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My op-ed in this week’s Star Observer:
Criminal law processes have been criticised internationally because they provide a disincentive to knowing your HIV status – instead of protecting people from HIV, they actually have a negative impact on prevention. In September, UNAIDS recommended that criminal prosecutions should only occur where HIV transmission actually occurs and where it can be shown that the accused intended to transmit HIV. The report also condemned the use of laws that criminalise non-disclosure of HIV status, such as those in NSW and Tasmania, and HIV-specific criminal laws, such as Victoria’s section 19A.
Read the full article on the Star Observer website.
The High Court decision is in, and the Marriage Equality (Same Sex) Act 2013 (ACT) is no more. Five days after the first same-sex marriages were celebrated in Canberra, those marriages are now void and the law is no more.
Naturally, a lot of people are disappointed that what seemed like an achievable path to same-sex marriage has now been shut off. But as I blogged earlier today, the notion of pursuing separate marriage laws for each State or Territory seems woefully misguided, especially as what that would achieve might well be the enactment of some sort of same-sex marriage framework, but it certainly isn’t the ‘marriage equality’ it’s been sold to us as.
Instead of lamenting the Court’s entirely sensible and reasoned (and unanimous) decision to invalidate the ACT law, we should thank George Brandis and the Commonwealth government for their efforts in illuminating the pathway to genuine marriage equality – an amendment to the Marriage Act 1961 (Cth) that reforms the institution of marriage to be genuinely inclusive of all people – not just heterosexual and homosexual couples, but bi, trans* and intersex people too.
Brandis could have just let the ACT law pass quietly and, barring some other party having standing to challenge it, the States and Territories could have each passed their own little same-sex marriage laws, people would have gotten frocked up in rainbow bow ties and mums would cry – and the hets-only federal law would have continued as the gold standard with no further political agitation for change. Real marriage under the Marriage Act, marriage-lite on a state-by-state basis. Instead, the momentum for change will just grow, and now there is only one way forward: the federal law must be amended.
Thanks, George. You just painted a big rainbow target on your own forehead.
Some more observations on the judgment over the fold.
Australia saw its first same-sex marriages over the weekend, in Canberra. The predictable 12:01 a.m. ceremonies, the newspaper pictures of beaming gay couples in matching outfits, the rainbow flags and lofty statements about our rights, all overshadowed by the High Court case that threatens to undo it all after a few days.
For five days, the ACT has been the first jurisdiction in Australia to legislate for same-sex marriage, and later today we’ll know if that law has withstood a constitutional challenge from the federal government. My guess is that the court will strike the ACT marriage law down, and with it those 12:01 am marriages.
As much as that decision will dash the hopes of many supporters of marriage equality in Australia, I think it’s the right thing for the Court to do. I have been following the case with interest: I even watched some of the online video of the oral arguments. To my only partially-trained eyes, the Commonwealth’s argument seems pretty sound: the constitutional framers’ intention was clearly to have a single system of marriage in Australia (indeed, they explicitly argued against the patchwork approach of the US and other countries) and the passage of the Marriage Act in the early 1960s was the, albeit delayed, achievement of that goal. The Commonwealth has exercised its power under the Constitution to define the boundary between people who are ‘married’ and those who are ‘unmarried’ at law, and that means any state or territory law that tries to redefine that boundary must be invalid.
The ACT’s argument is that, because the Commonwealth Act only regulates opposite-sex marriages, that leaves an open space for States and Territories to regulate same-sex marriage. But both Acts are trying to achieve the same legislative end – determine who can claim the status of marriage, and I don’t see how the High Court can realistically leave the ACT law in place. We’ll know in a few hours.
In any case, I don’t think the approach of pursuing marriage reform on a state-by-state basis is right. If we are pushing for marriage equality, that can only mean reforming the existing institution of marriage – not the creation of a set of parallel institutions that all claim the status of ‘marriage’. For marriage equality to be real, we need one institution that treats all relationships the same way, not a series of separate-but-equal attempts to circumvent the Commonwealth Parliament’s failure to legislate.
