Equal Love

Sir Ian McKellen holds up part of a massive petition in support of same sex marriage before handing it to Greens Senator Sarah Hanson-Young at Melbourne's Equal Love Rally

Marriage is a public commitment between two people to a life-long relationship.

Maintaining that commitment is not always easy, and we need all the help we can get. So we have marriage ceremonies, where couples publicly announce their commitment, and their families and friends gather round them to express their support for them in that commitment.

The commitments made in marriage affirm hope. When we commit to another person, we cannot know all the changes in ourselves, in our partners, and in the world which will come in the years ahead. We cannot know, as a matter of practical reality, what that commitment will mean. And yet we make this commitment, and we are strengthened by the commitment of our partner.

The government establishes criteria for legal recognition of marriages, and this is important for security of the children, for the ownership and division of property, for pension rights, to enable spouses to make medical decisions when their partners are not able to do so, and in a range of other practical ways.

In 2004, just before the Federal election, the Commonwealth Parliament – with the support of the coalition and Labor - altered the definition of marriage in the Marriage Act to make explicit that it only relates to heterosexual relationships.

Since then the Greens have moved for equality in the Marriage Act, but Labor and the Coalition keep voting them down.

According to the famous Libertarian John Stuart Mill

The only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others.

How does this Labor/Liberal definition of marriage as only relating to heterosexual relationships prevent harm to others? In fact, it creates a hierarchy of relationships depending on sexual orientation, and this is undoubtedly harmful to those discriminated against.

Marriage and family take many different forms today. If a husband changes his sex to become a woman, does this mean the marriage which he entered into, and which he and his partner still respect, has no lawful force? Does this mean these two parents should no longer be recognized as such? Where a single parent forms a relationship with a person of the same sex, and they parent the children together, are they not doing work which society should value and praise?

The International Covenant on Civil and Political Rights, to which Australia is a party, commits Australia to the protection and promotion of the right to be free from discrimination based on sexual orientation (art 26).

Human rights are evolving. Fifty years ago there would be little question of a right to same sex marriage. But then, 150 years ago there would be no question of a right for women to vote.

The trend around the world is to recognize same-sex marriage. Several States in the United States now recognize same sex marriage. President Bush’s proposal to alter the US constitution to define marriage as exclusively relating to union between a man and a woman was resoundingly rejected in the Senate - unlike here. Numerous European states, including Spain, Denmark and the Netherlands, recognize same-sex marriage. Canada does, and so does South Africa. Here in Melbourne, thousands attended the same sex rally in May, and marched around the city. We shouldn't have to.

Young people, as they discover their sexual orientation and deal with all the issues that raises, should not be given messages from legislators that one form of sexual orientation is legitimate and another is not. Inevitably, some young people have internalized homophobia so as to believe there is something radically wrong with them. We have lost too many of these young people to suicide, but the fault wasn't theirs. It is ours, for allowing damaging homophobia to fester.

Maintaining long-term relationships – whether heterosexual or same sex - is good for our society. The law should recognize what the community already does.

External links

• Equal Love
• It's Time to Say "I Do", Mr Rudd
• Equal Marriage Bill
• Second Reading Speech, Marriage Equality Bill

What is our "own country"? The Nystrom Case

It was my first inkling that the election of the Rudd government might not signal any serious change in the attitude to human rights.

Stefan Nystrom was born on 31 December 1973 in Sweden. His parents lived in Australia for several years before he was born, and were permanent residents. His older sister was born here. Stefan’s mother (who had been born in Finland and moved to Sweden as an adult) took a brief trip back to Sweden when she was pregnant to visit family members, and then realized it would not be safe for medical reasons to make the return journey. She remained in Sweden for the birth.

When he was 25 days old, his mother left with him to return to Australia, arriving here on 27^th January. Since then, Stefan Nystrom has never known any other country. His parents separated and divorced when he was five and there has been almost no contact with the Swedish relatives, whose names he did not know. He does not speak Swedish.

