Monthly Archives: October 2015

Response from Gillian Triggs re Responsibility for LGBTI Issues at the Australian Human Rights Commission

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In July, I wrote about the need for a full-time Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues at the Australian Human Rights Commission (AHRC)[i].

This was in part a response to the actions of Human Rights Commissioner, Tim Wilson, who, while serving as the AHRC spokesperson for SOGII issues, was arguing for the introduction of new rights to discriminate, including against LGBTI couples, as part of any reform to marriage laws[ii].

However, more broadly, it was a reflection of the overall need for the Commission to devote more resources to addressing issues of homophobia, biphobia, transphobia and intersexphobia across Australian society.

As part of that post, I wrote to the President of the AHRC, Gillian Triggs, calling on her to reallocate responsibility for LGBTI issues to a Commissioner other than Mr Wilson. In September, I received the following response from Ms Triggs:

“21 September 2015

Dear Mr Lawrie

Thank you for your letter to me regarding the responsibility for Sexual Orientation, Gender Identity and Intersex (SOGII) Human Rights at the Commission.

The Australian Human Rights Commission comprises the President and 5 Commissioners. As President, I am responsible for all functions of the Commission. However, each Commissioner has a specific portfolio for which they are individually responsible.

I asked Tim Wilson to be the spokesperson on SOGII human rights. However, I and the other Commissioners also contribute public comment on the SOGII portfolio.

Under our statutory mandate at the Commission also has several functions that address the SOGII brief.

  1. We accept and try to resolve by conciliation individual complaints of discrimination and human rights under the four major pieces of legislation. No complaint under these acts can go to a court, unless and until the matter has been considered by the Commission.
  1. We intervene in court proceedings that involve human rights issues and we examine laws relating to certain rights and often propose improvements to those laws.
  1. We conduct national inquiries to bring special attention to issues of concern.
  1. We provide education about human rights to improve awareness, understanding and respect for rights in our community – in particular, the Commission is contributes to the inclusion of human rights education in the development of the National Schools Curriculum and works with the Safe Schools Coalition Australia.
  1. We conduct research and propose new policy and standards which promote the enjoyment of human rights.

The latest example of this is the Resilient individuals: sexual orientation, gender identity & Intersex rights national consultation report, a copy of which I have included in this letter.

The aim of the project was to consult stakeholders to identify key issues that can inform the Commission’s future work on SOGII issues. From June 2014 to January 2015 Cr Tim Wilson travelled nationally to consult lesbian, gay, bisexual and transgender stakeholders in face to face meetings. In addition, over 1550 people participated in an online survey, and over 30 written submissions were received.

While each Commissioner is free to adopt an individual approach to the SOGII portfolio, the Australian Human Right Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.

I hope that this description of the contribution to SOGII matters is helpful.

Best wishes,

Gillian Triggs

President”

[NB Typographical errors in original]

In my view, this letter is not exactly a ringing endorsement of Mr Wilson, or the job that he is doing on LGBTI issues. While it notes the Resilient individuals process and report, led by Mr Wilson, it also makes clear that “I [Gillian Triggs] and the other Commissioners also contribute public comment on the SOGII portfolio” and that “the Australian Human Rights Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.”

Unfortunately, that doesn’t answer the question of whether Ms Triggs and the AHRC are unified in support of the introduction of new rights to discriminate as part of the implementation of marriage equality, something that Mr Wilson advocated for, yet again, last week in the Sydney Morning Herald.[iii]

Nor does it overcome the problem of the AHRC spokesperson on SOGII human rights prioritising the expansion of religious freedoms, including through convening his ‘religious freedom roundtable’ (with the first meeting to be held next Thursday, 5 November 2015), something which usually results in the diminution of rights for lesbian, gay, bisexual, transgender and intersex people.[iv]

However, it appears that these issues aren’t going to be resolved any time soon and, in fact, they may only be conclusively resolved when either the Turnbull Liberal-National Government, or a subsequent Labor Government, finally creates and provides funding for a stand-alone LGBTI Commissioner within the AHRC. Based on the agenda currently being pursued by Mr Wilson, in my opinion that day can’t come soon enough.

