.

[5] Communications Decency Act, 47 USC §230(c) (1996).

[6] Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 USC §4101–5 (2010).

[7] Bunt v Tilley [2006] EWHC 407 (QB), [2007] 1 WLR 1243; Metropolitan International Schools Ltd v Designtechnica Corp [2009] EWHC 1765 (QB), [2011] 1 WLR 1743; Tamiz v Google Inc [2013] EWCA Civ 68, [2013] 1 WLR 2151.

[8] Defamation Act 2013 (UK), ss 5, 8, 9, 10, 13; Defamation (Operators of Websites) Regulations 2013 (UK).

[9] Defamation Act 2013 (UK), s 10.

[10] Defamation Act 2013 (UK), s 9.

[11] Defamation Act 2013 (UK), s 5; Defamation (Operators of Websites) Regulations 2013 (UK).

[12] Defamation Act 2013 (UK), s 8.

[13] Defamation Act 2013 (UK), s 13.

[14] Trkulja v Google Inc LLC (No 5) [2012] VSC 533; Bleyer v Google Inc [2014] NSWSC 897; Duffy v Google Inc [2015] SASC 170.

[15] Trkulja v Google Inc LLC (No 5) [2012] VSC 533, [30].

Becoming Charlie

I like Paris in winter. There are fewer tourists and it is easier to tap into the rhythm of the city. Some days are crisp and clear, with blue skies and a light that accentuates the mildest of variations in the colours of the limestone. If you are really lucky, snow might have fallen overnight, creating a streetscape of such aching beauty that it is almost ethereal. But it was drizzling on 7 January 2015, the grey sky and bleak light a clumsy metaphor for the appalling chain of events that was about to unfold.

Continue reading “Becoming Charlie”