Thursday, 24 December 2009

Merry Christmas to all

In the midst of a busy life, as well as living my life and working hard, I have had fun blogging and tweeting in the last year. Merry Christmas and Happy New Year to one and all. Particular thanks to those who gave me ideas to write about or who have commented about my blogs or tweets. Thanks also to my subscribers.

Thank you to the media for raising issues that would not otherwise have seen the light of day.

I am having a short but well deserved break over Christmas. See you in the New Year. Let's hope that 2010 is one in which more people are equal and accepted for who they are, than they were in 2009.

Friday, 4 December 2009

NY Senate votes down gay marriage

The New York Senate rejected a gay marriage bill 38-24, according to the New York Times.

Sunday, 29 November 2009

Senator Furner praises White Ribbon Day

Senator Mark Furner, who is also a White Ribbon Day ambassador, last Tuesday praised White Ribbon Day:

Tomorrow marks the anniversary of White Ribbon
. In my first year as an elected senator for
Queensland I attended the White Ribbon Day function
in Parliament House, Canberra. As a proponent in
condemning violence against women I did not hesitate
in becoming an ambassador of White Ribbon Day.
As a husband of an amazing wife and as a father of
two beautiful girls, I could not consider anything more
important in making this choice.

White Ribbon Day was started in Canada in 1991
by a group of male students on the second anniversary
of the shooting of 14 female peers at the University
of Montreal. The White Ribbon Campaign is the
largest effort in the world of men working together
to end men’s violence against women. In the first
year, 100,000 ribbons were distributed to men across
Canada. Ten thousand white ribbons were distributed
in 2003 and today hundreds of thousands of white
ribbons are worn by men and women across Australia.
This includes men at work, in Australian police forces,
in national and local sporting associations, in the
media, in politics and in the defence forces, across
all our capital cities as well as in rural and regional
areas. The campaign continues to go from strength
to strength and now boasts more than 350 White
Ribbon ambassadors Australia-wide. There are also
an increasing number of events being held across the
country, and more organisations and individuals are
participating every year.

As a White Ribbon ambassador I started out this
year with an objective of recruiting more ambassadors,
and am happy to announce the successful recruitment
of two well-known Queensland men, Secretary of the
Australian Services Union, David Smith, and Mick
Gillam, Councillor for Moreton Bay Regional Council,
Division 8. Both David and Mick, who represent
many women in their respective positions, did not
hesitate in stepping up to the plate to take on the
responsibilities of a White Ribbon ambassador. David
and Mick join the Queensland list of White Ribbon
ambassadors along with our Prime Minister, Kevin
Rudd, Senator Joe Ludwig, other federal, state and
local council parliamentarians, union leaders, lawyers,
police, sporting leaders and many more professionals.

Peter Birtles

In addition, my office was involved in three events
last Friday. At around noon last Friday we conducted a presentation and discussions around a barbeque
at the Supercheap Auto distribution centre in Pine
Rivers. In attendance were: CEO of Supercheap
Auto, Peter Birtles; Graham Chad, General Manager
Group Logistics; Sonia La Penna, General Manager
Group Human Resources; over 80 employees; and
Mick Gillam. The gathering listened intently to a
presentation I provided on violence against women
and repeated the pledge, which is: ‘I swear never
to commit violence against women, never to excuse
violence against women, and never to remain silent
about violence against women. This is my oath.’

Lance Hockridge

Later on that afternoon we did a similar presentation
at Queensland Rail Institute at the Queensland Rail
centre, Central Station, Brisbane. The event was
well attended, with many members of the Australian
Services Union; ASU Secretary, David Smith; and
the Queensland rail CEO, Lance Hockridge. I was
pleasantly surprised to hear in Lance’s address of his
involvement in the Queensland CEO Challenge, which
this year raised $25,000 towards this particular cause.

Senator Mark Furner and Stephen Page at Men in the Mall

Lastly we met at the event ‘Men in the Mall’
held at Queen Street Mall, central Brisbane. The
event was reasonably well attended, with guest
speakers including former Brisbane Bronco legend,
Steve Renouf, the 2009 Young Queenslander of the
Year, Chiu-Hing Chan; Assistant Commissioner, State
Crime Operations Command, Ross Barnett; and me
as an ambassador. During the proceedings the crowd
also received a presentation on self-protection by Ian
‘Powerhouse’ Jacobs, who did a live SAFE demo.
Additionally, a group of young Muslim men attended
the event.

I consider that my inspiration for this cause
commenced from my prior career as a union official,
providing many opportunities in defending women
who had unfortunately fallen victim to unnecessary
approaches by males in cases of workplace harassment
and sexual discrimination. In some of these cases
I was amazed that companies had not introduced
sexual harassment policies to make employees aware
of inappropriate conduct. Clearly in some cases there
was a lack of knowledge both by employers and
employees of their rights and responsibilities in the
workplace. After representation was made by the union
along with representatives from employees and the
employer, suitable policy would be implemented to
make all stakeholders aware of the issues concerning
sexual harassment in the workplace.
The statistics are profoundly disturbing, which
reflects a sad indictment of our society. The statistics
are that one in three women experience violence in
their relationship. That is 1,000 women each day—
1,000 today, 1,000 tomorrow, another 1,000 on the
next day and so on. Aboriginal women are significantly
more likely to be victims of violence than non-
Aboriginal women. In Queensland alone the police
handle more than 30,000 confirmed domestic violence
incidents each year. Domestic violence is a major cause
of death and disability in women aged 15 to 44.
Frightfully, most family and intimate violence goes
unreported. Surveys estimate that nine in 10 do not
report incidents of domestic violence. Yet over 30,000
children and young people accompany their mothers
to a refuge. If we take no action, an estimated
750,000 Australian women will report being a victim
of violence in 2021-22. Naturally, this type of violence
comes at a cost to our society. A 2009 KPMG study
estimated that, annually, domestic and family violence
costs Australia $13.6 billion.

Employers are in a strong position to assist survivors
of domestic and family violence to continue to work
safely. Employment and the economic security that
it provides can be critical when a survivor leaves
an abusive relationship and, more often than not,
their home. Domestic violence does not just affect
the individual; it also affects family members, both
immediate and external. A close friend is fighting the
demons as his daughter has for many years struggled
with this insidious scourge. My friend titled his story
Domestic violence—a father's story and it reads as

The verbal abuse of my daughter by her husband started
on their honeymoon with him telling her she was too fat,
too lazy, ugly and dumb. This continued for two years;
completely demoralised her and made her think she was
Then after the birth of two boys, he started dragging her
around the house by her hair and throwing her against the
wall. He then started kicking her out of the house with no
money and no clothes and no where to go. She slept in her
car because she was too ashamed to tell anybody.
He then started to isolate her from her friends and family
but the relationship with her family was too strong. He then
moved on to really belting her up even in front of his children.
Finally my daughter had had enough and she left and had him
charged with aggravated assault and had a domestic violence
order taken out against him for the boys and herself as well as
for me and my wife. He has also threatened to kill the boys.
We moved them into a unit in a secured town house complex
but she struggled with two boys and not enough money eventhough we helped her out. She moved back into the house
with her husband, but living separate lives. We are worried
that he will start hitting them again and this time it will be
worse. The domestic violence order is still in place and this
may help.
I felt so helpless during this marriage because I could not do
anything about it and only found out about it after five years
of their marriage. It has affected the two boys very badly. No
one should have to put up with this violence in a family life.
My daughter is five foot four tall and her husband is six foot
It is signed off ‘Les’. Nicole Kidman, a goodwill
ambassador of the United Nations Development Fund
for Women recently told the American Congress that
violence against women and girls was perhaps the most
systematic and widespread human rights violation in
the world. If it is good enough for Nicole, it is good
enough for us males to take up the gauntlet. We must
not rest until violence against women is eliminated. We
all have mothers and some of us have wives, sisters,
daughters and nieces. We must ensure that they never
fall victim. I am fortunate to have all those and I love
them dearly. As males, we need to call on all males to
swear with me today to never be violent and never be

Now the public campaign for equal rights in marriage...