President of the Australian Human Rights Commission, Professor Gillian Triggs

President of the Australian Human Rights Commission, Professor Gillian Triggs

[i] “Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission” July 12, 2015: https://alastairlawrie.net/2015/07/12/why-we-need-a-full-time-lgbti-commissioner-at-the-australian-human-rights-commission/

[ii] “Religious freedom and same-sex marriage need not be incompatible” The Australian, 6 July 2015 http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[iii] “Religious freedom isn’t a trump card, but it does need to be a part of marriage equality debate” Sydney Morning Herald, 21 October, 2015 http://www.smh.com.au/comment/religious-freedom-isnt-a-trump-card-but-it-does-need-to-be-a-part-of-marriage-equality-debate-20151020-gkecyn.html

[iv] For more on this issue, see my “Submission on AHRC proposal to create a religious freedom roundtable” September 25, 2015: https://alastairlawrie.net/2015/09/25/submission-on-ahrc-proposal-to-create-a-religious-freedom-roundtable/

Submission to Inquiry into Queensland Civil Partnerships Bill

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UPDATE 6 January 2016:

 

The Legal Affairs and Community Safety Committee tabled its report in Queensland Parliament on 17 November 2015[i].

 

The cross-party Committee failed to support the Bill: “[i]n this instance the committee was not able to reach a majority decision on a motion to recommend that the Bill be passed.”[ii]

 

Liberal-National MPs on the Committee opposed the reintroduction of civil partnerships, and optional ceremonies, to such an extent that they did not even allow submissions and relevant evidence to be included as part of the main report – this information was only included as part of the Government Members Statement of Reservation.

 

It was therefore only because of ALP Committee Members Mark Furner, Jim Madden and Mark Ryan that we know 27 of the 29 submissions made were in favour of reintroducing civil partnerships.[iii]

 

Government Members also reported that, as at 4 November 2015, 6,856 mixed-sex couples had taken advantage of Queensland civil partnership/registered relationship schemes, compared to only 1,227 same-sex couples (thus demonstrating the need to retain alternative relationship recognition options even after marriage equality is finally legislated federally).

 

I am also thankful that Government MPs saw fit to include two quotes from my personal submission:

 

  • “The decision to abolish civil partnership ceremonies, and the haste with which it was achieved, was an unjustified, divisive and mean-spirited act – and I commend the current Queensland Government for taking steps to undo the damage that was done three years ago” on page 12, and

 

  • “In my view, the term ‘civil partnership’ is a much more accurate description of the relationship which exists within couples who wish to have their partnership formally recognised under state law, whereas, to me, ‘registered relationship’ is a more sterile term which merely describes the process of recognition rather than the relationship itself” on page 19 of the report.

 

The Bill was then debated in Queensland’s Legislative Assembly on Thursday 3 December 2015. It was supported by all Labor MPs as a piece of Government legislation.

 

Somewhat surprisingly, given the behaviour of their MPs on the Legal Affairs and Community Safety Committee, the LNP offered a conscience vote to its MPs and half chose to exercise their vote to support the Bill, meaning that it passed by a large majority: 64 votes in favour, compared to only 22 votes against.

 

Once again, I am grateful that Government MPs quoted my submission – both the Member for Brisbane Central, Ms Grace Grace, and the Member for Ipswich West, Mr Jim Madden, used the first quote highlighted above.

 

The Relationships (Civil Partnerships) and Other Acts Amendment Act 2015 received Royal Assent on 17 December 2015, and its provisions, restoring civil partnerships and once again allowing couples to hold a formal civil partnership ceremony if they so choose, will commence sometime early this year.

