It
was not the wedding
Peter Furness’ mother
might have hoped for.
There was no family
gathering, no cake,
certainly no church and,
most significantly, no
her. Peter’s father was
not well enough to
travel halfway around
the world from Sydney to
Vancouver for the
ceremony. So instead,
37-year-old Furness and
his long-time partner,
39-year-old Theo
Phillip, married with
just three friends
present, a long, long
way from home. Sure, it
was an intimate, joyful
occasion, says Furness.
“It’s just a pity we
couldn’t have done it in
our own country
surrounded by the people
we love.”
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Theo Phillip and
Peter Furness
Photo: Richard Birch |
It must have seemed
deeply ironic that, only
one month later, Furness
and his new husband
attended the wedding of
Furness’ brother in
Foster, NSW. This time,
his whole family was
able to join in the
celebrations.
“I think my parents felt
a little guilty that
they were at my
brother’s
wedding and, only weeks
before, I had married
but they hadn’t been
able to attend.” In
Australia, marriage
between same-sex couples
is not
legal. Bucking
the growing
international trend
towards recognising
civil
unions between gay
couples, the Howard
government is steadfast
in its trenchant
opposition to legalising
gay marriage.
“We are not
anti-homosexual people
or gay and lesbian
people; it is not
a question of
discriminating against
them,” John Howard says.
“It is a
question of
preserving as an
institution in our
society, marriage, as
having a special
character,” he explained
after his government
invoked
rarely used
constitutional powers to
quash a new ACT law
allowing civil
unions
between same-sex
couples. This has
happened just once
before
in Australia’s history,
when the federal
parliament in 1997
blocked the
world’s
first euthanasia
legislation in the
Northern Territory after
a
conscience vote.
While some might regard
the April wedding in
Canada of Furness and
Phillip as little more
than political grandstanding, for an
increasing number of gay
couples marriage is the
natural next step in a
serious relationship.
Just as with
heterosexual couples.
“We didn’t want to have
a commitment ceremony –
something many
Australian gay couples
do in lieu of a
state-sanctioned wedding
– we wanted the real
thing,” Furness says.
These two are not the
odd men out on this
issue. According to a
survey conducted by the
Victorian Gay and
Lesbian Rights Lobby (VGLRL)
last year, there has
been a very definite
pro-marriage shift in
attitudes among same-sex
couples. Almost twice as
many gays and lesbians
now favour marriage
compared with five years
ago.
The trend is especially
marked in younger
same-sex couples. The
doubling of same-sex
couples counted in the
last census from 10,000
in 1996 to 20,000 in
2001 also suggests an
increase in those
willing to identify as
partners in a same-sex
relationship. According
to the Australian Bureau
of Statistics, there are
now 11,000 male same-sex
couples and 9000 female
same-sex couples willing
to be identified in
Australia.
So are gays and lesbians
becoming more socially
conservative? Or
perhaps, the survey’s
authors speculate, gays
and lesbians simply are
now less likely to be
satisfied with the de
facto or domestic
partnership recognition
most states afford them.
They have won some legal
rights and now they want
more.
Overseas,
legal recognition of
same-sex relationships
has
occurred predominantly
through registration,
which typically
means civil unions. This
has been introduced in
Denmark,
Norway, some states of
the US, Germany,
Argentina,
New Zealand, the UK and
Switzerland. And
same-sex marriage
is now legal in the
Netherlands, Belgium,
Spain and Canada. In
Australia, despite the
efforts of the federal
government, there
has been some reform,
too. NSW, Victoria,
Queensland,
Western Australia,
Tasmania and the
Australian Capital
Territory
legally recognise
same-sex couples in
matters of
superannuation, hospital
and coronial rights,
property settlement,
taxation, compensation
payments and wills and
estates. But this
applies only to these
areas affected by state
laws. Federal law still
applies in many
instances, including
marriage.