Shelley Argent from PFLAG addresses the Brisbane Equal Love:Equal Rights rally

Some of the crowd at the Brisbane Equal Love: Equal Rights rally

Another view of the crowd at the Brisbane Equal Loves: Equal Rights rally

Now that the Senate Committee has buried the Greens' attempt to have equal rights in marriage, along party lines, the public push to change the Marriage Act is underway. Yesterday 2000 people reportedly rallied around the nation for the changes in the Equal Love: Equal Rights campaign.

In Brisbane about 250 people rallied in oppressive heat to listen to various speakers including PFLAG spokeswoman Shelley Argent. Shelley told the crowd, most of whom were under 25, that if they wanted to have the law changed then they needed to lobby politicians consistently to achieve that change, including by regularly writing letters to MP's, as politicians ultimately listen to the people.

Senate Committee Rejects Same Sex Marriage- on party lines

The Senate Legal and Constitutional Affairs Committee has rejected the attempt by the Greens to allow same sex marriage- on party lines, with both Labor and Liberal senators voting against the measure.

The report of the committee [PDF] did however suggest that:

  • the Government review relationship recognition arrangements with the aim of developing a nationally consistent framework to provide official recognition for same sex couples and
    equal rights under federal and state laws.
  • the Department of Foreign Affairs and Trade issue Certificates of Non-Impediment to couples of the same sex on the same basis as they are issued for couples of different sexes.

The Committee stated that it agreed with opponents:

that the current definition of ‘marriage’ in the
Marriage Act 1961 is appropriate, other types of relationships play an important part in Australian society and deserve recognition. For this reason, the committee’s
recommendation not to alter the definition of marriage should not be taken
as a lack of support for same-sex couples. However, the committee considers
that the current definition is a clear and well-recognised legal term which
should be preserved. The committee recommends that the Bill not be passed.

Constitutional limitations

The committee reported:

concerns about the constitutional validity of the Bill were raised during the
inquiry. The Gilbert and Tobin Centre of Public Law reminded the committee that,
while section 51(xxi) of the Australian Constitution gives the Commonwealth
Parliament power to makes laws with respect to 'marriage', that power is not
further defined by the Constitution, and the power may or may not extend beyond
its current terms as a 'union between a man and a woman to the exclusion of
all others voluntarily entered into for life'.
The Gilbert and Tobin
Centre suggests that the High Court could adopt at
least 2 different
approaches to defining marriage for the purposes of the Constitution.
If the
Court were to look to the intentions of the framers of the Constitution, it may
be persuaded that the Commonwealth's power is limited to marriages of two
different sexes. However, drawing on comments by Justice McHugh in the Singh and
Wakim cases, the Gilbert and Tobin Centre observe that:
…it might be argued
that gender is not central to the constitutional
definition of ‘marriage’,
which is instead focussed upon the commitment of
two people to a voluntary
and permanent union. This would be an example
of an evolving interpretation
in which the Constitution retains its essential
meaning while accommodating
later understandings as to what may fall
within those concepts. The fact
that a same-sex union was not within the
intended meaning of ‘marriage’ 1901
need not preclude such an
interpretation today.
The Gilbert and Tobin
Centre concludes that:
On balance, it cannot be said with any great
confidence that the High Court
at the present time is likely to find the
Commonwealth possesses legislative
power to permit same-sex unions under
section 51(xxi). Indeed the most
likely conclusion is that the meaning which
is currently employed by the
Marriage Act represents the full extent of the
Commonwealth's power.
The Centre goes on to a similar conclusion in respect
of the external affairs
power (section 51 xxix), but also find that the
Commonwealth could safely enact laws
for same-sex marriage were the states
to refer their powers to the Commonwealth to
do so, concluding that:
Commonwealth can then use this referred power to make laws for
marriage under section 51(xxxvii). If the Commonwealth and all
States were
in favour of providing for same-sex unions, this would be the
simplest and
most certain constitutional method of achieving this.

Impact of marriage on children

The committee reported:

The Australian Institute of Family Studies (AIFS), an Australian Government
Statutory body established to conduct research into the effects of
programs on family wellbeing, has published a number of research
papers which
touch on issues relating to same-sex parent families. One
important feature of the
AIFS research relates to the significant diversity
in the make up of families with samesex
parents. In a research paper
published in 2003, the AIFS found that more same-sex
parent families:
…are choosing parenthood within the context of their same-sex relationship
through a variety of means including donor insemination and other assisted
reproduction procedures, adoption or fostering. Thus, the extent to which
family members are related biologically can differ (that is, one parent may
or may not be the child’s biological parent). The large proportion of
children in current gay and lesbian families are likely to have been born or
adopted in the context of a heterosexual couple relationship that later
The AIFS, in that paper, also discussed concerns by some in
the community
about the potential negative effects of being raised in a gay-
or lesbian-headed family,
particularly in relation to children's gender
identity, their personal and social
development and the harm resulting from
family disruption (on the assumption that
gay and lesbian relationships are
more short-lived than heterosexual relationships).
The AIFS found that most
literature suggests that children raised by same-sex
parents do not show
poor adjustment when compared with other children. However:
…much of the
available research has involved small, unrepresentative
samples that are
predominantly well educated, middle class and American.
The degree to which
results reflect sampling biases of the research, and
their applicability in
the Australian context, are thus difficult to evaluate.
The committee
recognises that there may be insufficient data collected within
Australian context to draw definitive conclusions about any impact that same-sex
parenting may or may not have on children. This lack of data may also make
difficult to determine what factors might contribute to any outcome
observed in children in same-sex parent families and whether
those factors are a direct
result of the particular family structure.

Equality: the case against separate but equal

The Committee stated:

Perhaps the most prominent argument put by those in support of the Bill
centred on the need to treat people as equals, regardless of their sexual
preference, and
to recognise and respect the equality of a commitment
between people of the same-sex
and people of different sexes.1 A number of
witnesses referred to the recent reforms
by the Government aimed at
redressing the inequities, and all were in support of them.
witnesses in support of the Bill predictably went on to argue that the
reforms did not go far enough.
Dr Paula Gerber from the Castan Centre
for Human Rights Law, for example,
submitted that:
There have recently
been a suite of reforms that have removed
discrimination against gays and
lesbians in the areas of taxation,
superannuation and social security—the
last bastion is marriage. In
accordance with international human rights law,
principles of non
discrimination and equality, this too must be addressed.
Civil unions and
domestic partner registries are not sufficient. They are
the equivalent of the
‘separate but equal’ response in America in the era of
segregation, and we
know from that time that

Mr Rodney Croome,
representing Australian Marriage Equality (AME),
observed that:
Marriage, like every social institution, changes to keep pace with changing
social attitudes, and it is clear from the evidence we have heard this
morning that a majority of Australians believe marriage today can
encompass same-sex relationships. As I said earlier, Australian public
policy is heading in the same direction with the recognition of same-sex de
facto marriages. Marriage can and should change to reflect what we
understand committed, loving relationships to be. If it does not, it becomes
irrelevant and fossilised. In my mind, what degrades and demeans marriage
is the fact that we keep it petrified at a certain time rather than allowing
it to

...The committee notes evidence cited by Australian
Marriage Equality that
increasing numbers of same-sex couples are choosing
to raise children. Research from
Professor Jenni Millbank in 2002 found
Surveys of gay men in the USA have suggested that around 10% of gay
men are parents. American and Australian surveys of lesbians and NZ
census data suggest that between 15-20% of lesbians have children.
Australian surveys suggest that this proportion is likely to increase in the
next 5 years as many lesbians also indicate that they are planning to have
children in the future.