 

Thankfully, one sad, recent chapter of Queensland’s LGBTI history is now closed. Although there remain a variety of areas which still require action by the Palaszczuk Government, including (among others):

 

  • Equalising the age of consent for anal intercourse
  • Introducing adoption equality
  • Abolishing the homosexual advance or ‘gay panic’ defence and
  • Expunging historical homosexual convictions.

 

ORIGINAL POST:

Submissions to the Parliamentary Inquiry into Queensland’s Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 close tomorrow (Monday 19 October 2015). Full details on the inquiry, including how to submit, can be found here: <https://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/current-inquiries/07-RelationshipsCPOAAB15 Here’s my own submission:

Research Director

Legal Affairs and Community Safety Committee

Parliament House

George St

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

Sunday 18 October 2015

Dear Committee Members

INQUIRY INTO THE RELATIONSHIPS (CIVIL PARTNERSHIPS) AND OTHER ACTS AMENDMENT BILL 2015

Thank you for the opportunity to provide a submission to this inquiry that is considering the details of the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015.

I write in support of the Bill, for two main reasons:

  1. The term ‘civil partnerships’ is strongly preferred when compared to the term ‘registered relationships’.
  2. The Act restores the right of couples to enter into a civil partnership by holding a civil partnership ceremony if they so choose.

The first point may seem comparatively minor, considering it relates only to nomenclature, but terminology is important, particularly when it describes something as personal as the relationship between two members of a couple.

In my view, the term ‘civil partnership’ is a much more accurate description of the relationship which exists within couples who wish to have their partnership formally recognised under state law, whereas, to me, ‘registered relationship’ is a more sterile term which merely describes the process of recognition rather than the relationship itself.

It is also my view that the term civil partnership is more likely to be understood, and accepted, by members across the community, whereas the term registered relationship is less likely to attract widespread social acceptance from others.

The second reason why I support the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 is more substantive, and that is because it restores the ability of couples to enter into a civil partnership by holding a civil partnership ceremony.

Importantly, it is not compulsory – couples that wish to pursue this option will be able to do so, while other couples will be able to enter into a civil partnership without holding a ceremony.

I wholeheartedly agree with the description of this reform contained in the letter from the Director-General of the Department of Justice and Attorney-General, Mr David Mackie, to the Committee dated 1 October 2015:

“This is being done to support the dignity and equality of each and every Queenslander by giving them the opportunity to formally declare their commitment to their significant.”

In fact, it is difficult to conceive any rational justification to oppose these provisions – after all, who would want to actively deny their fellow citizens the choice to hold a civil partnership ceremony, if that is what the couple desired?

And yet, that is exactly what the majority of Queensland Members of Parliament did in June 2012, voting to strip away the ability of these couples to hold a formal ceremony. Not only that, the removal of these rights was such a high priority for the (then) newly-elected Newman Liberal National Government that is was enacted within three months of its landslide victory.

The decision to abolish civil partnership ceremonies, and the haste with which it was achieved, was an unjustified, divisive and mean-spirited act – and I commend the current Queensland Government for taking steps to undo the damage that was done three years ago.

I also commend the Palaszczuk Labor Government because, in introducing the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015, it is doing what it can within the powers of a state government to recognise the diversity of relationships that exist in contemporary society.

With the High Court finding in December 2013 that only the Commonwealth Parliament has the power to legislate for marriage equality, but the majority of Members and Senators of that Parliament showing their continued unwillingness to recognise the full equality of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians, it is pleasing to see a state government providing the opportunity for all couples, including LGBTI couples, to enter into civil partnerships – and offering the choice to hold a civil partnership ceremony, too.

Even after marriage equality is finally enacted by our recalcitrant federal parliamentarians, the ability to enter into a civil partnership under state law will remain an important option for those couples who do not wish to marry for whatever reason (and that includes both cisgender heterosexual couples, and LGBTI couples).

For all of these reasons, I support the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015, and urge Committee Members, and indeed all Queensland MPs, to ensure it is passed by the Parliament as a matter of priority.

