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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.
Time for change
In Australia, we can achieve marriage equality by rewriting a few dozen words in the Marriage Act.
We don’t need a referendum, a plebiscite or a contest in our highest court – what we need is political leadership.
The sort of political leadership Lionel Murphy was prepared to show on law reform when it mattered.
Support for marriage equality is no longer an act of political courage.
Polls show around two-thirds of Australians support marriage equality.[v]
Support for marriage equality isn’t an act of partisanship.
Supporters of all political traditions support marriage equality.
- Social democrats and progressives who support government action to enhance equality and protect the rights of minorities;
- Liberals who champion the primacy of the individual and freedom of choice;
- Conservatives who promote the role of the family and want to maintain the strength of institutions; and
- Libertarians who seek to as maximise individual liberty and minimise state intrusion into people’s personal lives.
Parliamentarians representing each of these traditions in our national parliament support marriage equality.
Yet our Parliament has not been prepared to act.
The proposed national non-binding plebiscite is just the latest in a series of obstacles erected by opponents of marriage equality.
Australia has not had plebiscites on other fundamental issues of justice and human rights, such as abolishing the death penalty, ending the White Australia policy or enacting the native title regime.
The Racial Discrimination Act and the Sex Discrimination Act were enacted without a plebiscite.
State and Federal Parliaments have legislated on abortion, voluntary euthanasia and stem cell research without holding plebiscites.
In a clear statement, the High Court has said: “Under the Constitution and federal law as it now stands, whether same-sex marriage should be provided for by law … is a matter for the federal parliament.” [vi]
Tony Abbott proposed a plebiscite because he had exhausted other avenues to stymie the demand for a free vote in the Liberal party room.
That Mr Abbott embraced a plebiscite proposal supported by Cory Bernardi, Scott Morrison and the Australian Christian Lobby organisation is no real surprise.
What has surprised me – and many others – is the decision of Malcolm Turnbull to support the plebiscite proposal.
Mr Turnbull obviously needed some votes from marriage equality opponents inside his party room to wrench the prime ministership from Mr Abbott.
In supporting the plebiscite Mr Turnbull repudiated the position he had previously put to the party room and in the public domain.
He now tells us that a plebiscite campaign will be conducted respectfully.
These are the hollowest of hollow words.
I know that a plebiscite designed to deny me and many other Australians a marriage certificate will instead license hate speech to those who need little encouragement.
Mr Turnbull – and many commentators on this subject – don’t understand that for gay and lesbian Australians hate speech is not abstract.
It’s part of our daily life.
My Twitter feed already foretells the inevitable nature of an anti-equality campaign – and it does it in 140 characters or less.
As a public figure I’m familiar with the slings and arrows of political debate.
I’m not immune from the hate thrown my way.
But I’m resilient enough to withstand it.
Many are not.
Opponents of marriage equality already use words that hurt.
And words aren’t the only weapons wielded by some of those who harbour animosity towards gay and lesbian people.
Assaults – and worse – are not unknown in Australia, even today.
Many gay and lesbian people don’t hold hands on the street because they don’t know what reaction they’ll get.
Some hide who they are for fear of the consequences at home, at work and at school.
Not one straight politician advocating a plebiscite on marriage equality knows what that’s like.
What it’s like to live with the casual and deliberate prejudice that some still harbour.
I don’t oppose a plebiscite because I doubt the good sense of the Australian people.
I oppose a plebiscite because I don’t want my relationship – my family – to be the subject of inquiry, of censure, of condemnation, by others.
I don’t want other relationships, and other families, to be targeted either.
I want the Australian Parliament to fulfil the function laid down in the Constitution – to legislate on the matter of marriage – to remove discrimination against gay and lesbian Australians in the Marriage Act.
This is Labor’s position.
If Labor is elected on 2 July, Bill Shorten will introduce a marriage equality bill in the Parliament within 100 days.
Let me end on a note of hope, and recognition.
Australia’s history tells many stories – stories of struggle, conflict, change and progress.
Ours is hardly a story without prejudice and discrimination, but we know from experience that prejudice and discrimination can be overcome.
What we have in common matters more than what sets us apart.
Back in 1973, when Lionel Murphy introduced a Human Rights Bill into the Senate, marriage equality was not amongst the rights set out in his proposed law.
At that time, homosexuality was still criminalised in all of our States and Territories.
In my home town of Adelaide, law lecturer George Duncan had been drowned after being thrown into the River Torrens, almost certainly by police officers engaged in gay bashing.
Those responsible for that crime have never been brought to justice.
But the public outrage which it provoked led to a movement for gay law reform which saw South Australia become the first state to decriminalise homosexuality in 1975.
A great deal has been achieved since then.
Marriage equality is a remaining hurdle for those seeking equality for gay and lesbian Australians.
And those advocating for this reform stand on the shoulders of earlier campaigners for equality and social justice.
Our campaign would not be possible without the new discourse on human rights which Lionel Murphy introduced into Australian public life, both as a politician and as a judge.
Murphy was almost certainly the only judge anywhere in the world to have an astronomical entity, a supernova remnant no less, named after him.
A supernova is an exploding star which releases tremendous energy, emitting light which travels vast distances throughout the universe long after the star’s demise.
In that sense, the Murphy supernova remnant in the Large Magellanic Cloud is aptly named.
For Lionel Murphy was one of Labor’s brightest stars.
His radical and transformative political energy, and his profound commitment to human rights, reverberate in Australia to this day.
May the path of progress be ever lit.
[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