Mrs Shelley Argent, representing the Parents and Friends of Lesbians and
Gays (PFLAG), was one witness who disputed the view that comparison between
heterosexual and same-sex unions was fair or helpful. Mrs Argent observed
that samesex
… are often coming from a situation where
they are already living under
pressure. A lot of them do not have family
support and their partners are not
welcome in the family home, so of course
that is going to put pressure on
the relationship. If you have to go home
alone and you cannot take your
partner with you at Christmas time, of course
that puts pressure on the
relationship. Then you also have this societal
expectation, even from some
parents, that the relationship will not work
because it is a same-sex one. I
just think that is insulting…It is all about
respecting them as individuals and
respecting their relationship.

Notwithstanding the difficulties in gauging relative levels of commitment, Ms
Dane spoke to research from jurisdictions which allowed same-sex marriage
suggested that marriage enhanced the level of commitment felt by
same-sex couples.
Ms Dane reported that:
Not surprisingly, studies
involving countries and US states that have
extended the marriage right show
marriage benefits same-sex couples in
much the same way as it has been shown
to benefit opposite-sex couples.
For example, a recent study by Badgett et
al involving 552 married samesex
couples in Massachusetts found that close
to 75 per cent felt that
marriage had increased their commitment to their
spouses. Seventy-five per
cent felt more accepted by their community as a
result, including by their
siblings and parents. Of those living with
children, over 90 per cent felt that
their children were happier and better
off as a result of their marriage.19
Rev. Nettleton submitted that the
argument made by opponents of same-sex
marriage about levels of commitment
disclosed an element of internal inconsistency:
To criticise the homosexual
community, as many do, for its alleged
promiscuity while at the same time
working to deny them access to the
social structures that encourage and
support fidelity for the rest of us is
surely disingenuous.

Same-sex couples' desire for marriage

Opponents of the Bill argued that the call for marriage among same-sex
attracted people is coming from only a vocal minority within the gay
community. In
response, Ms Dane observed that:
If 10 per cent or 20 per
cent of same-sex couples wanted to be married, that
should be enough because
it is about having the choice. The same would
apply if, all of a sudden in
time to come, only 30 per cent or 40 per cent of
heterosexual couples chose
to marry. Would that be a reason to abolish
marriage? People still need a
choice. So I have not really gone down the
path of the numbers for that
argument; I have only stated this to try and
dispel the myth out there that
I frequently hear that same-sex couples are
promiscuous and do not really
want to marry, and that is not true.
Dr Sifris agreed with Ms Dane:
A recent study shows that a lot of same-sex couples want that option to
marry. Once again it comes back to options and choices. If heterosexual
couples have the option to marry, the option to register, the option to do
nothing, same-sex couple should have that same choice. It is a question of
discrimination. Options and choices.

Family members of same-sex couples also took the view that same-sex
were no different to those of opposite sex. These views are well highlighted
by Ms Annette Naylor, who submitted that:
…Both of my daughters are in
relationships and are engaged to their
respective partners. As a mother, I
am very fortunate that they have each
found such wonderful partners, who
love and respect them…I have always
loved and treated both of my daughters
equally. They have both grown into
beautiful, strong and intelligent women,
whom I am extremely proud of.
However, the eyes of the law currently do not
see one of my daughters as
equal. Despite the fact that I attended each of
my daughter’s engagements
last year, one of my daughters cannot get married.
The reason why my
eldest daughter cannot get married is because she is gay
and in a same-sex
relationship. She is no different and no less of a person
than my youngest
daughter. Her sexuality does not define who she is and when
I look at her, I
do not see “my gay daughter”… I see my daughter. Her
relationship is no
less loving, no less committed and no less equal to her
sister’s relationship.
How will allowing my eldest daughter to marry
undermine my youngest
daughters’ marriage? As a mother, I want to attend
both of my daughter’s
weddings. I want to be there for both of my girls
during one of the most
significant moments in their lives. I want them both
to be treated as equals
in the eyes of the law, just as they should be…

A universal language of love and commitment

Mrs Argent submitted that:
A marriage ceremony puts the same-sex
relationship into a context
everyone is familiar with and has the potential
to transform what the couple
means to each other in the eyes of the family,
friends and society in general.
For many parents it will also take the sting
out of their son or daughter
identifying as lesbian or gay, because one of
the main concerns parents
experience is the loss of the tradition of having
the marriage option for their
child. For many this is a huge source of
disappointment. For others it can
also help the family come out and come to
terms with their sexual
orientation in a positive setting. Supporting
friends and family bearing
witness to the ceremony certainly helps to
strengthen the couple’s bond and
show the relationship as meaningful in
Mr Croome added that:
[M]arriage is an institution
through which partners find connection and
belonging not only with each
other but within their families and within their
communities. That is why
marriage traditionally and conventionally creates
kinship. We have terms
like brother-in-law and mother-in-law. It is why
conventionally at wedding
ceremonies those present are asked if they assent
to the marriage. It is not
simply about the partners, as important as their
bond is. It is about a
public recognition of that and the creation, like I said,
of connection and
belonging. Marriage provides us with a universal
language of love and

In seeking to contrast the benefits of marriage over those
associated with civil
unions, Mr Croome concluded that:
The repeated
complaints of partners is that their status as civil union
partners is not
recognised or understood by key agencies—health insurers,
schools or even
government agencies—and certainly not in social discourse
by their families,
friends and neighbours. So while civil unions might grant
those partners
equal entitlements as married partners in practice they are
often denied
those entitlements by authorities who are ignorant of what a
civil union is
or who are deliberately discriminatory… but many of the
partners I have
spoken to say that, even though they are guaranteed by that
registry the
same spousal rights as married couples in Tasmanian law, often
that is not
respected by state authorities, by health insurers, by schools or
it might be simply because there is not an understanding of what

International Human rights law

The Australian Human Rights Commission submitted that:

Equality is a fundamental principle of international law. The Commission
believes that a human rights analysis based on the principle of equality
supports the recognition of same sex marriage.
Dr Gerber went on to argue that, in respect of couples with children,
Australia's international obligations compel the recognition of a
relationship between
a child's parents on the basis that to do so is in the
child's best interests:
Same-sex couples are now having children.
International human rights law
recognises that the family is the fundamental
group unit of society and
deserves special support and protection. Article 2
of the Convention of the
Rights of the Child protects children from
discrimination on the grounds of
their parents’ status, and that status
includes their sexual orientation. The
UN Committee on the Rights of the
Child has expressly stated that it is
concerned that discrimination based on
the sexual orientation of the parents
impacts negatively on the children.
The Convention on the Rights of the
Child also requires that any decision
that impacts or affects children must
be made with the best interests of the
child being a primary consideration.
Prohibiting a child’s parents from
marrying is not in the best interests of the
child. All children deserve the
chance to grow up in a stable and loving
home with parents in a relationship
that is publicly recognised and
respected. There is extensive empirical
research…that says that children
raised in same-sex families are not
disadvantaged by the fact that their
parents are of the same sex, but what
will disadvantage them is when those
parents are discriminated against
purely on the basis of their sexual
When asked about
whether Australia is in breach of its international obligations, the Hon.
Branson QC, President and Human Rights Commissioner, indicated
that it was
unclear whether either passage or non-passage of the Bill would
place Australia in
breach of the law:
This is an area where
international jurisprudence is still developing. I do not
think it can be
firmly said one way or another at the moment whether there
is an
international obligation to allow same-sex marriage. But as increasing
numbers of jurisdictions do so, it may be that international law is moving.

