Equal before the law

ANU Reporter: What’s the first step in ending legal discrimination against same-sex relationships?
Wayne Morgan: Decriminalisation is the first step. That makes sense on the basis of logic but also on the basis of experience in history. If we look overseas, it usually starts off with decriminalisation, then it moves to some form of anti-discrimination protection, and then, most problematically, it moves on to things like recognition of relationships and family rights.

Where did decriminalisation begin in Australia?
The ACT was the first jurisdiction to do it under the Federal Government, as it was before self-government. It’s interesting that it happened here first given the homophobia of more recent federal governments. The first state to do it was South Australia in the 1970s. Then it followed slowly around the country. Victoria was next, followed by New South Wales. The three laggards were Queensland, Western Australia and Tasmania.

How did you become involved in the legal process that became Toonen v Australia?
That was one of the most interesting experiences of my life. I was overseas doing my Masters degree when the whole case got started, so I wasn’t involved from the very beginning. Nick Toonen and Rodney Croome, who I didn’t know at that stage, were young activists in Tasmania who had been trying to get the Tasmanian anti-sodomy laws changed by a series of legal and political actions, including one that led to their arrest at the Salamanca Markets in Hobart. They decided that because they couldn’t achieve decriminalisation through the Tasmanian Parliament, maybe the UN was an option.

A friend alerted me to the case. I immediately got in touch with them and said: I’m a gay man, I’m one of the few in Australia who knows something about the UN Human Rights Committee process (at that time), so if I can be of any assistance let me know. From that point on I took over the legal side of the case, and was heavily involved in drafting submissions to the United Nations, which is quite a lengthy process. Eventually it resulted in a ruling from the Human Rights Committee of the United Nations [in 1994] that the Tasmanian laws were a breach of Australia’s obligations under international human rights law, and the governments in Australia should do something about it.

The Tasmanian Government still refused to decriminalise, so we had to turn to the Federal Government to try to pass a federal law overriding the Tasmanian law, based on the UN decision. That in itself was an involved process. The Federal Government, in my opinion, never properly did the job, and that is why after it was passed the Tasmanian Government still claimed that their laws were valid because the Federal legislation was so ambiguous. The final stage in the process meant we had to take a case to the High Court.

Finally, as a result of all that process, we got a ruling from the High Court that they would hear the case. When that happened, Tasmania finally caved in and itself repealed the law. It was a very important outcome in Tasmania, not just for decriminalising same-sex sexual activity, but also because it actually led to substantial reform of the Upper House in Tasmania. It was the Upper House that had prevented decriminalisation for a number of years. The case had ramifications far beyond just repealing the law.

What were some of the other ramifications?
The decriminalisation process itself substantially influenced the attitudes of Tasmanians generally speaking. Because of the wonderful myth-busting that the Tasmanian gay and lesbian rights groups were able to do, attitudes towards sexuality in Tasmania really changed and that was reflected in surveys. Because of that it meant that the time was then right to put in place a whole lot of reforms. For example, the Tasmanian Anti-discrimination Act that was passed had fewer exemptions in relation to sexuality than any of the other state acts. It was actually a stronger form of anti-discrimination protection.

Also, Tasmania was one of the first jurisdictions to begin actual homophobia programs within secondary schools. Tassie also took the lead in terms of recognition of gay and lesbian relationships. In 2003 it put in place the first civil union scheme in Australia.

You advised the Tasmanian government on its civil union scheme for same sex relationships. How do you start designing that kind of system?
Based upon community consultation with the gay and lesbian community, we had very clear ideas about what the law should do if we could get it through. Then it was a matter of looking at whether any other models that already existed fulfilled those goals. Two of the important models were first, a proposal from NSW originally made in the 1980s that was never debated in parliament and, secondly, the New Zealand proposals for their civil union scheme.

We felt it was important not just to include gay and lesbian relationships, and not just put in place a system that mimicked marriage. What we wanted to do was to put in place a different system of relationship recognition that would be open to anybody who either did not want or could not marry. Also, we didn’t want it to be restricted just to “conjugal” couples. If you think about it, there are a number of people in intimate relationships that might not be sexual, but who also need their relationships recognised for a number of legal purposes.

So the Tasmanian law went far beyond anything that actually existed globally at the time by achieving both of those goals. By having a diverse and open scheme, that basically means any two adults in an intimate relationship can register their relationship in Tasmania and in that way get all of the rights and obligations of married couples to the extent that Tasmania can achieve this. It’s not completely possible because of our federal system which means that many areas of relationship regulation are the responsibility of the Federal Government.

That’s why I sometimes get very annoyed that one of the criticisms of the Tasmanian law is that it doesn’t mimic marriage enough. One of the goals from the very beginning was that it shouldn’t mimic marriage, that instead it should be as inclusive as possible and not just open up marriage to what is a very small group, that is, conjugal gay and lesbian couples.

Is a civil union scheme the end of the line for abolishing legal discrimination against gay men and lesbians?
There’s a lot still to be done. Even though I’m not a fan of marriage, that remains one of the largest concerns for gay and lesbian communities nation-wide. Of course, even though I’m not a supporter of marriage, it is true to say that we will never be equal in Australian society whilst this great marker of legitimacy is denied to us. I do see the marriage fight as important on that level.

In 2008 one thing the Rudd Government did do — and it’s something gay and lesbian communities had been lobbying about for over a decade – was pass federal law reforms to equate gay and lesbian couples with heterosexual de facto couples. In almost all circumstances now under federal law, gay and lesbian couples are treated the same as heterosexual de facto couples. But de facto status isn’t sufficient because it means gay and lesbian couples will still be regarded as inferior so long as marriage is denied to us..

Those federal reforms last year were also extremely important in giving gay and lesbian couples access to the Federal Family Court, which is a much more experienced institution and a faster and cheaper institution in dealing with relationship and custody issues.

What else remains to be done?
Under a number of state and territory laws we still don’t have full reform on relationship issues, and particularly family issues. Recognising the rights of coparents, for example, varies from state to state.

Gay men and lesbians are covered under all of the state and territory anti-discrimination laws, but there is still no cover under federal law. All Commonwealth agencies are immune from being defendants under state and territory anti-discrimination laws. This is particularly an issue as, under last year’s reforms, all gay and lesbian couples receiving benefits will have to “come out” to Centrelink to have their relationships recognised. If they’re discriminated against by Centrelink or one of its staff, there is no protection under anti-discrimination laws.

Also, violence against lesbians and gay men is still a huge issue Australia-wide. Dealing with violence requires a change in cultural attitudes. But there are ways in which laws can have an impact (such as hate-crime legislation), so we need to see what we can do in this area.

Finally, the next big step is to do with transgender rights. Even just looking at all of the different areas where people are required to report their gender, it’s not really necessary at all. The role of gender in our legal system, like sexuality, still needs a lot of work.