A Quick Guide to Australian LGBTI Anti-Discrimination Laws

Commonwealth_ Sex Discrimination Act 1984

 

In the five years I have been writing about LGBTI rights in Australia, I have yet to come across a quick guide to the laws which protect lesbian, gay, bisexual, transgender and intersex Australians against discrimination (even the Wikipedia page ‘LGBT rights in Australia’ has a brief description of the rights provided by the Sex Discrimination Act 1984 before stating that ‘each of the states and territories have their own laws which protect LGBTI people from discrimination’ – and that’s it).

 

In which case, and given I have already written in detail about the LGBTI anti-discrimination and anti-vilification laws that exist in the Commonwealth, and each of the States and Territories (those posts can be found here), I thought it would be useful to provide the following short summary of these laws, including who they cover, the religious exceptions they contain, and whether they provide protection against vilification:

 

  1. What is the relevant law?

 

Jurisdiction

Legislation

Commonwealth

Sex Discrimination Act 1984

New South Wales

Anti-Discrimination Act 1977
Victoria

Equal Opportunity Act 2010

Queensland

Anti-Discrimination Act 1991

Western Australia

Equal Opportunity Act 1984
South Australia

Equal Opportunity Act 1984

Tasmania

Anti-Discrimination Act 1998

Australian Capital Territory

Discrimination Act 1991

Northern Territory

Anti-Discrimination Act

 

  1. Are lesbians, gay men and bisexuals protected against discrimination?

 

                                 

Lesbians and gay men

Bisexuals

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

As you can see, the NSW Anti-Discrimination Act 1977 is the only anti-discrimination law in Australia that does not cover bisexual people[i] (interestingly, it is also the only jurisdiction where heterosexuals have no protection under anti-discrimination law).

 

  1. Are transgender people protected against discrimination?

 

Different jurisdictions have adopted different approaches to transgender anti-discrimination protection, in large part due to when their respective laws were introduced. This means that while some cover gender identity broadly,[ii] others only protect trans people with binary gender identities (where a person identifies with the ‘opposite’ gender to that which they were assigned at birth – eg MTF and FTM trans people) and exclude people with non-binary gender identities (ie people whose gender identities are more diverse).[iii]

 

                                 

Trans people with binary gender identities

People with non-binary gender identities

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

Some*
South Australia

Tasmania

Australian Capital Territory

Northern Territory

Some*

 

Disappointingly, only four jurisdictions cover people with both binary and non-binary gender identities. While seven laws at a minimum cover all people with binary gender identities, there are two jurisdictions that have adopted even narrower definitions:

 

  • The Western Australian Equal Opportunity Act 1984 only covers people who have been issued with a recognition certificate under the Gender Reassignment Act 2000 (meaning those people who have transitioned and where that transition has been recognised by the Government);[iv]

 

  • The Northern Territory Anti-Discrimination Act protects ‘transsexuality’ as part of the definition of ‘sexuality’ – some people who have binary gender identities (MTF or FTM) may not identify with this terminology. More hopefully, the new NT Government is currently considering possible improvements to their legislation, including the introduction of ‘gender identity’ as a protected attribute (for more information, see their consultation paper here.)

 

  1. Are intersex people protected against discrimination?

 

 

Intersex

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

When the Commonwealth Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, it became the first national parliament in the world to include ‘intersex status’ as a protected attribute.[v] Since then, Tasmania, the ACT and South Australia have all introduced amendments to protect intersex people against discrimination.

 

  1. Are LGBT people protected against discrimination by religious organisations (general)?

 

As I have written extensively elsewhere, one of the key weaknesses of most LGBTI anti-discrimination laws in Australia is that they provide special rights for religious organisations to discriminate against lesbian, gay, bisexual and transgender people.[vi] We will first examine how these religious exceptions operate generally, before looking specifically at the issues of students in religious schools (question 6) and teachers and other staff in religious schools (question 7).

 

                                 

Do LGBT people have any protections against discrimination by religious organisations?

LGBT people have limited protections against religious discrimination

LGBT people have general protections against religious discrimination

Commonwealth

Aged care*
New South Wales

Victoria

Queensland

Western Australia

South Australia Teachers*

Tasmania

Australian Capital Territory

Northern Territory

 

There is only one LGBTI anti-discrimination law in Australia that offers general protections against discrimination by religious organisations: Tasmania’s Anti-Discrimination Act 1998. That is because the religious exceptions contained in that legislation only allow religious organisations to discriminate on the basis of people’s religious beliefs, and not on the basis of sexual orientation, gender identity or intersex status.