Failure to recognise overseas same-sex marriages

Dr Gerber concurred that Australia was in breach of its obligations, adding:
We are clearly in breach of that treaty. We even recognise legally
performed polygamist marriages from Saudi Arabia and other such
countries out of respect for our international obligations under the Hague
convention. Professor Hilary Charlesworth referred to Australia as being
‘Janus faced’. We present one face to the international community as an
upholder and respecter of international human rights law by ratifying all
these treaties and saying we are a worthy, human rights respecting country,
and we are seeking a seat on the UN Security Council. But domestically it
is the opposite in many cases, with children in immigration detention
centres and our treatment of Indigenous Australians, and you can now add
to that our treatment of sexual minorities. Internationally we are saying:
‘We are going to uphold these laws. They are good, just laws; we agree
with them,’ but domestically we are ignoring them.
Dr Gerber also pre-empted any argument that recognition of marriages
conducted overseas would provide a loophole through which Australian
couples could be married offshore and be recognised at home,
pointing out that many
countries require at least one party to a marriage to
be a resident of that country before
the marriage can take place.

Certificates of non-impediment to marriage overseas

In addition to Australia declining to recognise same-sex marriages conducted
overseas, the committee's attention was drawn to an apparent policy of the
Government to decline to issue a certificate of non-impediment to same-sex
who wish to marry overseas. These certificates are usually required
by foreign
governments before a marriage can be solemnised. Australian
Marriage Equality
submitted that:
Since the end of 2005 we have received
a steady stream of complaints from
Australians seeking to marry their
same-sex partners overseas for whom the
Government’s refusal to provide a
CNI has caused immense
frustration…We understand that the Dutch Government
has responded by
waiving the CNI requirement for Australians entering
same-sex marriages.
We have been told the only other nationality it does
this for is
Zimbabweans…our understanding is that CNIs are issued to
establish that
there is no impediment to an Australian marrying overseas,
not to establish
there is no impediment to the recognition in Australia of
the marriage they
intend entering. This is confirmed by the documentation
publicly available.
For example, the application form for an Australian CNI
asks the applicant to confirm they are not already married to another person in Australia. It does not ask if they seek to enter a same-sex marriage… Our understanding of the role of CNIs is also supported by the international experience. Other
request CNIs from Australia to ascertain whether there are
impediments to
them solemnising marriages involving Australian citizens.
Chief amongst such
impediments are whether the Australian citizens in
question are already
married in Australia and are of marriageable age.
Foreign governments are
aware of the discriminatory nature of Australian
law, and are not seeking
further information about such discrimination
because it is not relevant to

Opposition to the change was led by the churches:

Both the Catholic Dioceses of Sydney and Melbourne, in evidence given to
Committee, emphasised how the proposed definition of 'marriage' was a
fundamental departure from the acknowledged and agreed definition used by
other culture or society across time:
Marriage has always been
understood—even in very ancient societies—to
be between a man and a woman.
Even though certain forms of sexual
behaviour have been tolerated—and
widespread in some cultures—it has
never been seen as marriage.

The kind of proposal that is embodied in this… legislation is unheard of in
any society, because here we are, as it were, going for the jugular. This
a new, completely novel idea of what marriage is—which is not found in
any of the societies of the world.
The Australian Christian Lobby,
while voicing support for the removal of
unfair discrimination in
Commonwealth legislation, opposed any widening in
definitional scope. The
ACL argued that broadening the definition would dilute the
meaning and value
of the term beyond what is desirable:
One of the ways to ruin something is
to change the meaning of the word…
It will take it away from being something
between a man and a woman… A
homosexual relationship is not a marriage, it
cannot be a marriage, it should
never be described as a marriage.

Marriage and children

The Catholic Diocese of Sydney submitted that the State has always
recognised the public institution of marriage because of the unique and
contribution of the marital relationship to the common good:
The primary reason why nation states have been interested in marriage and
why it has attracted public support is its procreative aspect, encompassing
the generation and raising of children.
It is a union that is
publicly recognised and treated as special, distinguished
from other types
of relationships because of its unique capacity to generate
children and to
meet children’s deepest needs for the love and attachment of
both their
father and mother.
So important was this aspect of the discussion, according
to the Catholic
Archdiocese of Sydney, that:
…the state cannot grant the
legal status of marriage to same-sex unions
without failing in its duty to
promote and defend marriage as an institution
essential to the public good.

The law as a symbol

A final aspect of the discussion of the State's involvement in regulating the
marriage relationship related to the educative and symbolic role of the law.
Catholic Diocese of Sydney provided a useful summary:
The law sends
social messages, and it sends them to the community writ
large. It does not
send a message to just an individual family there, an
isolated individual
there; it sends it out to all the community: ‘This is what
we as a society
think family life is now about and marriage is about.’
The Catholic Diocese
of Sydney went on to note that, by passing this Bill, the
State would imply
that it is unnecessary and superfluous for children to have both a
and a father:
It is contrary to everything we intuitively and sociologically
know about
effective parenting to claim that mothers can father just as well
as men and
that fathers can mother just as well as women…
It does not
follow that, because some parents courageously succeed in the
difficult job
of raising children without a spouse, marriage is no longer the
best place
for children to be nurtured and loved. The state has always given
special recognition and support above all other sexual and

Sunday, 22 November 2009

Lawyer who challenged India's anti-sodomy laws to speak in Sydney

Anand Grover

The lawyer who led the team that succeeded in challenging India's anti-sodomy laws, Anand Grover, will be speaking in Sydney on 30 November at the annual John Marsden Lecture.

Grover has since been appointed by the UN as a Special Rapporteur on Health.

He will be introduced at the lecture by retired High Court judge, Michael Kirby.

The lecture is named after the late John Marsden, the former NSW Law Society President and prominent gay rights activist.

Details of the function:

“Overturning India’s Anti-sodomy Law, a Tumultuous Path to Victory”
6.00 for 6.30pm Monday 30 November 2009,
The Grand Lodge Room, Sydney Masonic Centre
66 Goulburn Street (corner of Castlereagh St), Sydney

Cost: FREE

ACT same sex saga: round 3

Earlier this month, the ACT Legislative Assembly passed laws to allow for civil unions. This is the third time that it has gone down this path, this time on the initiative of the Greens with the support of the Labor government. The first time the then Howard Government vetoed the laws, then Rudd said that he would do the same.

Rudd has been reported, again, as saying that if the ceremony mimics that of marriage then the ALP will veto the legislation. It is likely that he will exercise the veto. This is despite both the Tasmanian and Victorian branches of the ALP calling for the Marriage Act to be amended to allow for same sex marriage, and the Victorian branch calling for the veto not to be exercised.

Monday, 16 November 2009

Separation costs Aussie men $110,000 in happiness, women only $8900: researcher

Thursday, 12 November 2009

Surrogacy Qld Style: The Borg's April Fool

Deputy Qld Opposition Leader Lawrence Springborg

Lawrence Springborg has attempted to torpedo the Bligh Government’s proposed surrogacy laws by excluding singles and same sex couples.

Qld Attorney-General Cameron Dick

The recently released Queensland Government bill, produced by Attorney-General Cameron Dick, proposed that everyone- gay or straight, single, couples or married- could have access to altruistic surrogacy in Queensland. It followed the all party committee recommendations.

It also followed the recommendations that lesbian co-mothers be recognised on children’s birth certificates.

The only difficulty I saw with the Government Bill was that the ban on commercial surrogacy still criminalises Queenslanders who go to overseas commercial surrogacy clinics. It is one thing to ban Queenslanders in Queensland. It is quite another to stop them going anywhere else in the world- anywhere from Azerbaijan to Zambia to attend a commercial surrogacy clinic.

But then along came the Borg. Lawrence Springborg has put an alternative bill, to start on April Fool’s Day, before Parliament. If passed, it will:

  • Remove protections of the Anti-Discrimination Act
  • Prevent single people and LGBT couples from accessing surrogacy
  • Only cover heterosexual de facto couples, if they have been living together for two years
  • Directly criminalise those Queenslanders who are not married or living in heterosexual de facto relationships from accessing surrogacy clinics interstate- continuing the Joh-era regressive laws - the only State to criminalise surrogacy.
  • Not allow lesbian co-parents to be recognised on the birth certificates, leaving their children in legal limbo.