Although it is
impossible to know how
many gay Australian
couples have already
married overseas, it
seems likely that
gay-marriage tourism
will only increase given
the federal government’s
stance. Canada is the
destination of choice
because there are no
residency requirements:
anyone can simply turn
up and apply for a
marriage licence, pay
the $C100 ($120) and get
hitched. The
sex of your intended is
not relevant.
Since the UK’s Civil
Partnership Act came
into effect last
December, there have
been 50 ceremonies
performed or booked at
British Consular offices
around Australia. One of
the first was in
Brisbane on May 5
between 49-year-old
Sharon Dane and her
partner, 48-year-old
Elaine Crump, both
British citizens who
have lived in Australia
for most of their lives.
Dane says the idea of
formalising their
relationship was her
mother’s.
“While we were up on the
26th floor of the
consulate, our
relationship was
validated, but once we
came downstairs, our
union wasn’t
recognised,” Dane says.
The initial excitement
the couple felt at being
able to legalise their
relationship has
evaporated, she says,
especially since the ACT
law was overturned.
“Australia seems to be
emphasising that our
union doesn’t count,
that somehow there is
something not quite
right about our
relationship.”
Sydney’s British
Consul-General Tim
Holmes, who presided
over the first civil
partnership ceremony in
Australia in February
and has since conducted
27 others, with five
more couples scheduled
in the next fortnight,
says the British are
happy to be able to
formally register the
rights of same-sex
couples in Australia.
“While at present this
registration is only
recognised in the UK, we
hope that the Australian
authorities will be able
to adopt similar
legislation in the
future,” Holmes says.
“This is a big step
forward in the battle
for equality and
recognition of same-sex
partnerships.”
But these foreign-soil
weddings have no legal
standing here. In 2004,
the federal government
amended national
marriage laws to ensure
that only men and women
could marry. And the law
was tightened to
invalidate overseas
same-sex marriages. “The
recent legislation to
proscribe same-sex
marriage is one of the
most shameful pieces of
legislation that has
ever been passed by the
Australian parliament,”
commented Alastair
Nicholson, the then
recently retired Chief
Justice of the
Australian Family Court.
The timing was no
coincidence, says Jason
McCheyne. He and partner
Adrian Tuazon had won
the right to have their
case for legal
validation of their
overseas marriage heard
by the Family Court of
Australia. One week
before their hearing was
due to begin, the
amendments were rushed
through parliament. As
McCheyne says now: “With
one stroke of the pen,
our case was gone and
our hopes were dashed.”
The couple received a
refund in the mail from
the Family Court. The
landmark nature of their
case had prompted the
judge to ask the federal
government and the Human
Rights and Equal
Opportunity Commission
to intervene with
advice.
“We felt, and still do
feel, degraded and
victimised in our own
country,” McCheyne says.
“You can’t legally
denigrate women any more
or Aborigines which is a
good thing but it is
still fine to say what
you like about gay and
lesbians.”
As it happens, McCheyne
is a marriage celebrant
and says he conducts at
least one gay marriage a
month. “Obviously these
ceremonies have no legal
standing in Australia
but it indicates the
desire by many same-sex
couples to have their
relationships validated
in this way, just like
everyone else.”
While the Australian
Chamber of Commerce and
Industry would not
comment on whether
employers should
recognise same-sex
relationships when
dealing with workplace
issues, some are already
doing so. Qantas
recently agreed to
update a staff member’s
marital status on his
employee records after
he and his partner
married in Canada.
Initially, the airline
refused the request on
the basis that
Australian law does not
recognise same-sex
marriage but backed down
after the employee
obtained legal advice
from Alastair Nicholson,
which endorsed the
validity of the
marriage.
Qantas told the
employee: “Qantas will
treat you and your
family in the same
manner as it treats all
married staff.”