Australians in de facto relationships, which in every jurisdiction includes same-sex couples, already enjoy nearly identical rights to those who are married, so the idea that we can achieve ‘marriage equality’ by setting up nine different systems of marriage across Australia seems hopelessly misguided. It’s hard for me to see how this is a step forward.
Unlike our cousins in the US, Australia’s push for marriage equality is largely symbolic. We don’t depend on the status if marriage for practical rights, because we already have de facto relationship rights that are virtually indistinguishable from those enjoyed by married people. That doesn’t mean we shouldn’t continue pushing for the Marriage Act to be reformed – we should, and it’s hard to find anyone who doesn’t believe that, eventually, reform will come. But the push for state and territory based same-sex marriage laws turns marriage in Australia into a Rube Goldberg contraption of interacting and conflicting provisions that change when you cross from one state to another: that may be fine for people who want to wear matching suits and pledge their commitment at 12:01 am ceremonies in chilly Canberra (and who can blame them?) but it’s not ‘marriage equality’.
I fully expect that, later today, the High Court will strike down the ACT marriage law, and Canberra’s five days of rainbow weddings will be over. When that happens, we should not see it as a step backwards for marriage equality, but a step towards it. Because it’s only by changing the Commonwealth Marriage Act that we can achieve the equality we say we want.
Lots of discussion over the last couple of days about the recently released annual surveillance report for HIV, which shows a big jump in the number of HIV notifications for the last year, especially in NSW. Obviously any rise in HIV is concerning and I’ll leave it to the experts to debate the likely causes of that rise, but as I have previously argued, a seemingly important measure of the infection rate remains unreported.
Three years ago, I argued that HIV infections aren’t going up, they’re going down – if you consider that the number of new infections must be a function of the number of people living with HIV, the picture over the last few years is starkly different. I’ve updated the data from that post in the chart below (click it for a larger version):
The pink line on the chart shows the number of new diagnoses per 100 people living with HIV, based on the Kirby Institute data. There has been a noticeable increase in that measure over the last year but this follows a long period of decline from a high in 2002 of 6.29 to a low in 2011 of 4.60 (incidence per 100 PLHIV).
My argument here is that, whenever an HIV infection occurs, one HIV-positive person is the source of that infection, and as the number of people living in the community with HIV rises, some rise in the total number of new infections is inevitable. The picture over the last few years shows that rise has been lower than would be predicted by the increase in the HIV-positive population alone, which I think is a strong sign that HIV prevention efforts have been working.
The increase in the last 12 months – from 4.60 to 4.87 (incidence per 100 PLHIV) – represents a 6 percent rise in infections, and while that’s lower than the 10 percent rise in the raw numbers, it’s definitely worrying. But it’s a single data point and we won’t know for a year or two if that is the beginning of a sustained rise or just a blip in the trend.
It’s understandable that researchers, government and the media are troubled by the annual jump in new infections (and it has been an annual event for many years now) but, as long as positive people are remaining healthy and sexually active, at least part of that rise is directly explained by the increase in the population of people who are available to be the source of new infections.
The usual caveats apply: I am neither an epidemiologist nor a statistician, and the only data I have to work with is that published in the surveillance reports. Happy to be corrected on any of the data or to be (politely) disagreed with as to my interpretation of it.
Constitutional law expert George Williams discusses the Senate election result and the need for reform to the electoral system so the result better reflects the voters’ intentions.
Bill Shorten, Leader of the Opposition? Really, Labor, this is your response to the election loss?
This may come as a surprise, but if you’ve been banging your head against a brick wall for six* years and your head hurts, it’s almost certainly not because you haven’t been doing it hard enough. If you pick Shorten as the next Labor leader (or Albanese, or Bowen, or Swan, or Burke…) you might as well hang out a sign saying “we are useless and we will never change.”
You’ve had a bit of a loss. As unpleasant as that might me, it’s also a rare opportunity to try something new, see how it goes. Pick a leader who represents generational change, give them the authority to reform the party, and craft a new story about who you are and what you stand for. Shorten is up to his neck in the leadership dramas of the last few years, and no-one will take you seriously with him at the helm.