Vowing not to be “high jacked by social engineers who wish to use the
opportunity to redefine the mainstream understanding of family”, Springborg said:

“The bill also makes it clear that the only form of surrogacy which will be legal will be non-commercial and for heterosexual couples only. Same-sex, single and commercial surrogacy arrangements will remain illegal…

“The Bligh Government’s position on same sex surrogacy also contradicts Labor’s position when the Government excluded same sex couples from adoption.

“The LNP has said from day one that we believe the changes to altruistic surrogacy laws, an important and contentious piece of legislation, should be voted upon and debated separately and be limited to married and de facto heterosexual couples, whilst
allowing for a separate debate on the issue of parentage recognition for same sex female parents of a child conceived through assisted reproductive technologies.”

Submission to Qld Government's proposed surrogacy bill

My submission on the Queensland Government's exposure draft of the Surrogacy Bill:


I wish to make a submission about the above Bill.

Congratulations on the Bill.

With one exception, I am strongly in favour of the terms of the Bill. It reflects the views of the all party Committee. It is not discriminatory. It allows for the recognition of lesbian co‑parents on birth certificates.

Executive summary

I am a family lawyer who has advised clients regarding surrogacy issues. I strongly support the Bill and commend the Government as to the contents of the Bill, with one exception – the criminalisation of Queenslanders entering into commercial surrogacy arrangements overseas.

The explanatory memorandum of the draft Bill suggests that the intended extra territorial application is on the recommendation of the Parliamentary Committee, when it was not.

I question whether there has been a breach of the Legislative Standards Act.

Who am I?

I am not a broker or advocate of commercial surrogacy clinics. I am merely a lawyer. I oppose the unnecessary criminalisation and stigmatisation of Queenslanders who choose, or feel that they have no choice but to engage a commercial surrogacy clinic.

This submission is made in my personal capacity. I was admitted as a solicitor in 1997. I have practised solely or predominantly in family law since then. Since 1992, as part of my practice, I have acted for gay, lesbian and transgendered clients. I have had a close involvement with various LGBTI community organisations over many years.

Shortly after the enactment of the Surrogate Parenthood Act 1998 I acted for a surrogate mother who had entered into a commercial surrogacy arrangement and who decided to keep the child. There was no subsequent prosecution and nor were there any proceedings under the Family Law Act. The child presumably is now an adult. Presumably the intended parents did not take any action because they were aware of the illegality of the arrangement that they had entered into.

In recent years, I have been consulted by clients in Queensland, interstate and overseas who have entered into or have intended to enter into surrogacy arrangements.

All have been aware that surrogacy is illegal and have not intended to enter into a surrogacy arrangement in Queensland.

However, I have had to very carefully obtain instruction as to whether the clients ordinarily resided in Queensland. This is because of section 3(2)(b) of the Surrogate Parenthood Act 1998 which criminalises acts of surrogacy when:

“the offender is ordinarily resident in Queensland at that time, irrespective of where the act occurs.”

Thus, people who have been caught by this section have been those who have:

(a) Contemplated altruistic surrogacy arrangements with clinics interstate; and
(b) Those who have already engaged the services of a commercial surrogacy clinic overseas.

Why do people seek to access surrogacy?

The issue of surrogacy is a vexed one. Where the intended parents either utilise the assistance of friends or family or attend an overseas commercial surrogacy clinic, it has been my experience that they have not done so on a whim or some flight of fancy.

These clients have made the decision to have a child by surrogacy only after extremely careful deliberations on their part, and after consideration of the alternatives.

The alternatives to surrogacy

The desire to have children is a burning desire for many people. It is an inherent part of their makeup and a desire that they have no doubt had since they were children. It is considered normal within our society for people to rear children. Through my practice, I have seen people who have a burning desire to have children and feel crushed that they cannot have children. This desire extends to childless couples, lesbian couples and gay couples.

Practising as a family lawyer is hard work. I see people who are in pain following separation and divorce. They are often very sad and angry.

To tell people, who have a burning desire to have a child, that they will be committing a criminal offence if they engage in altruistic surrogacy, whether in Queensland or elsewhere or as Queenslanders if they engage an overseas commercial surrogacy clinic, is an emotionally searing event. The sooner that the Parliament passes laws that allow for altruistic surrogacy in Queensland, the better. People who seek surrogacy have already considered the other options:

(a) Conception by sexual intercourse. Infertile couples do not have a choice. They cannot access this option. Lesbian couples avoid this option in part because it is deeply offensive and in part because there are legal implications under the Family Law Act, the Child Support (Assessment) Act and the Status of Children Act.

(b) The use of assisted reproductive technology. IVF and similar technology has enabled a revolution. However, it does not work with everybody. It has meant that lesbian couples in particular are now having children, although many lesbian couples I have seen have contacted sperm donors privately and have used donated sperm at home with the assistance of their partner to conceive. Of course, this option is not open to gay couples.

(c) Adoption. There are very few children to adopt in Queensland. It is unlikely that that situation will change. Childless couples who have seen me have either explored adoption as an option and discovered that, at best, they are in the waiting list for many years or have, namely same sex couples, been excluded by legislative imprimatur.

(d) Altruistic surrogacy. Those couples who are then lucky enough to have friends or family who can provide assistance are then in a position to engage in altruistic surrogacy. The look of joy and relief on people’s faces that they can have children is indescribable. The pain that people, upon being told that their engaging in a surrogacy arrangement is a criminal offence, is similarly indescribable.

(e) Some people, who have a burning desire to have children, do not have friends or family who can provide altruistic surrogacy, cannot adopt and feel that ultimately they have little option but to use a commercial surrogacy clinic. Their view is that they would rather avoid using such a clinic because it is very expensive but they feel that they have little alternative. It is for them the option of last resort.

It must be said here that whilst the legal considerations of commercial surrogacy are problematic, and Australian Parliaments have formed a consensus against commercial surrogacy, Australian clients, after UK clients, are the biggest group of clients for the commercial surrogacy clinics of California.

Lesbian parents on birth certificates

There has been a lesbian baby boom in Queensland. The lesbian co‑mother is now recognised as a parent under section 60H of the Family Law Act. However, that statutory presumption is simply not enough. The proposed amendments contained in the draft are essential. That is because of the decision in the Family Court in Verner v Vine (2007). In that case two women lived together for several years, owned their home together, and went to an IVF clinic together seeking the conception of a child on the basis that they were a lesbian couple.

The child was born. Their friendship soured. The mother of the child subsequently married and started a new family with her husband.

The other woman applied to the Family Court to spend time with the child on the basis that they had been a lesbian couple. On the above criteria, one may well have expected that the Family Court held the view that these two women were a couple. However, the mother testified that she had lied to the IVF clinic that they were a lesbian couple, that they were merely friends, and that she had lied because she was so desperate to have a child she would say anything. The mother was believed by the Court and the effect of the Court’s ruling was that the other woman was excluded from the child’s life.

That case largely revolved around the issue of credibility.

As a result of that decision, I have had to advise my lesbian clients that they ought to obtain orders under the Family Law Act to ensure that both are recognised so that there is not a possibility that if they later split up the natural mother denies that the other is a co‑parent or that they lived in a lesbian relationship. That process is a costly one and only reflects orders until the child is 18 and does not properly recognise the role of a co‑mother as a parent.

Registration of both women on the birth certificate is quick, fast, cheap, and provides clear evidence of their intention. It is to be commended and the sooner it is enacted the better.

My only criticism of the Bill

This relates to the ban on Queenslanders utilising the services of overseas commercial surrogacy clinics. I note that the explanatory memorandum states that it is the recommendation to decriminalise altruistic surrogacy:

“This is achieved in the Bill by the repeal of the SPA in enacting the new Surrogacy Act 2009 that allows parties to enter into altruistic surrogacy arrangements, while maintaining prohibitions against commercial surrogacy arrangements, advertising for surrogacy and receipt or giving of brokerage fees.”

