Same-sex marriage … “Equality” and “discrimination” are the themes adopted by most of the professional law bodies around the country … It’s difficult for lawyers to argue against equality … Instead, timid lawyers stay schtum … Portraits in nervousness … Here’s our survey of how the bars and law societies have got to grips with a proposed change to the Marriage Act
After all, survey forms have to be returned to the ABS by October 27 so you’d expect the various lawyer representative and lobby outfits would have arrived at a position by now.
Here we go:
The national umbrella group for the legal profession has made a strong statement in support of marriage equality and for the YES case in the postal survey.
The council’s position was announced on September 7 and follows its original support for marriage equality after the Marriage Act was amended in 2004.
Fi-Fi McLeod, president of the LCA, said the current law relating to marriage is discriminatory.
“Discrimination on arbitrary grounds, including sexual orientation, is contrary to Australia’s human rights obligations.”
The LCA’s position is that marriage equality will not adversely impact freedom of religion.
“Ministers of religion are already permitted to conduct religious marriage ceremonies in accordance with the tenets and doctrines of their religion under s.47 of the Marriage Act.”
The LCA, along with the Law Institute of Victoria and the Queensland Law Society, made a submission to the senate committee considering the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill.
They recommended that marriage celebrants should not be exempted from discrimination laws in the event that they refuse on the ground of “conscientious belief” to solemnise same-sex marriages. In fact, they say that “conscientious belief” should be removed completely from the proposed legislation.
The three law bodies also say that there should not be discrimination exemptions for religious bodies and organisations who fail to provide facilities and goods and services to same-sex couples.
While the LCA is unequivocal, the national bar association has chafed nether-regions because of its straddle on the barbed-wire fence.
“The Australian Bar Association encourages its members, and all eligible Australians, to participate in the Australian Marriage Law Survey.
The Australian Bar Association believes that out of respect for the diversity of views held on this issue, people should be supported to vote in accordance with their own beliefs and values.
The Australian Bar Association encourages all people participating in debate on this issue to do so with respect and courtesy and in accordance with the law.”
One reading of the sub-text of that statement is that a majority of bigwigs sitting around the ABA board table don’t support SSM, but are afraid to say so.
The NSW bar signed up to the joint statement in support of marriage equality laws alongside the Law Society of NSW, and the Australian Medical Association (NSW).
Bar prez Arthur Moses said:
“This is an important issue. The rule of law requires that all Australians are treated equally.”
Unlike the ructions that accompanied the Law Society’s participation in the joint statement, it has been relatively plain sailing for Moses with no public calls for his execution.
Joint statement here
On August 19, as a participant in the joint statement, Law Society president Pauline Wright indicated strong support for the YES case and for marriage equality.
She said the society was committed to “ensuring that all Australians are equal before the law in rights and dignity, regardless of sexual orientation or gender identity”.
She referred to mental health issues and that discrimination on the basis of sexual orientation “is contrary to the ICCPR”.
Soon after, Robin Speed, a solicitor who runs a tax law shop in town and is the founder of the grandly named business lobbing outfit the Rule of Law Institute, demanded that Wright “immediately resign” as president.
He followed this up with the threat of “legal action” unless the Law Society dissociates itself from the statement. Soon after he sought support to requisition an extraordinary general meeting of the society to censure the council for “incorrectly holding out that all solicitors in NSW had united in supporting marriage equality laws”.
“The council of the Law Society of NSW acknowledges that there is a diversity of opinion within the profession and the council on the topic of same-sex marriage, and respects those opinions.”
Speed and others pressed ahead and got sufficient members (a minimum of 250) to requisition an EGM, however the threat of an extraordinary gathering was averted after the “rule of law” man and Wright met to hammer out what smacks of a meaningless “compromise”.
Two “working groups” have been created to advise committees and the council on “safeguards” relating to equality, freedom of speech, religion, assembly, etc. once the SSM marriage legislation is before the parliament.
This will not have an impact on the law society council’s support for same-sex marriage. The joint statement in favour is still there on its website.
See also:
Speed says justice is more important than equality
In 2015 the Victorian Bar stated its support for marriage equality. The then president James Peters said:
“All people are entitled to equality and protection under the law free from discrimination. The principles of equality before the law and the prevention of discrimination underpin modern legislation and core values of our society.”
The current Victorian bar vice-president Matt Collins QC is a strong supporter of the YES case.
