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Same-sex relationship laws still lagging: Kirby

Posted October 16, 2008 10:00:00
Updated October 16, 2008 10:19:00

Justice Michael Kirby ... 'same-sex relationships can only be registered, rather like a dog or busker's licence' (AAP: Sergio Dionisio)

High Court Judge Michael Kirby says despite moves to amend discrimination in a number of federal laws, same-sex relationships have been left behind.

Delivering the Rights Australia inaugural John Marsden lecture in Sydney last night, Justice Kirby said denying homosexuals the civil status of marriage was discriminatory.

He said that while many other countries had adopted marriage or civil union laws to protect the civic rights of same-sex couples, Australia lagged behind.

"In Australia, legislation is presently before the Federal Parliament to rectify the discriminatory provisions in a large collection of federal laws," he said in his speech.

"However, relationship measures lag behind."

Justice Kirby said even civil unions seemed a bridge too far.

"The relationships of same-sex couples can only be registered, rather like a dog or busker's licence," the openly gay judge said.

"I hope that fellow citizens of goodwill who think upon this will not be surprised if many homosexual people in loving relationships say politely to this differentiation: 'Thank you, but no thank you'."

Justice Kirby said the debate on recognition for same-sex unions would continue in Australia.

"The direction of history, at least in countries like our own, seems to be in favour of the abiding principle of the equality of citizens of all ages, races, colours, creeds and sexualities," he said.

Marsden

Mr Marsden, a controversial figure who was also open about his homosexuality, was president of the NSW Law Society and the NSW Council of Civil Liberties during his career.

In 1994, he became the subject of paedophilia allegations aired under privilege in the NSW Parliament, but the Director of Public Prosecutions found insufficient evidence to support the claims.

Mr Marsden then sued commercial television station Channel Seven after its Today Tonight and Witness current affairs programs aired similar allegations.

He eventually won what became Australia's longest-running defamation case, but it took a toll on his health.

He died in 2006.

Justice Kirby said Mr Marsden was a considerable achiever, although not without flaws.

"He was courageous and fought tenaciously for civic equality in Australia," he said.

"That is why the lecture has been named after him."

Other criticisms

Justice Kirby also used the lecture to criticise sodomy laws, which still exist in more than 30 Commonwealth countries including Zimbabwe.

He said he had been invited to speak on that topic at the 2009 Commonwealth Law Conference in Hong Kong.

"If John Marsden were here, he would be urging us all to lift our voices to tackle this relic of colonialism which, like the death penalty, persists in many Commonwealth countries, supposedly bound together by mutual respect for human rights," he said.

"Whereas in some countries the criminal laws have been repealed and reformed, the root cause for the animosity and hostility to homosexual people remains the teachings of religious leaders.

"The pain that John Marsden felt over the teachings of his church are translated in many countries, including sometimes our own, into violence, blackmail, hatred, stigma and discrimination."

Justice Kirby retires from the High Court next March.

- AAP

Tags: community-and-society, gays-and-lesbians, human-interest, people, law-crime-and-justice, judges-and-legal-professionals, laws, australia, nsw, sydney-2000

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Comments (82)

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coloru:

16 Oct 2008 10:34:46am

rather than looking who has the right to do this or that... we can simply look at who does not have the right to restrict others from choosing their way of life.

Im not especially interested in the gay cause, Im interested in the cause of people in privileged positions who believe they have a greater ability to decide for someone else what is best. I think we would agree that neither politicians nor clergymen nor journalists are deserving of power over an individual more than that individual him/herself. Laws which provide for social restrictions of freedom are examples of this abuse of privilege and suggest that the law maker is somehow better positioned to decide what is best for an adult than the individual. Law makers and supporters in this case operate only under the age old premace of Witchhunt and contribute nothing of value to a society.

Congrats to Kirby for continuing to pursue his sensible approach to change. Getting religion and dogma out of Australian laws should have been completed decades ago - we are clearly slow learners.

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Hope 4 Progression:

16 Oct 2008 10:38:35am

As a secular nation- and a nation that respects the rights and well-being of all its' people- it's really an embarrassment that Australia is where it is in regards to this issue, amongst others... As we know, the previous Liberal government did play a large role in social policy stagnation. That's more than obvious, and blatantly true!

I pose this question to ALL forward thinking, logical, NON-superstitious/religious Aussies: 'Do you care for the basic rights and well-being of your fellow Aussies?' A simple yes, without having to agree emphatically, is enough to move us forward and to make us SO MUCH BETTER! A simply yes.. without qualification.