Finally, I note that the renaming of civil partnerships, including restoring the right of couples to enter into a civil partnership by holding a civil partnership ceremony if they so choose, is just one of several important measures which are required to ensure LGBTI people are finally treated equally under Queensland law.

Other necessary reforms include abolition of the gay panic defence, the introduction of adoption equality, the equalisation of the age of consent for anal intercourse and the expungement of historical convictions for gay sex. I look forward to these issues, and more, being addressed by the Queensland Parliament in the near future.

Thank you in advance for considering this submission. Should the Committee require additional information, or wish to clarify any of the information above, I can be contacted at the details below.

Sincerely

Alastair Lawrie

Queensland Attorney-General Yvette D'Ath introduced the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 in September.

Queensland Attorney-General Yvette D’Ath introduced the Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 in September.

[i] Final Report: https://www.parliament.qld.gov.au/documents/committees/LACSC/2015/07-RelationshipsCPOAAB15/07-rpt-014-17Nov2015.pdf

[ii] Ibid, p4.

[iii] Ibid, p12.

Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

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Post Update #3: 12 January 2017

Contrary to the response received from the Department of Justice in November 2015 (included below), and commitments given by Attorney-General Gabrielle Upton in October 2015, the NSW Government did not release an Exposure Draft Bill to reform vilification laws in early 2016.

In fact, as noted by the Sydney Morning Herald in November 2016: “NSW Parliament has risen for the year without any action on reforms promised by the NSW Attorney-General to ethnic communities a year ago to make it easier to prosecute serious racial vilification cases in the state.”

That means there has been an entire year of inaction on much-needed reforms to vilification laws, that would have not only strengthened racial vilification laws, but also harmonised provisions across the different grounds for vilification (including homosexual, transgender and HIV/AIDS vilification).

This inaction is incredibly disappointing given that same 12-month period has seen a wide range of homophobic and transphobic public debate in NSW, and across Australia (see 2016: Annus Homophobicus). Hopefully 2017 will see this situation change – although, based on the past year, I certainly won’t be holding my breath.

 

Post Update #2: 23 December 2015

I received the following response to my letter (below) on 19 November 2015, not from the Attorney-General Ms Upton, but instead from the Director of the Community Relations Unit in the Department of Justice [and apologies for the delay in posting before now]:

“I refer to your email to the Attorney General, the Hon Gabrielle Upton MP, about your concerns regarding a review of the NSW racial vilification laws. The Attorney General has asked me to reply on her behalf.

NSW is one of the most culturally, linguistically and religiously diverse
communities in the world. To protect the diversity of our community, the
Government has committed to amending the Anti-Discrimination Act 1977 (the Act), in particular the racial vilification laws.

Currently, the vilification offences make it clear that for vilification to
be an offence it must threaten violence or incite others to threaten
violence.

As you are aware, the New South Wales Legislative Council’s Law and Justice Committee conducted a review of racial vilification laws in New South Wales, in particular section 20D of the Act.

Section 20D of the Act makes it a criminal offence to incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of
persons on the grounds of race by means which include; threatening physical harm towards, or towards any property of, the person or group of persons, or inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

In its Report, the Committee concluded that improvements were required to the Act. These improvements include allowing the President of the
Anti-Discrimination Board to refer complaints directly to the NSW Police,
extending the time limit for commencing prosecutions from six months to 12 months and clarifying reckless actions are sufficient to establish an
intention to incite under section 20D.

In light of the Committee’s Report, the NSW Government considers the racial vilification offence and other vilification offences relating to
homosexuality, HIV/AIDS status and transgender status in the Act also need revising.

The Government intends to release for public consultation an exposure draft Bill amending the State’s vilification laws, with legislation to be
introduced into Parliament in the first half of 2016. Details regarding the
draft exposure Bill will be released in early 2016.

Thank you for taking the time to write about this issue.

