Tagged with law

How HIV criminalisation harms prevention, wrecks lives and doesn’t stop a single infection


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.

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Why marriage equality advocates should thank George Brandis

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.

Continue reading

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Same-sex marriage and the High Court

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.

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The week: 1 June

I don’t remember taking the first pill but I do remember picking them up from the pharmacy. This was in August 1991 – a week or so after I got my HIV diagnosis. The doctor said the treatment options were limited, but there was a drug, called AZT, that would buy me some time. Of course, I’d heard of it.

So with my paperwork in hand I hesitatingly took myself to the pharmacy department at St Vincent’s hospital to pick up my drugs. The pharmacist looked dispassionately at my script, told me to wait, and a short while later handed my the biggest bucket of pills I’d ever seen in my life. It was a month’s supply, but it felt like enough for a year. I stashed the bucket out of sight and, when I got home to my flat in North Bondi, took my first dose. Two decades and sixty-something-thousand tablets later, I’m still here.

This week, I took another step on that path by starting HCV treatment. An extra seven pills a day, a period of abstinence from booze, and a hefty dose of luck, and by Christmas Iris and I hope to be rid of that uninvited hitchhiker for good. As I write this, four days in, I feel rather crap, but glad to have taken this step.

Meanwhile, in the real world, last week’s ugly racist incident at the MCG continues to have repercussions. Eddie McGuire, on Friday night one of the heroes of the story, reverted to form and made a spectacularly ignorant remark on Wednesday morning.

If we were all pulling together to avoid victimising a 13-year-old girl, when the 48-year-old president of Collingwood put his foot in his omnipresent mouth, it presents a unique opportunity for every pundit on the planet to weigh in. McGuire himself didn’t help things with a ham-fisted fauxpology, but the resulting Sturm un Drang did little to inform an understanding of the issue that went any further than ‘you shouldn’t say certain things or people might get upset’. A couple of notable exceptions: Debra Jopson in the (new!) Guardian Australia points out Australia’s ‘covert racism‘ and the six-year-old assault on Indigenous rights that is the Northern Territory Intervention. Helen Razer pointed out that Australia is a racist society and therefore she, he, and we are all racists, and ‘the only way out of this shunless truth is to acknowledge it’.

The Guardian finally launched its much-anticipated Australian edition and, lo, the luvvies were pleased (actually, it’s a welcome addition). It was National Sorry Day again. The British government said it wanted to supply more arms to Syrian rebels, and the Russian government said it would arm the Syrian government, opening the way for a horrible, drawn-out proxy war. An international drugs think-tank warned that the ‘War on Drugs‘ was driving a global hepatitis C epidemic. Cardinal George Pell fronted a Victorian parliamentary inquiry, admitting that the Church covered up paedophile priests, but not taking any responsibility himself. Julia Gillard tweeted in Dothraki. The remains of two Aboriginal men who were unearthed in Tathra in 1961 were reburied in a traditional ceremony. The NSW Court of Appeal ruled that not everyone is male or female.

And finally…

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How to fight an epidemic of bad laws

“The law can seem remote, arcane, the stuff of specialists. But it isn’t, because for those of us who live in democracies, the law begins with us,” says Shereen El-Feki, vice-chair of the Global Commission on HIV and the Law, in this TED talk.

The talk is a very fine summary of the issues around HIV criminalisation and its unintended effects. The comments below the video, alas, show how far we have to go.

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Am I, or aren’t I?

our wedding
Above: An event the Canadian government now says never took place.

I woke up this morning to a text message from my husband suggesting I look at the news on same-sex marriage coming out of Canada. “They are a bit concerning,” he said.

Turns out he might not be my husband after all.

Lawyers representing the Canadian Department of Justice are arguing in a Court case that non-residents who married in Canada since 2004 are not legally married if they could not have been married in their country of residence.

Brent and I were married in British Columbia on 25 September 2004.

The case arises out of a peculiarity that those of us who were married in Canada have been aware of for some time: it’s easy enough to go to Canada and get married, but not so easy, when and if the time comes, to get divorced.

Canada’s divorce law carries a one-year residency requirement: to get divorced in Canada, one or both of the parties must have resided for at least 12 months in the province where the divorce is being sought. If you live outside Canada, you are supposed to get divorced in your home country. But that’s of little use if your home country doesn’t recognise your Canadian marriage. Australia, for example.

The case before the Court concerns an unidentified lesbian couple who married in Canada in 2005 and separated in 2009. One of the two lives in Florida, the other in the UK, both places where same-sex marriage is not explicitly recognised. They are seeking a divorce from the Canadian courts (the news reports don’t mention which court the matter is before) and the Canadian government is the respondent in the case.

A submission from the Department of Justice apparently argues that “in order for a marriage to be legally valid under Canadian law, the parties to the marriage must satisfy both the requirements of the place where the marriage is celebrated … and the requirements of the law of domicile of the couple with regard to their legal capacity to marry one another.”

In other words, if you can’t get married in your home country, you can’t get married in Canada either.

The couple are also seeking $30,000 in compensation from the provincial government, for negligent misrepresentation, in the case that their marriage is found to be invalid, which suggests that the government’s response didn’t entirely come out of the blue for their lawyer, like it did for the rest of us. They are reportedly represented by Martha McCarthy, a Canadian barrister who fought the Supreme Court case that legalised same-sex marriage across Canada in 2005.

McCarthy told the Globe and Mail:

It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity. It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything pro-active about it,” she said. “All the while, they were handing out licences to perform marriages across the country to non-resident people.

The response to the news has been one of shock. US sex advice columnist Dan Savage was married in Vancouver in 2005. He has written an extensive blog post on the developments, and is quoted in the Globe and Mail as saying, “When I got out of bed, I was a married man and as soon as I got on my Twitter feed I realized I had been divorced overnight.”

It’s an odd position for the Canadian government to take. The conservatives are currently in power in Canada, but they have said – and Prime Minister Stephen Harper has reiterated today – that they have no plans to revisit the issue. I share Savage’s hopes that “Hopefully this is just one rogue lawyer or two and not policy of Canada’s Conservative government. If it is Canada’s Conservative government then the issue has definitely been re-opened.”

UPDATE, just before posting: Dan Savage has tweeted that the decision appears to have been reversed. No details yet but I’ll add them as they come in.

UPDATE, 06:30 on 14 January: The Canadian Justice Minister has said all same-sex marriages performed in Canada are legally recognised and the government is working to ensure foreign couples married in Canada have access to divorce.

Edited, 08:54 (added quote from Martha McCarthy)

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