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amme:

16 Oct 2008 10:47:44am

Good on you Justice Kirby for speaking out on my behalf about these antiquated and discrimatory laws. Justice Kirby has been the subject of a horrible smear campaign himself during the Howard years when he dared to have an opinion different to that of the government of the day. It is good to see that incident has not dampened his enthusiasm and he is still out fighting for justice against discrimatory and exclusionist laws. I would love my relationship to be recognised and valued by the community i live in and i should have the right to love whomever i choose without the rubbish that currently goes with those choices.

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Beren:

16 Oct 2008 10:48:22am

Yep, I agree. Equality, or Equalisim has no room for discrimination that is based on individual religious or belief.

True Equality would mean I can marry a same sex partner and religious folks can believe what they want and practice their religion freely.

But we don't have True Equality in Australia. Because I Cannot Marry my Partner of choice, I cannot have a ceremony which in the eye's of my peers would solemnise my relationship. Crickey, i dont tell people how to live their lives, no one else should be able to do so to me, and yet it is a fact of life here in Australia.

Australia, the Discriminating Country... what a joke. What ever happened to giving people a fair go. Gee I bet if people started discriminating against christians for being christians here in Australia thier would be an outcry of concern over civic freedom.

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Tom:

16 Oct 2008 10:49:05am

It's disappointing but it doesn't look like this discrimination against Gay and Lesbians will be rectified anytime soon with Kevin Rudd being a conservative Christian and all.

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Zac:

16 Oct 2008 10:49:31am

Are we really so discriminatory as a nation, whether that be homophobic, racist or sexist? As an Australian in the current age, I tend to think that we are. It's sad. I think that a society is influenced by its' leaders, as a child is influenced by its' parents or its' teachers. I know that our leaders over the last generation have certainly been lacking, and have certainly shown to be discriminatory! I hope that our current leaders can show us otherwise..

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benmeover:

16 Oct 2008 10:50:47am

...left behind is exactly where they should be....

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dean:

16 Oct 2008 10:57:12am

Justice Kirby is a welcome voice of reason on the
subject of same sex relations. Same sex
couples are entitled to equal rights, and if
Australia is to become a progressive nation,
then it is vital that we put an end to all
forms of social discrimination.

Heterosexual couples don't think twice about public
displays of affection, yet same sex couples are scorned
upon for similar displays and face violent opposition for simply
holding hands in the street.

It's time that the Australian Government and the public
put an end to this inequality. Afterall, I am, you are, we are Australians.

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Stop_the_madness:

16 Oct 2008 11:03:10am

As long as homosexual Australians continue to be denied the right to marry in the same way as any other Australian couple, I will continue to feel ashamed at our inherently discriminatory laws.

As much as some people like to think that Australians stand for equality and a fair go for all, our unfair treatment of homosexual couples proves that this is not the case.

Good on you, Justice Kirby, for continuing to highlight this poor state of affairs.

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David Ferstat:

16 Oct 2008 11:08:34am

What disappoints me (I wish I could say "surprises me") about this is that it should still be necessary for Justice Kirby to say things like this.

Rudd's ascension last year made me hope that we could at last move past Howard's Australia of the 1950's. Alas, it was not to be, with Rudd announcing that, "as a Christian" he was opposed to homosexual marriage.

Mind you, with the Oath of Office for the Prime Minister of Australia being as skimpy as it is, there's no requirement on the PM to anything he doesn't like, really.

Here's the Oath:

"I, Kevin Michael Rudd, do swear that I will well and truly serve the Commonwealth of Australia, her land and her people in the office of Prime Minister."

(See original here:
http://www.gg.gov.au/governorgeneral/news.php?action=view&id=190)

What I have always failed to see is how allowing homosexuals to marry hurts anyone. It's clear that it helps some people, but if none are harmed, how does society benefit from the ban?

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Michael:

16 Oct 2008 11:14:49am

Hang on - no-one is being prevented from doing anything! Gays and lesbians are free to love and live together. How is this discriminatory?
What is being requested here is the societal sanctioning of their committed relationships. There is a reason why society sanctions heterosexual marriage - it promotes peace in the community and provides the next generation. While there may well be good reasons for society to sanction non-heterosexual unions, nobody here has even attempted to make a supporting argument.
Why do the g & l community think that stamping their feet and making demands will achieve their goals?

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tonyg:

16 Oct 2008 11:21:46am

There are two separate issues here.

The right to civil union with all the pros and cons is essential. It both protects and lays obligations on both parties.

Marriage as a sacrament is a religious issue which is beyond the bounds of Government. If a protest or change of law can change the "sinfulness" status of something, then the ethics of the religion are pretty soft. Shades of "Moses and the 10 Suggestions".

Let's get the civil union component right, with all the balance and fairness a modern civilised liberal nation can muster.