The effect on people of the current ban

A conviction for a criminal offence can hurt some people more than others. Those who are public servants or professionals could discover that by virtue of a conviction they lose their employment and their professional status by having brought their profession into disrepute.

I have been consulted by health professionals who have wanted children by surrogacy. Some have considered moving interstate, so as to engage in altruistic surrogacy.

Others are prepared to defy the ban on undertaking commercial surrogacy overseas.

Differences between Queensland and New South Wales

Under the Bill there will be a significant difference for those living on either side of Griffith Street at Coolangatta/Tweed Heads. Someone living on the Tweed Heads side of Griffith Street who enters into an overseas commercial surrogacy arrangement does not commit any criminal offence. Those living on the Coolangatta side, however, do under this Bill.

It is my view that the proposed Bill in this respect is harsh and unrealistic. It denies the natural desire of people to have children and will fail in its intent to prevent people from accessing commercial surrogacy clinics overseas. The reality is that Australians, including Queenslanders, are accessing commercial surrogacy clinics in such faraway places as California, India, Russia and apparently Thailand. They will continue to do so, irrespective of what the Queensland Parliament passes.

Instead what will happen is that Queenslanders who engage in that behaviour will, probably unknowingly, have committed criminal offences in Queensland. Those, however, who reside on the Tweed Heads side of Griffith Street do not commit the offence.

Given the consensus of Parliaments in Australia to ban commercial surrogacy, it is entirely appropriate to have such a ban within the Bill.

The fine print: Queensland v New South Wales

The key provision which criminalises Queenslanders attending overseas commercial surrogacy clinics is contained in section 54 of the draft Bill which provides:

“54 Territorial application
This part applies in relation to –
(a) acts does in Queensland regardless of the whereabouts of the offender at the time the act is done; or
(b) acts done outside Queensland if the offender is ordinarily resident in Queensland at the time the act is done.”

The only point in having section 54 is so as to ensure that by virtue of paragraph (b) the Act would have extra territorial application, ie wherever Queenslanders go in the world they commit an offence if an offence is set out somewhere else in the Bill.

That section is section 56 which provides:

“56 Commercial surrogacy arrangements prohibited
A person must not enter into or offer to enter into a commercial surrogacy arrangement.
Maximum penalty – 100 penalty units or 3 years imprisonment.”

Therefore the combined effect of sections 54 and 56 means that if a Queenslander enters into or offers to enter into a commercial surrogacy arrangement, anywhere in the world, whether that be in Azerbaijan or Zambia, or anywhere in between, they commit an offence in Queensland.

The explanatory memorandum states:

“The Bill includes offences relating to: entering into a commercial surrogacy arrangement; advertising for surrogacy; receiving or receiving brokerage fees for surrogacy. These matters are existing offences in SPA and have been included in this Bill. The offences carry the same penalties that are imposed in SPA. The committee in the Report recommended that these matters be retained as offences when new legislation is enacted for the regulation of surrogacy in Queensland.”

The explanatory memorandum goes on to state:

“The Committee was clear in the Report that commercial surrogacy arrangements should not be fostered.”

By contrast the New South Wales position is a lot simpler and does not contain an extra-territorial prohibition. It sets out clearly that the New South Wales Parliament does not approve of commercial surrogacy, because it criminalises it, but does not extend to people from New South Wales being prohibited from going overseas to commercial surrogacy clinics. Section 43 of the Assisted Reproductive Technology Act 2007 NSW provides:

“43 Commercial surrogacy prohibited
A person must not:
(a) enter into a commercial surrogacy agreement; or
(b) arrange a commercial surrogacy agreement; or
(c) accept any benefit under a commercial surrogacy agreement, whether for himself or herself or for another person.
Maximum penalty: 2,500 penalty units in the case of a corporation or 1,000 penalty units or imprisonment for 2 years, or both, in any other case.”

There is no extra-territorial application under that Act.

I take issue with the comment in the draft explanatory memorandum as to the comments made by the committee. In that the Committee’s terms of reference “exclude considerations of commercial surrogacy, which is illegal throughout Australia”.

With respect, the committee did not advocate for the continued criminalisation of Queenslanders attending overseas commercial surrogacy clinics. What the committee stated was: [1]

“The committee considers that decriminalisation of altruistic surrogacy alone may remove some of the unintended consequences such as the potential stigmatisation of families and the pursuit of commercial arrangements overseas. However, the committee believes that further measures are required to prevent harm and ensure parity with other families. For the committee, this entails the development of a legislative and regulatory approach which strengthens existing regulation to better manage identified risks for the child of the parties through ART. It also requires legislation which addresses issues of legal uncertainty for the child of the parties through the provision of a specific provision to transfer legal parentage. The committee’s position also reflects its judgment about the role of government in a liberal democracy and pluralist society.” and “The committee acknowledges that people in our society are free to decide to conceive a child and to take on the rights and responsibilities of parenthood. It believes that this liberty should be extended to the maximum extent possible to consenting adults who are unable to conceive or carry a child themselves provided the birth mother’s consent is informed and freely given.”

The committee noted: [2]

“The current National Health and Medical Research Council exclude commercial surrogacy and require “every effort is made to counsel parties in the case of altruistic surrogacy”.

The committee stated: [3]

“The committee considers the reimbursement or payment of “reasonable” expenses is consistent with the prohibition on commercial surrogacy and is consistent with the concept of “altruistic” surrogacy.”

The committee stated: [4]

“The committee recommends that the government prohibits advertising and brokerage for altruistic surrogacy under the Surrogate Parenthood Act 1998.”

This position reflects the committee’s desire to avoid commercial surrogacy and its preference for arrangements between family networks and close friends which have an opportunity for ongoing contact between the child and birth mother.

The committee recognises: [5]

“It may not be possible to prevent people resident in Queensland from accessing advertising and brokerage services, particularly those available on line. However, to the maximum extent possible Queensland based advertising and brokerage should be discouraged.” [emphasis added]

Legislative Standards Act

I note that section 4(2) of that Act provides that legislative principles include requiring that legislation has sufficient regard to –
(a) rights and liberties of individuals; and
(b) the institution of Parliament.

It is my view that the extra-territorial provision in the Bill does not:

(a) have sufficient regard to the rights and liberties of individuals, by denying them the choice of what they may wish to do anywhere else in the world other than in Queensland; and

(b) does not have sufficient regard to the institution of Parliament without there being a fundamental statement in the explanatory memorandum as to why the Parliament considers that it is appropriate for the extra territorial application.

National 15 point plan

Last week the Standing Committee of Attorneys-General reached agreement, subject to the Health and Communities Ministers Councils, on a national 15 point plan for surrogacy. The plan has not been made public. I do not know whether or not the draft Bill is in accord with the plan.

[1] P.2
[2] P.25
[3] P.33
[4] P.37
[5] P. 38

Record submissions to Senate enquiry for same sex marriage rights: AAP

A Senate inquiry into same-sex marriage has received more than 26,000 submissions, a record for an Upper House investigation.
The Senate's legal and constitutional affairs committee is examining a private Bill, introduced by Australian Greens Senator Sarah Hanson-Young, which aims to alter the Marriage Act and give same-sex couples marriage rights.

Full story on

Sunday, 8 November 2009

Equal rights rallies on 28 November

On Friday following the end of work, I walked down George St listening to the raucous sounds of a woman on a megaphone, yelling out something or other. Intrigued, I walked across the road, to find to my surprise that she was yelling out for same-sex marriage rights, and that there would be a rally on 28 November. It turns out that there are to be a series of rallies that day for same-sex marriage rights.

The Brisbane rally, under the banner of "Equal Love. Equal rights." is sponsored by:

There will be similar rallies in other capital cities. The purpose of the rallies will be to launch the year of action for same-sex marriage rights.