There’s plenty of alternatives. Plibersek would be brilliant, then there’s Dreyfus, Butler and Clare, although the last two don’t have Cabinet experience. Any of them would come to the leadership with (relatively) clean hands.
Get your shit together, Labor. Your primary vote is so low now it consists almost entirely of people who are so rusted-on they wouldn’t vote for another party if their lives depended on it. Stop bashing the Greens and focus on your real enemy. Find a leader who will reconnect with the base, emphasise your considerable strengths, and break away from the back-room squabbles of the past.
In other words, not fucking Shorten.
* actually, 17 years
They seem so bright, youthful and groovy, with progressive policies like legalising same-sex marriage and marijuana, so it’s no wonder lots of people, especially gay men and lesbians, have decided to give the Australian Sex Party their vote this year. But if you’re one of those who did, you might be a bit surprised to know where your vote ended up.
In three states, above-the-line votes from the Sex Party were instrumental in getting candidates from right-wing microparties elected: the Australian Motoring Enthusiast Party in Victoria, the Liberal Democratic Party in NSW, and the Australian Sports Party in WA were the ultimate recipients of the Sex Party’s votes in those states.
Elsewhere, votes for the Sex Party ultimately ended up with the Liberal Party (in Tasmania), the ALP (in NT), Nick Xenophon (in SA) and the Greens (in SA, Queensland and the ACT). Sex Party votes did help reelect SA Greens Senator Sarah Hanson Young.
Many of the people I have met who supported the Sex Party would consider themselves vaguely left-wing, progressive voters. Most of those would be surprised to discover where their Senate vote ended up.
The full details of how Sex Party Senate votes were distributed in each state are below (these numbers are progressive, as the count is still proceeding, and only include above-the-line votes).
I doubt many of those who voted for the Sex Party would be happy to know their vote ended up electing a gun nut (in NSW), a car nut (in Vic) or sports nut (nobody seems to know what the Australian Sports Party’s policies are, except they seem to like sport) in WA. The fact that they did shows the urgent need for reform of the above-the-line voting system in the Senate.
(States are listed below in order of the size of the Sex Party vote)
There were 43,744 votes for the Sex Party in Victoria. Every one of those votes went to their 42nd preference, the Australian Motoring Enthusiast Party, enough to get Ricky Muir elected to the Senate for the next six years.
There were 32,599 votes for the Sex Party in NSW. All but 118 of those votes went to their 18th preference, the gun-toting Liberal Democrats, pushing David Leyonhjelm over the line and into the upper house until at least mid-2020. The remaining 188 votes went to the Shooters and Fishers Party, via preference 48.
There were 20,592 votes for the Sex Party in the Sunshine State. These were distributed first to the HEMP Party via preference 5, and then to the Greens via preference 42.
There were 12,376 votes for the Sex Party in WA. Of those 12,338 went to their 11th preference, the Australian Sports Party, pushing Wayne Dropulich across the line and onto the comfy red leather benches for the next six years. The remaining 38 votes went to the Greens.
There were 7610 votes for the Sex Party in SA. These were initially distributed to the No Carbon Tax Climate Sceptics (preference 11), then to the Greens (preference 41), where they helped reelect Sarah Hanson-Young, before coming to rest with Nick Xenophon (preference 45).
There were 5966 votes for the Sex Party in the traditionally porno-loving national capital. These were distributed first to the Bullet Train For Australia Party (preference 9) and then to Simon Sheikh of the Greens (preference 15).
There were 4112 votes for the Sex Party. These went to the Liberal Democratic Party (preference 21) and then on to the Liberal Party (preference 34).
There were 1410 votes for the Sex Party in the Territory. These went briefly to the Shooters and Fishers (preference 3) before helping elect Nova Peris for the ALP (preference 12).
Source: ABC elections website, accessed 9 September 2013.
Image: Fiona Patten (CC-licensed image from Wikimedia Commons)
Welcome to democracy, Australian style: you go into a polling booth and you get the choice of an impossible 4-dimensional Sudoku puzzle, or just tick a box labelled ‘cars’, ‘sport’ or ‘legalize weed’ and away you go. The end result? Well, you’re standing in it.
Show that you’re part of the solution, not the problem with this highly wearable garment.