Transcript from a speech made by the Hon. Penny Wong, which focusses on discrimination against LGBTI Australians
SENATOR THE HON PENNY WONG
LEADER OF THE OPPOSITION IN THE SENATE
SHADOW MINISTER FOR TRADE AND INVESTMENT
SENATOR FOR SOUTH AUSTRALIA
21 June 2016
28TH ANNUAL LIONEL MURPHY MEMORIAL LECTURE
AUSTRALIAN NATIONAL UNIVERSITY
I acknowledge the traditional owners of the land on which we meet and pay my respects to elders past and present.
Thank you to Professor Paul Dietze and the trustees of the Lionel Murphy Foundation for inviting me to deliver this lecture.
I congratulate the Foundation for its work in awarding scholarships for the study of social justice, human rights, peace and the rule of law.
It’s work which keeps alive the spirit and the passions of Lionel Murphy, the sixth son of an Irish-born publican from Paddington who rose to become Labor’s Leader in the Senate, Australia’s Attorney-General and a justice of the High Court of Australia.
Lionel Murphy had a brilliant mind, an ebullient personality and a courageous spirit.
He was an advocate for equality, justice, progress and the rights of the disadvantaged and dispossessed.
He championed those causes tenaciously – as a lawyer, as a politician, as a Parliamentarian and as a judge – and often at considerable personal cost.
He was not intimidated by vested interests, entrenched attitudes or conventional wisdom and he did not shy away from controversy.
Lionel Murphy was one of the political giants of Labor Party in the 1960s and 1970s.
His focus on social justice and human rights helped reshape Labor and the country.
The values he held – like equal treatment of people regardless of race, gender, sexuality, ethnicity or religion – are modern Labor values.
Then, and now, equality matters.
Discrimination against LGBTI Australians
Tonight I want to talk about marriage equality and discrimination against gay and lesbian Australians.
In 2001, when I was first elected to Parliament, it wasn’t legal to discriminate on the basis of race or gender in Australia.
The Racial Discrimination Act, based on legislation first introduced to Parliament by Murphy, had been enacted before my childhood migration from Malaysia.
Discrimination on the basis of gender had been rendered unlawful by the Sex Discrimination Act while I was at school.
It was, however, legal to discriminate against people on the basis of their sexual orientation.
It remains so today.
Gay and lesbian Australians cannot marry the man or woman they love.
The path to equal treatment for gay and lesbian Australians has been long and arduous.
Each step has been important.
· The more than two-decade fight to decriminalise male homosexuality in State and Territory law.
· Amendments to the Sex Discrimination Act to make it unlawful to discriminate on the basis of sexual orientation, gender identity or intersex status.
· Amendments to dozens of other federal laws – on superannuation, Medicare, social security, immigration and taxation – to remove discrimination against same-sex couples and their children.
Marriage equality remains the one serious roadblock to legal equality.
Australia once led the world on social reform.
Today – on marriage equality – we are laggards.
Spain, Canada, South Africa, Norway, Sweden, Argentina, Denmark, France, Brazil, England, Scotland, the United States and Ireland, among others, recognise marriage between same-sex partners.
Earlier this year I wrote in The Monthly that it’s not just gay and lesbian people who can’t understand why our marriage laws entrench discrimination.
On marriage equality, most Australians don’t ask: “Why?”
They ask: “Why not?”
Most people recognise what our marriage laws don’t – gay and lesbian Australians are just like everybody else.
Our relationships are like other relationships.
Our desire to make a commitment to our life partner is no different either.
The parenting challenges we face are like other parenting challenges.
Gay and lesbian Australians make good – and not so good – partners – like everybody else.
Many of our relationships endure, some don’t.
Many of our marriages will endure, some won’t.
Our relationships aren’t so different – why should they be treated differently?
Most Australians recognise that the indignities visited on people by bad laws should be addressed.
Four decades ago, Lionel Murphy moved to change laws relating to the dissolution of marriage because he recognised that the law did not accord with current social standards, and presented indignities to the parties.
The same considerations apply to the definition of marriage today.
The discrimination at the heart of the Marriage Act does not accord with community standards.
