Issue 124: December 2017
Advancing LGBTIQ rights through pro bono: a chronology
With same-sex marriage being legalised in Australia last week on 8 December 2017, now is a great time to look back at how the pro bono legal work of Australian lawyers has played a vital role in helping to achieve this significant social change.
Lawyers have sought equality for members of the LGBTIQ community across a broad range of issues for a very long time. Much of it has been undertaken in support of the same-sex marriage campaign that began in 2004. Three key events happened that year:
- The Howard government amended the Marriage Act to define marriage as a “union of a man and a woman to the exclusion of all others”;
- The first private members bill seeking to legalise same-sex marriage was introduced into Parliament; and,
- The lobby group Australian Marriage Equality was formed.
Many would say the modern battle began that year.
Pro bono in this space provides a great illustration of the broad spectrum of activities that lawyers and law firms can engage in to strengthen civil society by pursuing equality for a disadvantaged group of people. Enhancing justice for the vulnerable has a positive transformative effect on society as a whole.
It’s easy to forget that in 2013 there was law passed legitimising same-sex marriage in Australia in the ACT, only for it to be set aside on a High Court challenge by the Commonwealth. The Human Rights Law Centre together with law firm Allens with Jeremy Kirk SC and Perry Herzfeld assisted Australian Marriage Equality to intervene in these proceedings, in support of the ACT law and to argue that the federal parliament had the constitutional power to legislate for marriage equality.
Pro bono legal work in the LGBTIQ space has involved more than legal representation in the challenges to the High Court of Australia.
It has included advice and assistance on contract, employment law, governance, intellectual property, media, constitutional and electoral matters. It has meant making law reform submissions and helping to support the establishment of various key organisations such as Australians for Equality (the YES campaign), the LGBTI Community Legal Service in Queensland, Pride and Diversity and Out for Australia. Allens, Ashurst, Barrister Tony Lang, Clayton Utz, Dentons, Gilbert + Tobin, Herbert Smith Freehills, King & Wood Mallesons and Minter Ellison have all provided pro bono legal services to the YES campaign.
And law firms have gone beyond this. They have joined with corporations in full-page newspaper advertisements supporting same-sex marriage and made public statements openly affirming their support for SSM.
*
Here is a brief chronology highlighting some key pro bono legal work done on LGBTIQ rights:
STORIES IN THIS ISSUE:
Subscribe to
AUSTRALIAN PRO BONO NEWS
2005
Following its successful petition to the UN Human Rights Committee regarding the denial of a war widow’s pension to a same-sex partner in Young v Australia (941/2000), Gilbert + Tobin acts for Jiro Takamisawa who was also denied a war widow’s pension. In July 2006 Mr Takamisawa tells his story to the Australian Human Rights Commission as part of its inquiry into same-sex discrimination, Same-Sex Same Entitlements.
2010
DECEMBER. The LGBTI Legal Service Inc is launched in Queensland with corporate support provided by Allens, Russo Lawyers, McCullough Robertson and Clayton Utz.
2011
OCTOBER. Two trans men assisted by Herbert Smith Freehills successfully challenge WA birth certificate laws. The High Court rules that the men are not required to undergo surgery on their reproductive organs in order to change the gender marker on their birth certificates.
AB v State Of Western Australia & Anor, Ah V State Of Western Australia & Anor
[2011] HCA 42
2012
APRIL. Gilbert + Tobin files a petition to the UN Human Rights Committee challenging the non-recognition of overseas same-sex marriages in Australia for the purposes of divorce.
In C v Australia (2216/2012), the UN Human Rights Committee finds Australia in breach its obligations under art 26 (equality before the law) of the International Covenant on Civil and Political Rights.
OCTOBER. The Human Rights Law Centre instructs silk Bret Walker SC, Chris Young and Perry Herzfeld to prepare written legal opinions on the constitutional validity of the two proposed state-based marriage laws – one in Tasmania and one in NSW.
2013
DECEMBER. The Human Rights Law Centre goes on to brief Perry Herzfeld and Jeremy Kirk SC with assistance from Allens, to intervene on behalf of Australian Marriage Equality in the Commonwealth’s legal challenge to the ACT’s marriage law (differently drafted to the NSW and Tasmanian bills). AME was the only party to argue that it was necessary for the Court to answer the question of whether the federal parliament had power under the constitution to legislate for same-sex marriage.
While the High Court found the ACT law to be invalid, the silver lining was the definitive determination of the parliament’s authority to legislate – removing any legal barriers to achieving marriage equality.
2014
APRIL. The Victorian Court of Appeal rules in favour of a same-sex attracted youth support group (Cobaw) which brought a discrimination claim against Christian Youth Camps for cancelling their booking after learning the group aimed to support same-sex attraction. Cobaw was assisted pro bono by King & Wood Mallesons and a number of talented counsel led by Debbie Mortimer SC (now Justice Mortimer) and later Peter Hanks QC.
Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors
[2014] VSCA 75
DLA Piper assists Norrie May Welby, an androgynous transgender person, all the way to the High Court in a landmark case that recognised sex outside the male and female binary. The Human Rights Law Centre and Allens provides pro bono legal assistance to A Gender Agenda, an organisation representing the gender diverse and intersex community in Australia, to intervene in support of Norrie in the High Court proceeding.
NSW Registrar of Births, Deaths and Marriages v Norrie
[2014] HCA 11
JUNE. Justice Connect launches ‘stage 2 access’ to assist young transgender people applying to the Family Court for authorisation of cross-sex hormone treatment. A number of law firms such as Lander & Rogers, Robertson Gill, Gadens and Nicholls Family Lawyers participate in the program.
DECEMBER. Victoria Legal Aid assists 17-year-old Isaac to gain access to stage 2 hormone treatment through the Family Court without parental consent.