Yours faithfully

Director
Community Relations Unit
NSW Department of Justice”

 

Post Update #1: 1 November 2015

The NSW Attorney-General, the Hon Gabrielle Upton MP, announced the NSW Government’s position of vilification reforms on Monday 19 October 2015.

According to the Sydney Morning Herald[i]:

“The government will overhaul hate speech laws in NSW following the terror attack at Parramatta police headquarters and calls from the opposition for stronger laws to clamp down on ‘radical preachers’.

Attorney-General Gabrielle Upton said the government will strengthen and streamline racial vilification laws, defying right-wing commentators who have previously said proposed reforms were ‘straight out of the Leninist playbook.’

Ms Upton said recent events had ‘reinforced the necessarily of being vigilant to and guarding against the spread of racial vilification’.”

Importantly, the Guardian[ii] also reported that “LGBTIQ groups have been lobbying for hate speech against members of their communities to be included in any new laws and it is understood the proposed changes would include them” although it did not provide any further information on this issue.

I sought clarification through twitter from the Attorney-General on the inclusion, or exclusion, of LGBTI vilification in the reforms, and received the following reply:

IMG_0640

This response obviously gives hope that vilification provisions contained in the Anti-Discrimination Act 1977 may finally be amended to be genuinely LGBTI inclusive, although it will be important to closely scrutinise the Government’s exposure draft Bill, which is expected to be released for public consultation in January 2016.

One final cause for optimism – on the day before Attorney-General Upton’s announcement, the Leader of the NSW Opposition, Luke Foley, made a similar commitment on vilification reform. As reported by samesame[iii]:

“The Labor opposition in New South Wales wants to ensure people who promote or advocate violence based on race, gender or sexual orientation are punished under the law.”

All we need to do now is hold both the Liberal-National Government, and Labor Opposition, to their public commitments.

[i] “Hate speech overhaul to try to spread of racial vilification”, Sydney Morning Herald, 19 October 2015: http://www.smh.com.au/nsw/hate-speech-overhaul–to-try-to-stop-spread-of-racial-vilification-20151018-gkbukb.html

[ii] “New South Wales hate speech laws to clamp down on ‘violent extremists’”, The Guardian, 19 October 2015: http://www.theguardian.com/australia-news/2015/oct/19/new-south-wales-hate-speech-laws-to-clamp-down-on-violent-extremists

[iii] “NSW Opposition: ‘Hate speech should be a crime’”, samesame, 19 October 2015: http://www.samesame.com.au/news/12884/NSW-opposition-Hate-speech-should-be-a-crime

 

Original Post: 16 October 2015

The Hon Gabrielle Upton MP

Attorney-General

GPO Box 5341

Sydney NSW 2001

office@upton.minister.nsw.gov.au

Friday 16 October 2015

Dear Attorney-General

REFORMS TO NSW ANTI-VILIFICATION LAWS

I am writing to you on the subject of possible changes to anti-vilification laws in the Anti-Discrimination Act 1977(‘the Act’), as flagged by you in two tweets on 18 September 2015[i], and as confirmed in an article which appeared in The Australian on 23 September 2015, in which your spokesperson “said the NSW government was ‘working towards reform’ in the area”.[ii]

Specifically, I am writing to seek your assurance that any reforms to anti-vilification laws will apply equally across all grounds of vilification, including homosexual, transgender and HIV vilification which are also included in the Act, and will not prioritise racial vilification as more important, or worthy of punishment, than vilification on the basis of other attributes.

Instead, I urge you and the Liberal-National Government to ensure that anti-vilification laws apply fairly both to members of NSW’s ethnic communities, and to the state’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

To begin with, I note that currently the provisions of the Anti-Discrimination Act only protect lesbian, gay[iii] and transgender[iv] members of the LGBTI community. There is no legal protection for bisexual and intersex people against vilification on the basis of who they are (or against discrimination more broadly, for that matter).