Stefan’s parents did not apply for citizenship for him, although he would readily have qualified. He did not know he was not a citizen and had never had occasion to turn his mind to it. He had never sought a passport to travel overseas.

During his childhood he was in trouble, and was a ward of the State for a time. The State did not apply for citizenship for him.

As an adult he was in more trouble, and has served a number of prison terms. After he had been out of trouble for some time, in 2004 the Immigration Minister cancelled his visa, on the grounds that he failed to pass the character test.

Stefan appealed the decision all the way to the Full Federal Court which overturned the decision. The majority held:

He is only an 'alien' by the barest of threads. However, if the decision under challenge here stands he will be deported to Sweden and permanently banished from Australia. That result causes us a … sense of disquiet … [Mr Nystrom] has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities.[1]

The Minister then appealed to the High Court. On technical grounds, the High Court upheld the appeal, and the way was open for Stefan to be deported.

His last avenue of appeal gone, Stefan was taken into custody (it is not clear why – he had been out of trouble for some time and had properly attended whenever required) and held in the Maribyrnong Immigration Detention Centre for some months until he was deported on 29th December, arriving in Sweden on 31st December – his 33rd birthday.

Mr Nystrom’s elderly mother was dependent on Stefan. She has little money and cannot afford to visit him in Sweden. In a gratuitously cruel twist, she was not permitted to see her son off, possibly for the last time, from Melbourne Airport. Nor were other family members.

No one met Mr Nystrom in Sweden. He had no resources, no Swedish language, and no understanding of the culture. Australian authorities did nothing to organize accommodation, food, money or language training, or any emotional help for a person separated from his family.

Having been deported on character grounds, the law will not permit Mr Nystrom to return to Australia – even to visit his mother and sister.

Article 12(4) of the International Covenant on Civil and Political Rights (to which Australia is a signatory) provides that:

No one shall be arbitrarily deprived of the right to enter his own country.

But what is one’s “own country”? Citizenship gives one guide, but it is not the only one. For all practical purposes, Mr Nystrom was entirely a product of Australia. He had lived in the country for all but the first 27 days of his life, had been educated here, and had even been under the care and protection of the State for some of his childhood. All his bonds are with this country. He would have been entitled to citizenship from a very early age had his parents known to apply for it.

Australia’s decision to treat Mr Nystrom in this way, after he had already served terms of imprisonment for his crimes, is harsh and arbitrary. It also represents a failure to take responsibility for problems we have created. To push our problems onto Sweden (or any other country) creates poor international relations.

I led the team acting for Stefan and his family in applying to the United Nations Human Rights Committee for redress. Decisions of the Human Rights Committee are not binding, but governments are to respect them as part of our treaty obligations. You can only apply to the Human Rights Committee if you have exhausted all domestic appeals.

We made our submission - careful and detailed - before the 2007 election. In May 2008, six months after the change of government, and only a few months after the apology and shortly after the 2020 summit, Australia replied. Would they signal a change in policy, and a reversal of the Howard government decision?

The reply had been approved at a ministerial level, but its heartlessness showed no change of attitude with the change of government. None of the substantive human rights issues were dealt with. It was a tawdry border protection narrative which trailed our poor human rights credentials before the world. It was a bitter disappointment.

It remains to be seen how the Human Rights Committee will resolve the complaint.

Mr Nystrom is not the only person being treated in this way by the Australian government at present. With scarcely credible cruelty, the Australian authorities are dumping people it does not want in other countries and washing their hands of responsibility. Hopefully the Human Rights Committee will provide a human rights framework for more humane consideration of these cases in future.

The Australian government's treatment of Stefan Nystrom has been cruel and unprincipled. Given the professed support for human rights by the Rudd government before its election, it has also been hypocritical.

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[1] Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 (1 July 2005) [1] (Moore and Gyles JJ).