Nelson out, Turnbull in, but will the coalition oppose same sex reform?

Nelson out, Turnbull in, but will the coalition oppose same sex reform?

Some, like gay activist Rodney Croome have a more pessimistic view than I do about the Opposition views about same sex law reform, but what struck me about recent debate is how in many ways the debate had moved on.


Prior to the election, there John Howard stood, Canute-like, willing to hold back the tide of the view that there should be equal rights, despite the views of some in his Cabinet, including Malcolm Turnbull.

And Now

When Brendan Nelson brought on the leadership vote, one of the key differences he was trying to pitch to his partyroom was that he supported the legislation for same sex reform. Not the economy or how to keep the Government accountable- but about same sex reform!

And then after Malcolm Turnbull was elected, there was this exchange with Kerry O’Brien on the 7:30 Report:

KERRY O’BRIEN: OK. I know that you’re reluctant to get into policy detail at the moment, and you’re not yet backing away from established Coalition policy. But during the last election, when you were struggling to hold your seat of Wentworth against the tide, and when the gay vote was very important to you, you promised to be a crusader for gay rights, delivering equality for same sex couples. You spoke in favour of the Government’s bill on this issue in a speech in June and you had vowed to persuade Shadow Cabinet to support you. As leader, will you undertake to take – will you take shadow cabinet along with you? Will you tell them this is not negotiable for you? You’ll tell your party that?.

MALCOLM TURNBULL: Well, Kerry, the Coalition, you know, the shadow cabinet, the party room is opposed to – or supports ending discrimination against same sex couples.

KERRY O’BRIEN: Do you feel that you have the full support of your party on this?MALCOLM TURNBULL: Absolutely.


MALCOLM TURNBULL: And that issue of ending that sort of legal or financial discrimination is, you know, that is our policy. Now, there are issues about drafting and language, but the principle of ending discrimination is a given. Having said that, it is our policy, as indeed it is the Labor Party’s policy that marriage is a permanent union between a man and a woman. But having said that, that does not mean, and it most certainly does not mean that we should discriminate against relationships between people of the same sex.

We recently had the Opposition, first through Brendan Nelson and George Brandis saying that they supported the Government’s views that there should be no discrimination against same sex couples (except when it comes to marriage – but both major parties are at one there), although there was a suggestion of fiddling about the edges and making provision for interdependent relationships.

The Coalition was accused of shuffling things off and slowing things down by flicking the Bills to Committee in the Senate, but it was surprising to some at least that all of the Committee were of the view that the de facto reforms to the Family Law Act should be enacted with priority, provided that there were minor changes.

One of things I found interesting about that process was the exchange that Senator George Brandis had with the representatives of Womens Legal Services Australia:

Ms Yates—In relation to the Tasmanian and ACT scheme, they do recognise both
interdependent and conjugal relationships. They do that in different ways. Of
course in Tasmania you have the option of registering a caring relationship
or a significant relationship. WLSA’s position is not that interdependent
relationships should be left out in the cold by any means but rather looking at how it can best address the discrimination faced by de facto couples and the discrimination faced by interdependent couples, and perhaps there would be different criteria for recognising those two types of relationships.

Senator BRANDIS—I agree with you. I think that is right, but surely the way to go about this is to identify the important signifiers and treat all relationships that answer to those important signifiers in a nondiscriminatory way. For me, the phrase I have used, which is nothing more than my own, is to identify permanent loving domestic relationships between two people, which are not always sexual relationships, not always heterosexual relationships and not always homosexual relationships but have those three characteristics of being permanent loving domestic relationships. To me those are the core concepts here. If society does decide to deal with some relationships that answer to those characteristics, I cannot see why it is socially just not to deal with others. You are nodding. Does that mean that
you agree with me?

Ms Yates—In the sense that WLSA supports the most flexible
and broadest possible capacity for recognition of different types of
relationships, both conjugal and caring relationships, whether people those
to marry or choose not to marry, and recognises that you need to have legal
remedies available in situations where the breakdown of those relationships
is likely to result in inequity. Again, it comes back to the model
that we use to ensure access to justice in each of those circumstances and whether we use one overarching category or different categories. The states, such as the
ACT and Tasmania, have chosen to differentiate between those categories in
some respects, between caring and other relationships. Broadly WLSA
will support access to justice and most flexible recognition schemes for all
types of relationships. In this case we have focussed our submissions on
conjugal de facto relationships, both same sex and opposite sex,
simply because that is where our expertise lies. In our experience the
greatest need has come from those groups, but that would not stop us, of
course, from supporting recognition of interdependent relationships.

Senator BRANDIS—We are very like minded. We were reminded yesterday by one of our witnesses of Aristotle’s definition of ‘justice’ as being to treat like cases
alike and different cases differently. If we were satisfied that the relevant
core concept here was the existence of a permanent loving domestic
relationship, albeit that such relationships might have a variety of other different features, but if that is the core concept then such relationships should be treated without discrimination, should they not, under my Aristotelian view?

Ms Rohr—It would be easier to answer that question on behalf of Women’s
Legal Services Australia if we were aware of any such need in the community.
We did seek feedback across our national network on whether there had been
any inquiries from clients for whom this interdependency category to which you
refer would have been of assistance in accessing justice, and in fact we did
not receive any responses that would indicate that that was the case. Apart
from the hypothetical example of the spinster sisters, which I know gets
passed around every time this issue is discussed, we are not actually aware
of any cases in which it would have made a difference.

Senator BRANDIS—You have made it clear. That is a piece of empirical evidence, or non-evidence as it were, that has some relevance.

Ms Rohr—The fact that those cases are not known means that no feedback has been sought from those cases. It may be the case that the spinster sisters that are often used as an example would be horrified to know that their social security payments could be impacted upon by being considered interdependent.

Senator BRANDIS—We are conscious that this cuts both ways and there are ways to deal with that.

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Family Law Section Law Council of Australia Award
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Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board