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Australia: failed promises

Simon Margan & Joey Mataele: ILGA Oceania/ANZAPI board members, ANZAPI representatives on ILGA’s World Board. \n

Avatar of Alessia Valenza

3rd September 2013 16:04

Alessia Valenza


The Oceania region has seen a significant cultural change in each of this region’s countries’ treatment of LGBTI people. New Zealand has legalised same-sex marriage and the Tongan government, whilst retaining its anti-sodomy law, has backed the removal of the impersonation of a female from its 5-year-old criminal statute. Australia is a good example of a country in the Oceania region that has been able to translate the cultural change of acceptance into major legislative reform. These reforms have to be seen in context to understand what are the positive aspects and the deficiencies with these initiatives. The following Australian LGBTI equality initiatives, and the work of Gina Wilson, can be summarised as follows. 



The Federal government abandoned the anti-discrimination consolidation bill, despite the Liberals indicating they did not see LGBTI inclusion as a hurdle to the bill, due to the numerous limits and exemptions, especially religious ones, according to the Liberal party’s dissenting report. Consequently the Labor party opted for an amendment to the federal sex discrimination legislation, via the Sex Discrimination (Lesbian Gay Bisexual Transgender and Intersex) Amendment Bill 2013 (Cth). This was passed into law on 25 June 2013. This followed a lengthy submission period which ran for four weeks, culminating on a senate enquiry. Gina Wilson made pivotal submissions to the enquiry and the final bill was amended to meet her concerns about the exclusion of intersex people.


Where the previously proposed consolidated anti-discrimination bill was quite tight on exemptions, moving the majority of LGBTI provisions from that bill into the sex discrimination act has meant that LGBTI will be matched with those exemptions already existing in that act. The result is that LGBTI people are only subject to the existing exemptions. However, there are problems, as the new federal sex discrimination act does not contain provisions against vilification. The move to the sex discrimination act will give us much weaker protections than those proposed in the consolidation bill, however it does provide anti-discrimination protection in Australian federal law for the first time and for Intersex for the first time in the world.


Marriage equality


Two Marriage equality bills were put to the federal parliament in 2012, however, both failed. Both bills were nearly true equality bills, in that they proposed a marriage should be between two consenting adults. Interestingly the issue of marriages between two people was consistently raised as a hot button issue for LGBTI both in the senate hearings (again Gina Wilson participated in those on behalf of the intersex people and the LGBTI community in general) and in the mainstream media.


It is confounding that same-sex marriages are projected by some in parliament and the mainstream press as “the slippery slope” and the worst aspects of LGBTI people seeking marriage equality, when recent polls have shown there are about 60% of people in Australia who accept that same-sex marriage is a part of modern life.


State Based marriage


The Australian constitution places the issue of marriages within the ambit of the federal government. The states have the funded task of registering unions on the federal government’s behalf. The federal government in 2004 amended the marriage legislation to make certain unions could only be between a man and a woman, according to their birth certificate categorisation.


Given that limitation, it is thought that the constitution allows states to make laws concerning marriage, provided they do not infringe on federal powers. Some constitutional lawyers have suggested that if the states bring into being “same-sex “ marriage acts, they can stand constitutionally, so that two kinds of marriage might be possible in Australia, a federal and a state version.

State-based marriage bills have been put or are imminent in Tasmania, Victoria, South Australia, West Australia, New South Wales and the Australian Capital Territory. Gina Wilson has been closely involved in these bills and has put submissions to all of them and attended hearings in respect of them. She observed that the original bill put to the Tasmanian legislature was flawed and these flaws have been repeated by the other states following that state’s lead.

Gina Wilson has been advocating to ensure that minorities of the LGBTI community are not excluded by the push for marriage at the state level, which initially looked like a push for same-sex marriage, rather than a push for true marriage equality. Gina Wilson’s advocacy appears to have met with success as a variety of legislative initiatives are being proposed to ensure equality for all LGBTI people.


Bisexual, Trans and Intersex issues


Bisexual issues are not addressed in the proposed bills, since the push to legalise multi-partner marriages has been rejected by many LGBTI organisations.


Trans individuals are already allowed to marry under federal heterosexual law, but must end any existing marriage to prevent contradicting the marriage definition. For Intersex, neither the federal or state laws addresses Intersex people’s issues, e.g. intersex unfriendly legal precedent and birth certificate and passport issues.

So far all so-called marriage equality bills, including the recent one from the UK, will lead to anything but equality. Gina Wilson notes the UK bill like the most recent Australian bills do not address bisexual rights, trans rights or intersex rights to marriage.

With the work of activists like Gina Wilson in Australia future bills may redress the hurdles that some of these LGBTI initiatives failed to address. ILGA plays an invaluable role in co-ordinating and encouraging the push for full equality within the global campaign for the extension of all human rights to LGBTI people will ensure that the momentum towards such a goal is maintained.

Simon Margan & Joey Mataele
ILGA Oceania/ANZAPI board members, ANZAPI representatives on ILGA’s World Board.