When: 1pm Saturday 28 November

Where: Queens Park, George and Elizabeth Sts- opposite the Treasury Casino


When: 1pm Saturday 28 November

Where: Sydney Town Hall


When: 1pm Saturday 28 November

Where: State Library


When: 1pm Saturday 28 November

Where: Garema Place, Civic


When: 11 am Saturday 28 November

Where: Parliament House

Saturday, 7 November 2009

Surrogacy: proposed 15 point plan for national laws

Federal and State and Territory Attorneys-General have agreed to a 15 point plan for consistent surrogacy laws. The Standing Committee of Attorneys-General, the unfortunately named SCAG, issued this communique yesterday:

The Standing Committee of Attorneys-General in conjunction with the
Australian Health Ministers Conference and the Community Services
Ministers Conference has been working towards developing model provisions
that will form the basis of surrogacy laws in Australia. Ministers
agreed to a set of 15 draft principles upon which the model provisions could be
based. These draft principles will now be referred to the Australian
Health Ministers Conference and the Community Services Ministers
Conference to consider. Ministers recognised that valuable input from the
public consultation informed the development of the 15 principles.

I asked the Commonwealth's Attorney-General's media officer yesterday for the release of the 15 principles, but was told that he did not know whether the 15 principles were for public information or not, and that he would get back to me. At the time of posting, he had not.

Thursday, 5 November 2009

Same sex domestic violence: Life Matters

The ABC's Radio National Prorgam has recently highlighted the issue of same sex domestic violence. For the article, click here.

Last night after the LGBTI meet and greet

Last night I joined the management committee and other lawyers at a meet and greet to help get up and running Brisbane's LGBTI Legal Service. The service will be the first independent LGBTI legal service in the country, and is expected to commence operations early in the new year.

The meet and greet went well, with a good number of lawyers turning up keen to help out, and some well known and not so well known faces in attendance. President Merran Lawler greeted all, expressed her profuse thanks to all who had helped so far, and expressed her hope to get the service up and running quickly.

And now for the rant...

That was the good part of the evening. Now I digress. Afterwards I was in my car in the Valley waiting at some lights to change, when at the intersection in front of me a pedestrian fell and stumbled flat- smack onto the asphalt. Hat went flying. Out cold. The lights changed and the people in the car beside me pulled up on one side of him and I on the other.

Well that was the case until the man in the 4WD behind me abused me for holding up a public road, and to get the car off the road. I was in shock about what I had seen and this bloke's attitude, but thought better of it to abuse him, and pulled the car over to the side. The big black 4WD roared off.

000 was soon called, and in the meantime we three bystanders tried to help the man, quickly helped by a nurse from Sullivan and Nicolaides who happened to be there, and the operator from 000. The man's pulse was taken. We rolled him onto his side to make sure he didn't choke, and stayed with him to make sure he was OK. He was still out to it.

And in the meantime, with this man down on the road, cars, buses and trucks continued to roar past. No doubt the drivers thought it had nothing to do with them.

The ambos turned up, followed by the firies, who brought a huge truck that thankfully blocked the road. Police. More police. More ambos. Flashing lights all over the place. Other people also phoned 000. They were told by 000 to block the road. Impossible to do without official help. Abusive other drivers- whose right to own the road they believed was more important than the fact that there was a man down.

The man, who was conscious by this time, did not speak English or Chinese- as a Chinese man had come up and tried to speak to him- without luck, and had became very aggressive. He reeked of booze. Ambos and firies manhandled him to the side of the road.

I gave a statement to police. The man was being led away in the ambulance as I left. And I can't forget the high points of humanity- the people in the other car, who stopped first, the nurse from S&N, and the people whose job was to help this man; and the low point of humanity: other drivers, but especially the man in the 4WD abusing me for the temerity of stopping to check if this fallen man was OK.

Wednesday, 4 November 2009

Second Class Families: Interstate Recognition of Queer Adoption

US law student Christine Olson has written a scholarly article-Second Class Families: Interstate Recognition of Queer Adoption [PDF]- about how in the US same sex adoptions are recognised in some States, and not recognised in others. She asserts that they should be recognised in every State, and if necessary be recognised through the US Supreme Court.

The article resonated with me, because same sex adoptions are recognised here in WA, ACT and in limited circumstances in Tasmania. A parliamentary committee has recommended that they be allowed in NSW. They are banned in the other States and Territory. Queensland, which has just reviewed its adoption laws specifically excluded same sex adoptions.

Would an adoption in one State or Territory be recognised in another? At some level it is a moot point because of recognition of adoption for the definition of "parent" under the Family Law Act - but there are other laws where it might be a critical point.

Tuesday, 3 November 2009

Scientists can now make eggs and sperm: Nature journal

U.S. researchers have found a way to coax human embryonic stem cells to turn into the types of cells that make eggs and sperm, shedding light on a stage of early human development that has not been fully understood.
The findings could lead to new understanding of inherited diseases and transform treatments for infertility, they said.
"We are really trying to look at the origins of normal and abnormal human development by going to the source," said Dr. Renee Riejo Pera of Stanford University in California, whose study appears in the journal Nature.

For the detailed article from Reuters, click here.

So far as the law is concerned, the law is having great trouble keeping up with how science now enables babies to be made. If a child is able to be conceived following these advances, there will be many great legal challenges to be overcome.

Monday, 2 November 2009

Draft Queensland surrogacy bill released

The Queensland Attorney-General Cameron Dick has released for comment the draft surrogacy bill. The draft bill, as previously detailed:
  • decriminalises and regulates altruistic surrogacy;
  • follows an ACT model to allow the intending parents to be named as the parents on the birth certificate;
  • outlaws commercial surrogacy;
  • includes same sex people as intended parents.

The Bill allows either single people or couples to be intended parents.

The Bill also allows for female partners of birth mothers to be recognised on the birth certificates, a change that was previously flagged.

The Bill contains a nasty clause banning commercial surrogacy. The ban does not cover just what happens in Queensland, but also if it happens anywhere in the world, or in the words of the Bill:

acts done outside Queensland if the offender is ordinarily resident in
Queensland at the time the act is done.

If an ordinary Queenslander decides to go to an overseas surrogacy clinic, such as in California or India, and enters or offers to enter into a commercial surrogacy arrangement, then the person commits an offence for which he or she could receive a fine or a 3 year jail term.

Queensland has been rightly criticised before this Bill for having the most regressive surrogacy legislation in the country: the Surrogate Parenthood Act 1988, which criminalises surrogacy whether it occurs in Queensland, or outside if undertaken by a person ordinarily resident in Queensland. This Bill makes it plain that Queenslanders will still be denied the choice of going to an overseas surrogacy clinic. The Bill therefore would seem to actively discriminate against gay men, who:

  • cannot have children;
  • are banned in Queensland from being able to adopt;
  • may have difficulty locating an altruistic surrogate;
  • and therefore believe that their only option is to go to an overseas clinic.

Unfortunately, the explanatory memorandum of the bill is silent about why it is appropriate for overseas commercial surrogacy arrangements to be banned.

Comment on the draft Bill is open until 10 November, 2009.

Migration changes to recognise registered same sex relationships

By Mark Webster, Acacia Immigration Australia

Australian Migration Regulations will be changed from 9 November to partially recognise same-sex relationships which have been registered in an Australian state or territory.

Currently, applicants for permanent visas, partner visas, student visas and general skilled migration must show 12 months of cohabitation before they can include a same-sex or interdependent partner. Applicants also in general need to show that they have lived together for 12 months to be sponsored by an Australian same-sex partner for an interdependency visa.
However, from 9 November, people who have registered their relationship with an Australian state or territory will be exempt from the 12 month cohabitation requirement. Whilst Australia does not recognise same-sex marriage, certain states and territories do allow such couples to register their relationships – states where this is possible include Victoria, Tasmania and the ACT.