Although the timing is
coincidental, a national
inquiry by the Human
Rights and Equal
Opportunity Commission
into discrimination
against same-sex couples
in accessing financial
and work-related
entitlements is bound to
keep the issue alive.
About 300 submissions
have been received and,
not surprisingly, the
issue of same-sex unions
has been raised. Sean
Miller, a 39-year-old
lawyer who has been in
de facto relationship
with his partner for
more than seven years
writes in his
submission:
“We
live together in a house
that we own together and
support each other
financially and
emotionally ... I
believe that
Commonwealth legal
recognition of same-sex
relationships including
families parented by
same-sex partners would
have a positive impact
on my relationships,
family life,
productivity at work and
financial security,
among other areas of my
life. Any federal law
that treats a same-sex
de facto relationship
any differently to an
opposite-sex de facto
relationship (or for
that matter marriage) is
patently discriminatory
and should not be the
case in this day and
age. P.S. I also pay (a
lot of) tax and vote (so
all politicians should
keep that in mind too).
And this from Penelope
Morton:
“As
part of my induction to
the Australian Public
Service, a PSS [Public
Sector Superannuation
Scheme] representative
attended the Department
to give us a
presentation, and then
requested that we
complete the forms on
the spot. Whilst my
colleagues put down
their opposite-sex
partners on the PSS
forms, I sat in
disbelief because I was
unable to put my partner
down as a beneficiary. I
was faced with a
situation where I was
forced to ‘out myself’
on the second day of my
new place of employment,
because this policy
treated my relationship
as different from the
rest of my colleagues’
relationships ... I was
left with no choice but
to contribute to the PSS
and put my mother as my
beneficiary ... I write
to you to highlight the
real consequences that
the Commonwealth’s
active discrimination of
people in same-sex
relationships has had in
my life.”
The inquiry will conduct
an audit of
Commonwealth, state and
territory laws to
develop a full list of
circumstances in which
same-sex couples and
their children may be
denied financial and/or
work-related benefits
and entitlements that
heterosexual couples
enjoy. The laws
considered by the
inquiry will include
those dealing with
workplace leave
entitlements, social
security benefits, tax
concessions, Medicare
and the Pharmaceutical
Benefits Scheme,
superannuation
entitlements, workers’
compensation and
veterans’ pensions and
entitlements.
“The nature of your
relationship should not
determine access to
things such as taxation
benefits, superannuation
and Medicare,” says
HREOC president John von
Doussa. “This is about
just treatment for
people who live together
in a genuine
relationship – gay or
straight. For a war
veteran’s partner to get
a pension when the
veteran dies; for a
partner of a person
killed at work to get
workers’ compensation;
for a couple to claim
tax rebates and the
Medicare safety net.”
The gay and lesbian
community regards the
inquiry as a fortuitous
piece of timing because
it is another way of
keeping the issue on the
public radar.
Gerard Brody, from the
VGLRL, argues that civil
unions are different
from marriage and that
the federal government
was wrong to cite this
as a reason to overturn
the ACT legislation.
“They are completely
different institutions,
with civil unions
increasingly being used
around the world as a
distinct way in which
same-sex relationships
are formally recognised.
There is no legal or
constitutional conflict
between the ACT
legislation and the
federal Marriage Act.”
He believes the federal
government is
deliberately blurring
distinctions between the
two. “People are more
relaxed about the idea
of civil unions than
perhaps same-sex
marriage and the prime
minister knows this and
that is why the two are
being depicted by the
government as one and
the same.”
As Brody sees it, the
one thing worse than a
negative response from
the Australian community
is silence. To this end,
about 100 gay and
lesbian couples are
planning to take part in
a mass “commitment
ceremony” on the steps
of Victoria’s Parliament
House on August 13.
Other ceremonies are
also being planned
around Australia.
“I don’t happen to
believe the prime
minister has read the
public’s mood correctly
on this issue,” says
Brody, “but one thing is
for sure: we have to
keep people thinking and
talking about it.”