The decision clarifies that there is an avenue available to a child, who is not supported by his or her parents, to be declared competent to make decisions about their own treatment regarding their transition.
Re Isaac
[2014] FamCA 1134
2015
MARCH. Out For Australia – a charity that provides visible role models, mentors and support to aspiring LGBTIQ professionals in the early stages of their career – is officially launched. Baker & McKenzie is the Principal Partner of Out for Australia, and Clayton Utz is a Major Partner.
MAY. Allens openly affirms its support for marriage equality in Australia and Gilbert + Tobin joins leading Australian companies in publicly stating its support for marriage equality in a full-page ad in The Australian.
SEPTEMBER. After the idea of a referendum or plebiscite is first announced, the Human Rights Law Centre instructs Bret Walker SC and Perry Herzfeld to prepare an authoritative legal opinion that confirms that a referendum is not required in order to legislate for marriage equality. The Joint Opinion also finds that there are no legal restrictions or constraints on the question to be asked in the plebiscite.
2015/2016. Allens, the Human Rights Law Centre, Queensland AIDS Council, Queensland Association of Independent Legal Services, Caxton Legal Centre and Townsville Community Legal Service and the LGBTI Legal Service Inc (Queensland) prepare a major research report and a number of submissions on the expunging of criminal convictions for historical homosexual offences.
2016
LGBTI Legal Service establishes a pro bono legal network of law firms who are willing to work with the service to develop reform discussion papers and parliamentary submissions, undertake professional review of submissions or papers and legal information resources written and developed by the Legal Service. Firms include Allens, Clayton Utz, Russo lawyers and McCullough Robertson.
MARCH. Ten law firms (Allens, Ashurst, Baker McKenzie, Corrs Chambers Westgarth, Dentons, Dowson Turco Lawyers, Gilbert + Tobin, Henry Davis York, Herbert Smith Freehills, K&L Gates, Lander & Rogers, Slater & Gordon and Squire Patton Boggs) openly and publicly affirm Australian Marriage Equality’s open letter to Prime Minister Malcolm Turnbull, advocating against the plebiscite on anti-discrimination and human rights grounds.
MID-YEAR. Hall & Wilcox provide pro bono support for the Victoria Pride Centre, assisting with organisation structuring, fund raising and site selection and procurement.
SEPTEMBER. Jean Forster & Associates together with Kris Walker QC and Therese McCarthy of counsel provide pro bono assistance to a lesbian couple to challenge the decision of the Victorian Registrar of Births Deaths & Marriages to issue a birth certificate with the two women listed as ‘mother’ and ‘parent’ rather than both women described as ‘mother’. This challenge is unsuccessful.
Arc-Dekker v Registrar of Births, Deaths and Marriages (Review and Regulation)
[2016] VCAT 1529
2017
AUGUST. Marque Lawyers launches the Two People campaign in support of marriage equality in Australia, “a movement of the Australian legal community with the sole purpose of bringing about marriage equality in Australia.” By September 2017, 1708 members of the Australian legal community have pledged with the campaign.
Two challenges to the same-sex marriage plebiscite are run in the High Court on a pro bono basis. Wilkie & Ors v. The Commonwealth of Australia & Ors is brought by by PIAC and Australian Marriage Equality Ltd & Anor v. Minister for Finance Mathias Cormann & Anor is run by by the Human Rights Law Centre. Both are run pro bono with legal teams led by eminent silks Ron Merkel QC and Kate Richardson SC.
NOVEMBER.
The landmark decision of Re Kelvin is handed down by the Full Court of the Family Court and transgender young people no longer need to apply to the Family Court for authorisation of cross-sex hormone treatment.
Kelvin’s father is represented pro bono by the Inner City Legal Centre. The Human Rights Law Centre and Lander & Rogers assist community organisation A Gender Agenda to intervene in the proceeding in support of Kelvin and to represent the broader interests of trans and gender diverse young people.
*
The work doesn’t end there. Lawyers and law firms are continuing their pro bono efforts to advance LGBTIQ rights in Australia.
Allens, Ashurst, Baker McKenzie, Clayton Utz, Colin Biggers & Paisley, Corrs Chambers Westgarth, Dentons, Gilbert + Tobin, Henry Davis York, Herbert Smith Freehills, King & Wood Mallesons, Maddocks, Minter Ellison, Norton Rose Fulbright, Pinsent Masons and other law firms are members of Pride and Diversity, a not-for-profit organisation that assists Australian employers with LGBTIQ inclusion through a number of comprehensive programs and initiatives.
Maurice Blackburn has been assisting people who have suffered vilification as a result of campaign material arising from the postal survey.
A number of law firms organised “calling parties” at their offices, with many employees phoning voters as part of the Yes campaign, as well as a forum in support of the campaign.
There are many more stories of support, assistance and commitment by Australian lawyers and law firms to support the LGBTIQ community, to challenge discrimination and to advance the case for same-sex marriage. In undertaking these pro bono initiatives, legal professionals embrace their responsibility (and their privilege) of shaping society for the better.
This chronology is a work in progress. We welcome more information about legal support that has been considerable and will continue, so that we can weave more initiatives into the chronology. We note, for instance, the announcement that the Victorian Law Foundation have just made their largest ever grant, committing $111,000 to seed fund the establishment of an LGBTIQ legal service in Victoria.
To suggest additions to this chronology, email the Centre.
Research assistance for this article was provided by Julianne Tiglao for a presentation made by the Centre’s CEO, John Corker, at the PILnet Global Forum held in October 2017. See John’s conference report here.
We would also like to thank Michelle Hannon and Peter Waters from Gilbert + Tobin, and Anna Brown from the Human Rights Law Centre for their valuable input.