If reforms are to be made to anti-vilification laws in NSW, then the specific inclusion of bisexual and intersex people in the Act must be a priority.

Even more concerningly, I note that there is a discrepancy in the penalties for vilification which are contained in the Act, depending on the attribute which is involved.

For example, while the maximum penalty for homosexual and transgender vilification by an individual is set at “10 penalty units or imprisonment for 6 months, or both”[v], the penalty for racial or HIV vilification by an individual is set at “50 penalty units or imprisonment for 6 months, or both.”[vi]

Given the vast majority of prosecutions for vilification offences in NSW are unlikely to result in imprisonment, the consequence of this discrepancy is to send the message to the community, whether intentionally or otherwise, that racial and HIV vilification is five times more important, or worthy of punishment, than homosexual or transgender vilification.

I find this message to be inherently offensive – that equivalent acts of vilification should attract differing penalties simply because it involved sexual orientation or gender identity rather than race. I sincerely hope that you agree – and that you will therefore commit to harmonising the penalties for vilification contained in the Act.

However, I am concerned that, rather than ameliorating existing problems, the reforms to NSW’s anti-vilification laws which you have indicated you are considering will instead compound the differential treatment of racial vilification compared to homosexual or transgender vilification.

That is because these reforms appear to be based primarily on the recommendations of the 2013 Legislative Council Standing Committee on Law and Justice Inquiry into Racial Vilification Law in New South Wales.[vii]

This Inquiry made a number of recommendations to amend racial vilification laws, including to:

  • Include “quasi-public places, such as the lobby of a strata or company title apartment block” (Recommendation 1)
  • Clarify that “recklessness is sufficient to establish intention to incite” (Recommendation 3)
  • “[R]eview the adequacy of the maximum penalty units in section 20D of the Anti-Discrimination Act 1977, taking into account the maximum penalty units for comparable offences within the Crimes Act 1900 and other Australian jurisdictions” (Recommendation 6)
  • “[R]epeal the requirement for the Attorney-General’s consent to prosecutions of serious racial vilification” (Recommendation 7)
  • Extend the time limits for commencing prosecutions for racial vilification offences to 12 months, or alternatively to extend the timeframe for the President of the Anti-Discrimination Board to refer complaints to the Attorney-General (Recommendations 9, 10)
  • “[A]llow the President of the Anti-Discrimination Board of NSW to directly refer serious racial vilification complaints to the NSW Police Force” (Recommendation 11) and
  • Provide training to NSW Police Force members about the offence of serious racial vilification (Recommendation 14).[viii]

It is arguable that the inquiry itself was flawed from the beginning given it focused on only one out of the four existing grounds of vilification in the Act.

However, what is beyond doubt is that, were you to adopt the recommendations of this Inquiry as a whole, but only with respect to racial vilification, you and the Liberal-National Government would in effect be creating a discriminatory ‘hierarchy’ of vilification laws and procedures in NSW law.

The offences of racial and homosexual vilification are drafted in exactly the same way – the only difference being substitution of the word homosexuality for race.[ix]

In which case, there cannot be any justification for the introduction and passage of laws which would mean that only racial vilification applies in quasi-public places, or includes recklessness, or attracts higher penalties, or does not need Attorney-General approval to commence proceedings, or has longer timeframes for prosecution, or can be directly referred to Police, or for which NSW Police Force members are specifically trained.

Therefore, the implementation of these reforms, if applied exclusively to racial vilification, would be both discriminatory and unjustifiable.

However, what would make them repugnant is the fact that the Standing Committee on Law and Justice’s own rationale for at least one of its recommendations – to extend the time limits for commencing prosecution of vilification offences to 12 months – is in fact based on a case of alleged homosexual vilification. As discussed in Chapter 6 of the Committee Report:

“6.20 The Board referred to a recent case involving homosexual vilification, Simon Margan v Director of Public Prosecutions & Anor [2013] NSWSC 44, which illustrated the potential issues surrounding the timeframe for lodging vilification complaints. In that case, Mr Margan lodged a complaint with the Anti-Discrimination Board of NSW within the 12 month timeframe required under s89B of the Anti-Discrimination Act. However the Director of Prosecutions (DPP), and later the Supreme Court, dismissed the offence as statute barred as it was a summary offence and proceedings were required to be commenced within six months.