In September last year the then president of the LIV, Steven Sapountsis, wrote to the prime minister urging the government to withdraw its plans for a plebiscite and instead introduce legislation to amend the Marriage Act to allow same-sex couples to marry.
He argued that equality before the law was not dependant on public opinion.
However, a week ago when Justinian asked for an update it looked as though the LIV had a dose of the wobbles. The institute’s spokesperson said:
“We don’t have an official stance as the members of the institute are so varied.”
So they did support SSM, but now they’re not saying.
The BAQ has no official position on marriage equality or the postal survey. It even refuses to make a statement saying it has no position.
The bar must have taken to heart an article on the Brisbane Times website from Evangeline Arulrajah, described as a NSW and Victoria barrister, saying that professional associations should not make statements either for or against SSM.
The QLS has decided to ignore Evangeline and is unequivocal in its support for SSM.
It’s formal policy position says:
“Consistent with our longstanding support of equal treatment before the law, the QLS supports marriage equality and believes that all people, regardless of gender or sexual orientation, should have the right to marry …
Preventing same-sex couples from entering into marriage creates a baseless and artificial distinction between these relationships and heterosexual relationships.”
The president of the QLS, Christine Smyth, repeated much the same thing in a media release of August 25, adding that the society has been “deeply considering the current debate and consulted widely in determining what approach to take”.
The SABA has no position on same-sex marriage.
It says it supports the “promotion of gender equity at the bar” and on the recommendation of the Women At The Bar sub-committee it introduced an “unconscious bias CPD program”.
Silks have pledged to recommend “at least one new woman for a research task or junior brief annually, and to actively support a non-discriminatory workplace culture”.
On marriage equality there’s radio silence.
The law society says it does not have a view on the postal survey but it supports same-sex marriage.
It reviewed an earlier resolution from 2013 in support of SSM and decided that its position remains unchanged.
LSSA members were advised on October 5:
On September 29 the WABA issued a statement saying it supports a change to allow same-sex marriage. Once again, it’s a matter of equality before the law. Bar prez Matthew Howard said:
“The present definition of ‘marriage’ in the legislation discriminates unfairly against certain people. The legislation regulates when the law and society will recognise and sanction an act of marriage, but this recognition is currently denied arbitrarily to certain people.”
Of course, there are those opposed to amending the Marriage Act and their views are respected, blah, blah.
The WA solicitors union is on the fence.
It says it is …
“committed to ensuring the legal profession and its members treat all people with respect and dignity regardless of sex or sexuality. We believe equality for LGBTIQ people is fundamental to a free and inclusive community.”
However, it won’t go the extra step and say it supports same-sex marriage and encourages people to cast a YES response in the postal survey.
A spokesperson for the society says it prefers to remain neutral on the marriage issue and it doesn’t have an official position.
We approached the Tasmanian bar to learn its thoughts on same-sex marriage and the postal survey and were told by the receptionist that all the barristers were away today, but to check back tomorrow.
It seems Tasmanian barristers are still out and they have no position on these issues and do not wish to reply.
On the other hand, the LST is bursting with support for an amendment to the Marriage Act and was opposed to the earlier idea of a plebiscite.
The society has formally supported marriage equality since 2015, according to president Rohan Foon. He added, “Equality before the law, including regarding marriage is a rule of law issue” – a statement that obviously had not been sifted and sorted by Robin Speed’s “working group”.
In an earlier announcement the society said it is “opposed to the holding of a plebiscite in respect of marriage equality. Instead, the matter should be dealt with by way of a free vote in the parliament without delay”.
See:
Law Society of Tasmania Opposes Marriage Equality Plebiscite
Law Society of Tasmania supports marriage equality
We are told that it is only a very small bar and it would be better to speak to the Law Society of the NT.
Tass Liveris is the president of the law society in the territory and a barrister at William Forster Chambers, so he speaks for the fused/divided profession.
He says the brave little society supports the statements made by the Law Council of Australia, as set out in its media release, Vote ‘yes’ for marriage equality, ‘yes’ for human rights.
Joanne Dean-Ritchie, the chief executive officer of the 81 member ACT bar, said:
“The ACT Bar Association at this stage does not have an official stance on the proposed amendments [to the Marriage Act].”
This nervy outfit is in hiding and is incapable of a response on the postal survey or proposed amendments to the Marriage Act.
Story research by Sara Tomevska