Couples will still need to show that they are living together, but will not need to show 12 months of cohabitation as is currently the case. State legislation would not in general specify the sex of the people in the relationship, and so there would be the possibility of heterosexual couples who register their relationship instead of getting married taking advantage of the new changes.
Whilst this is a positive development, it is somewhat disappointing that only relationships registered in Australia are eligible for the concession. Marriages or registrations which have taken place in overseas countries which recognised same-sex relationships are still not recognised in Australia.

It has been possible since July 2009 to include same-sex partners in most applications for Australian visas providing the applicants can show that they have been living together for the required amount of time. In this case, they are treated as a de facto couple. For permanent visas, you must in most cases show that you have lived together for 12 months, but for temporary visas, 6 months is generally sufficient (except in the case of student visas or provisional skilled visas).

Sunday, 1 November 2009

Argentina contemplates same sex marriage recognition

Is Argentina ready to become Latin America's first nation to legalize gay marriage?
Gay and lesbian activists think so — and they have a growing number of supporters in Congress, which opened debate Thursday on whether to change dozens of laws that define marriage as a union between a man and a woman.
"We can't expect social equality if the state is legitimizing inequality," said Maria Rachid, president of the Argentine Gay, Lesbian, Bisexual and Transgender Federation. "We now have the social and political context necessary to change the law."

For more, see the Associated Press article. Thanks to Sexual Orientation and the Law Blog.

Transsexual wins apology from DFAT over passport: Brisbane Times

Brisbane Times is reporting that transsexual Stefanie Imbruglia, who was forced when travelling to Thailand in 2007 for gender reassignment surgery to travel on a male passport, has received an apology from the Department of Foreign Affairs and Trade.

Parliament House LGBTI function

Grace Grace
On Thursday night I joined about 100 LGBTI people at a getting to know you function at Parliament House at the invitation of Grace Grace MP. The night was apolitical, and there was no lobbying.

It was a good chance to talk to the pollies- and they were quite a few to turn up, 17 in all. It was extraordinary to have so many turn up. For those who think that the LGBTI issues are ones owned by the ALP, what was particularly impressive was the number of LNP members who turned up.

Members who attended included:
Communities Minister Karen Struthers (ALP)

Opposition Leader John-Paul Langbroek (LNP)

Dean Wells (ALP) former Minister and Attorney-General

Kerry Shine (ALP), former Attorney-_General

I managed to talk to:

Deputy Opposition Leader Lawrence Springborg (LNP)
Despite his busy work schedule, which necessitated his leaving the function, the Borg found time to come back for more.

Mark McArdle (LNP) Former Deputy Opposition Leader

I knew Mark when I was a Brisbane family lawyer and he was a Sunshine Coast family lawyer. He was always an honourable opponent.

David Gibson (LNP)

Scott Emerson (LNP)

Evan Moorhead (ALP)
I am on a committee for a court based domestic violence service. As local MP, Evan has been a great help in supporting that much needed service.

Tuesday, 20 October 2009

Sydney man acquitted of murdering his partner

Sydney man Michael Atkins, 45, has been acquitted of murder and manslaughter of his former partner Matthew Leveson, 20, who disappeared in 2007, according to the ABC.

Thursday, 15 October 2009

I am now the subject of a White Ribbon Day poster campaign in Queensland
If you think property settlement is bad in Australia, try England: Australian Divorce Blog
Family Court starts using its domestic violence best practice principles : Australian Divorce Blog
Gya couple allowed to go to court about lesbian's child, who was not genetically theirs: Aust Gay and Lesbian Law Blog

Gay men allowed to go to court about their friend's child

The complexities of gay and lesbian parenting have been brought home in the recent Federal Magistrates Court case of Halifax and Fabian. The case involved:
  • a lesbian couple, Ms Halifax and Ms Fabian, who had been together for 7 years, but who had split up a year before the court decision
  • their two kids, X and Y. Ms Halifax is the mother of Y, a girl aged 7, and Ms Fabian is the mother of X, a girl aged 3.
  • The father of Y was Mr Dalton. X's father was an anonymous sperm donor.
  • Mr Dalton had partnered a Mr Ballard.
  • There were three houses for the kids- Ms Halifax's, Ms Fabian's and the men's house.

Ms Fabian decided that she wanted to move to NSW from south-east Queensland with X.

The preliminary question for the court was whether the men, who had no genetic connection with X had a right to go to court, on the basis that they were people concerned with the "care, welfare and development" of X. Federal Magistrate Purdon-Sully held that the preliminary threshold had been met.

Her Honour found:

Whilst it is clear that historically the relationship between Ms Fabian and Mr
Dalton and Mr Ballard was not as close as that enjoyed by Ms Halifax... and
whilst it is clear the mother was less committed to the particular type of
non-traditional family arrangement enthusiastically embraced by her former
partner, ..... and whilst there may be some merit in the submission of counsel
for Ms Fabian, Ms Brasch, that it was a life-style choice ultimately imposed
upon her as a consequence of her relationship with Ms Halifax and her commitment
to their parenting of [Y], the evidence is that Ms Halifax and Ms Fabian made a
decision to parent their children together, without differentiation and Ms
Fabian knew that Mr Dalton (and his partner) would be involved in the parenting

The evidence showed:

  • The men were involved in the parenting of both children. They had established a home to accommodate the development of the relationship and had made employment and residential adjustments to that end.
  • Decisions were made prior to conception of both children including with respect to religion, education, circumcision, discipline, all four adults agreeing to remain living in south-east Queensland.
  • The men accepted Ms Fabian's invitation to attend her twelve week pregnancy scan.
  • The men visited the hospital the day of X’s birth and daily thereafter and cared for Y until X was brought home.
  • The men were introduced as “daddy” to the friends and family of the applicant and mother. X referred to her mother and Ms Halifax as “Mummy” and “Mama” and to the Mr Dalton as “Daddy” and “[Mr Ballard] [first name omitted]” (and possibly “Daddy [first name omitted]” on the evidence of Mr S.)
  • The children developed a close attachment to each other and to the men. The family report writer observed that the children were strongly attached and affectionate with both mothers and affectionate and secure with both men. Ms Fabian acknowledged that the men loved [X], that [X] was comfortable with them and that they had a bond with her and should spend time with her, her complaint being that they should not be permitted to assume a parental-decision making role.
  • The men spent regular time with the children including on weekends and week days and they were also asked to babysit from time to time.
  • Whilst Ms Fabian's refusal to agree to overnight time caused some angst and created problems, on their evidence, with [Y]’s arrangements, on one occasion Ms Fabian did agree to this to enable [X] to spend time with her grandmother, Mr Ballard’s mother who was visiting.
  • The men exchanged gifts with the children on birthdays, special occasion, on Father’s Day and at Christmas, including in 2008 after Ms Halifax and Ms Fabian had separated.
  • The men and women socialised, attended activities, celebrated special occasions and had holidays together.
  • The men attended with the children and Ms Fabian at the annual gay pride parade marching in the family section of the parade.
  • The men established a separate bedroom for [Y] and [X] with a bed that converted to two singles beds to accommodate any overnight stays and did so with the knowledge and without objection from the applicant or the mother.
  • [X] had a photo of the two men in her bedroom.
  • The men were listed by Ms Halifax as emergency contacts in 2006 and 2007 at [X]’s day-care centre.
  • Ms Fabian consulted Mr Dalton about some medical issues to do with [X] given his medical background.

Wednesday, 14 October 2009

Online resource for US law students: course outlines for free
ADF fails women and court orders in domestic violence cases: Australian

Sunday, 11 October 2009

Brisbane LGBTI legal service meet & greet to be held on 4 Nov for interested lawyers: Australian Gay and Lesbian Law Blog
Uruguay permits same sex adoptions, already permits civil unions: Aust Gay and Lesbian Law Blog
Obama pledges to scrap don't ask, don't tell