And it visits indignity on every same-sex couple that wishes to marry.
What we don’t have today is an Attorney-General prepared to make the case for change – and act.
Instead, we’ve got an Attorney-General – and a Prime Minister – cowed by conservative elements inside their party room.
Not prepared to take a stand for equality.
Just clinging to the fig leaf of a plebiscite.
One picked from the fig tree and presented to the party room by Scott Morrison, Peter Dutton and Cory Bernardi.
Liberal democracies are founded on equality
Last year the United States Supreme Court held:
“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” [i]
Australians don’t have a bill of rights.
But we should insist on the recognition of our inherent rights.
Not gay and lesbian rights – human rights.
The US Supreme Court also held that the enduring bond of marriage enables two people to “find other freedoms, such as expression, intimacy, and spirituality.” [ii]
It’s not just couples in same-sex relationships that would benefit from law reform.
Research by my parliamentary colleague, Andrew Leigh, a former professor of economics at this university, has shown that family structure, stable relationships and parenting styles are important ingredients in redressing social disadvantage. [iii]
Flawed arguments for discrimination
None of the arguments against marriage equality can compete with those in its favour.
The “immutability” of marriage is a favourite argument of advocates for discrimination.
Liberal Senator Cory Bernardi put it succinctly when he said: “Marriage simply is.”
While marriage has been around a long time, it is not immutable.
Property, inheritance, social position and family alliances used to be dominant considerations in the selection of marriage partners.
Not so today.
Marriage laws have also changed over time.
Different classes of people have been excluded from the institution of marriage based on their social or legal status.
Women and men of different races.
In Australia, many Aboriginal people were not allowed to marry without permission from the state, a policy which persisted into the 1950s in some States and Territories. [iv]
Today, gay and lesbian Australians are excluded from the institution.
Marriage is an enduring institution, but it has never been frozen in time.
Earlier generations sought greater equality, and with each change – including Lionel Murphy’s introduction of no-fault divorce in Australia – came warnings that the institution would be irreparably damaged and the fabric of society would unravel.
The dire warnings were unfounded.
Marriage has endured because it has evolved, adapted and embraced change.
Marriage Equality and Religion
Opposition to marriage equality is often expressed using the language of religion.
Last year the Anglican Archbishop of Sydney, the Most Reverend Dr Glenn Davies, declared: “God created marriage as a man-woman, exclusive, permanent union.”
I don’t think the God I know would be affronted by my sexuality, or my family.
In any event, our laws are made by legislators and judges, not deities – notwithstanding the fact some of the former confuse themselves with the latter from time to time.
John Locke made out the argument for the separation of church and state in the 17th century.
Australia has never had a state religion.
Section 116 of our Constitution provides that the Commonwealth shall not make any law for establishing any religion, or impose any religious observance.
Professor Carol Johnson of the University of Adelaide has observed: “That separation was actually seen as an important guarantee of religious freedom.”
Religious freedom means being free to worship and to follow your faith without suffering persecution or discrimination for your beliefs.
It does not mean imposing your beliefs on everyone else.
The separation of church and state cuts both ways.
Changes to the Marriage Act should not compel people of faith, and religious institutions that do not recognise the validity of same-sex relationships, to change their practices.
As a legislator, I recognise the rights of the clergy.
I ask the clergy to recognise mine – as a legislator, as a member of a couple, and as a parent of two children.
Part two will be posted on February 10.
[i] United States Supreme Court, Obergefell v Hodges, No 14-556, slip op at 22 (US, June 26, 2015)
[ii] Obergefell v Hodges, at 13.
[iii] Andrew Leigh, Battlers and Billionaires: The Story of Inequality in Australia, Redback, Collingwood, 2013, pp 110-23.
[iv] Rodney Croome, “True and good citizens”, Overland, vol. 203, Winter 2011, https://overland.org.au/previous-issues/issue-203/feature-rodney-croome/
[v] Support in recent polls: 72 per cent (Crosby Textor, July 2014), 69 per cent (Ipsos, August 2015), 58 per cent (Newspoll, June 2015).
[vi] The Commonwealth v Australian Capital Territory,  HCA 55, 12 December 2013