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Lucky:

16 Oct 2008 11:31:12am

Live and let live.. without fear of persecution! Make some gay friends, and you'll all see that they're as human and as flawed as anyone.. (well, almost!) Go on, make some gay friends, and you'll def. be educated on design, decoration, style and FUN! Go on, make some gay friends, and have a BALL!

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Matthew Brown:

16 Oct 2008 11:34:38am

Personally I don't agree with allowing same sex marriages....yet. I think there is a lot more important aspects of law which need to be corrected first and total removal of any discrimination and the full recognition of same sex unions first. And from there, the allowing of same sex couples to marry should come from the federal government and be lawful throughout the country so that we do not see the same issues in the US where one state allows it and not the other.

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Sabine:

16 Oct 2008 11:43:35am

As lawmakers, judges find themselves in a very unique position of privilege and power. Once appointed, judges are free to act and make decisions independently from the executive arm of government, and without the influence of 'blood, guns and money' (as Michael Kirby put it on Tuesday at the ANU).

Michael Kirby is a fine example of a judge who has not been afraid to depart from precedent where he considers that the law is in serious need of reform. The judge has consistently decided cases before him with several questions in mind: will we, in twenty or thirty years from now, look back to the present day and say that the courts acted fairly towards its citizens and non-citizens? That the lawmakers respected and valued the place in society of the Aboriginal people, of women, of gays, and of immigrants? Or will we wonder at the backwardness of our legal system - in a so-called modern country.

This is a man who has acted in a position of power with a clean conscience. His background is interesting in that he is the only High Court judge to have gone through the public schooling system. His exposure to minority groups as a result of his upbringing leads me to hope that more diversity will someday find its way to the Bench to lift the heavy weight of conservatism that is the current flavour of majority judgments. It would be great to see more dissenting opinions that show that Judges are properly debating the issues before them.

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John:

16 Oct 2008 11:48:29am

When will you people get it?
Marriage, by definition, is a union, recognised by law, between a man and a woman.
All this on going reteric is an attempt to change a long-standing definition.
Most people in Australia don't care if you are gay, or live with your gay partner or have a gay lifestyle.
Get over the PR stunts. If you don't like civil union ceremonies or whatever, create a new name for them. Just not marriage.
Find another word. "Marriage" is no more "gay" than black is white or up is down.
I'd really love to see a "straight and single" mardi-gras. Let's celebrate "not being gay". Why? Purely cause I'm tired of everything "gay" being barked through the media.
If you are gay and proud - good for you! May you find happiness in all your days. Just stop bashing everyone with it.

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luke weyland :

16 Oct 2008 11:57:57am

As a happily married straight bloke with 6 kids, I know my relationship with my wife will remain as strong whether or not gays get equal rights. All the talk by Labor respecting equal rights for Gays is a load of rubbish. Labor continues to oppose the rights of Gays to have their relationships legally recognised as marriage.

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AlanM:

16 Oct 2008 12:01:30pm

Perhaps we should clearly differentiate between marriage under law and marriage under religion. Churches no longer have a monopoly over marriage under law and so why should they have a say over who can and can't me married under law?

As far as I'm concerned, I don't care what the churches decide marriage under religion is or is not. As long as marriage under law becomes discrimination free then that's good enough for me. When many (most perhaps?) heterosexual couples don't involve religion with their marriage, why can't we simply not involve religion when homosexual marriage is involved?

I'm an atheist in a secular society so from my point of view the religious position on homosexuality is completely irrelevant.

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Eros Summer:

16 Oct 2008 12:05:12pm

Kevin Rudd has decided to throw Gay Marriage into the bin because he's a Christian. As a leader he should not decide on a policy based on his own personal belief. He's representing Australians of many backgrounds.

What if a non-Christian Australian leader denied a policy that Christians always practice? Is it all right to deny the rights of others because we don't believe in a particular practice?

Whether homosexuality is natural or not, a homosexual person should be able to decide on what is best for him/her. I certainly don't believe in any religion, but why my life activities must be conformed to Christianity?

Australia is a secular nation, not a Christian state! Democracy is aimed to protect the minorities regardless of sexualities, religions, culture and ethnicities. Denying anyone to marry a person he/she loves is like denying Rudd from learning and speaking Mandarin.

At times, I can see that the lines that divide Liberal and Labor parties are becoming painfully blurry, soon they will merge to become a single party.

We need another alternative party that views a policy in more enlightened way than these so called "traditional" parties.

It's a joke and beyond my comprehension!

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R Cembrano:

16 Oct 2008 12:44:22pm

The so-called intellectuals in our society are bereft of basic moral values. Error or evil has no rights.

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Same-sex relationship laws still lagging: Kirby

Marsden

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