Committee comment

6.21 The Committee understands that there is a significant discrepancy between the timeframes for lodging complaints under s89B of the Anti-Discrimination Act (12 months of an incident occurring) and s179 of the Criminal Procedure Act 1986 (summary offences must commence within six months of an incident occurring). The case of Simon Margan v Director of Public Prosecutions & Anor highlighted the injurious impact that this discrepancy can have on vilification complaints.

6.22 It appears sensible to align the above timeframes. Therefore the Committee recommends that the NSW Government extend the time limit for prosecutions under section 179 of the Criminal Procedure Act to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act.”[x]

And yet, despite noting the ‘injurious impact’ of the discrepancies in time limits on Mr Margan, whose complaint was based on homosexual vilification, the Committee’s recommendation was explicitly restricted to racial vilification:

“Recommendation 9

That, for the purposes of racial vilification proceedings only [emphasis added], the NSW Government extend the time limit for commencing prosecutions under section 79 of the Criminal Procedure Act 1986 to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act 1977.”[xi]

If you and the Liberal-National Government were to implement Recommendation 9 as it stands then you would only be adding insult to injury.

For all of the reasons outlined above, I urge you to ensure that any reforms which you make to the anti-vilification laws contained in the Anti-Discrimination Act treat vilification equally across all grounds, and do not unjustifiably, and above all unjustly, prioritise racial vilification offences and discriminate against homosexual, transgender and HIV vilification protections.

Finally, if you are serious about modernising the vilification provisions contained in the Act you should also expand the grounds covered to offer vilification protection to bisexual and intersex people for the first time (and indeed to provide them with anti-discrimination coverage too), and to remove the existing discrepancies in penalties between racial and HIV vilification offences on the one hand, and homosexual and transgender vilification offences on the other.

Thank you in advance for taking my correspondence into consideration. Should you require additional information, or wish to clarify any of the above comments, please do not hesitate to contact me at the details provided below.

Sincerely

Alastair Lawrie

NSW Attorney-General the Hon Gabrielle Upton MP

NSW Attorney-General the Hon Gabrielle Upton MP

[i] Gabrielle Upton MP (@gabrielleupton), 8:55am – 18 Sep 2015: “.@shumba60 Racial vilification abhorrent. NSW Govt considering proposed changes to streamline/strengthen race hate laws @mikebairdMP #nswpol”

Gabrielle Upton MP (gabrielleupton), 3:39pm – 18 Sep 2015: “.@VicAlhadeff #NSWGovt wants inclusive, diverse comm. Considering changes to streamline/strengthen race hate laws @NSWJBD @ajnnews #nswpol”

[ii] “Taunts to Trigger Race-Hate Law Overhaul”, The Australian, September 23 2015: http://www.theaustralian.com.au/national-affairs/state-politics/taunts-to-trigger-race-hate-law-overhaul/story-e6frgczx-1227539272920?sv=64dde3a02ebcfb4c634183c907bbeacf

[iii] Sub-section 49ZT(1) Homosexual vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.”

[iv] Sub-section 38S(1) Transgender vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons.”

[v] S49ZTA(1)(b), s38T(1)(b)

[vi] S20D(1)(b), s49ZXC(1)(b)

[vii] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013: https://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/E08D4387100A3C56CA257C35007FCC4D?open&refnavid=x

[viii] Ibid, pp xii-xiii.

[ix] S20D Offence of serious racial vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

S49ZTA Offence of serious homosexual vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

[x] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013, pp84-85.

[xi] Ibid, p85.