 

On the other hand, the religious exceptions contained in the anti-discrimination laws of New South Wales, Victoria, Western Australia and the Australian Capital Territory provide religious organisations with carte blanche to discriminate against LGBT people. Section 56 of the NSW Anti-Discrimination Act 1977 is a typical example of the special rights given to these bodies:

 

“Nothing in this Act affects:

(a) the ordination or appointment of priests, ministers of religious or members of any religious order,

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religious or members of a religious order,

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avid injury to the religious susceptibilities of the adherents of that religion.”

 

The other jurisdictions offer only limited protections against religious-based discrimination against LGBT people. Under the Commonwealth Sex Discrimination Act 1984, religious organisations can discriminate against LGBT people in all circumstances other than with respect to LGBT people accessing Commonwealth-funded aged care services[vii] (although they can still discriminate against LGBT employees in these facilities).

 

The Queensland Anti-Discrimination Act 1991 actually contains the second-best protections for LGBT people against discrimination by religious organisations. It does not allow discrimination against LGBT students in religious schools, and has limited protections for teachers too (see questions 6 and 7 respectively). More broadly, it does not provide a general right for religious organisations to discriminate against LGBT employees, but instead limits this right to employees where acting, or not acting, in a particular way breaches the ‘genuine occupational requirements’ of that position.[viii]

 

The South Australian Equal Opportunity Act 1984 provides broad religious exceptions outside religious schools, where they may or may not be able to discriminate against LGBT students, and have to satisfy procedural obligations in order to discriminate against LGBT teachers (see questions 6 and 7, below).

 

Finally, the religious exceptions contained in the Northern Territory Anti-Discrimination Act are narrower than in other jurisdictions because of the specific wording that is used:

 

“Section 51 This Act does not apply to or in relation to: …

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

 

This at least restricts the discrimination that is permissible to acts in relation to ‘religious observance or practice’ only (although there are specific exceptions in relation to employment in religious schools – see question 7 below).

 

  1. Are LGBT students protected against discrimination by religious schools?

 

 

LGBT students at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Probably not*
Tasmania

Australian Capital Territory

Northern Territory

Probably*

 

There are only two jurisdictions in which LGBT students are clearly protected against discrimination by religious schools: Tasmania and Queensland. In two other jurisdictions, the level of protection is debatable. In the Northern Territory it is likely that LGBT students are protected, because of the narrow way in which the religious exceptions contained in section 51 of the Anti-Discrimination Act are framed.

 

In South Australia the situation is less clear. Section 37 of the Equal Opportunity Act 1984 provides quite broad protections against discrimination by educational authorities against students on the basis of sexual orientation or gender identity.[ix] However, it is likely these protections are still overridden by the broad religious exceptions contained in sub-section 50(1)(c).[x]

 

In all of the other jurisdictions, including the Commonwealth, NSW, Victoria, Western Australia and the ACT, LGBT students do not have any protection against discrimination by religious schools. Indeed, the exceptions contained in the NSW Anti-Discrimination Act 1977 go even further, allowing discrimination against lesbian, gay and transgender students by all private schools and colleges, even where those institutions are not religious.[xi]

 

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

  1. Are LGBT teachers protected against discrimination by religious schools?

 

 

LGBT teachers at religious schools

Commonwealth

New South Wales

Victoria

Queensland

Don’t Ask, Don’t Tell*
Western Australia

South Australia

Procedural requirements*
Tasmania

Australian Capital Territory

Northern Territory

 

Only one Australian LGBTI anti-discrimination law fully protects lesbian, gay, bisexual and transgender teachers and other staff at religious schools against discrimination: Tasmania’s Anti-Discrimination Act 1988.

 

In Queensland, religious schools are allowed to discriminate against people who work for religious schools where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs, during a selection process; or in the course of the person’s work; or in doing something connected with the person’s work; and it is a genuine occupational requirement of the employer that the person… act in a way consistent with the employer’s religious beliefs.”[xii]

 

However, religious schools are not allowed to ‘seek information’ in relation to an employee’s sexual orientation or gender identity. In effect, LGBT teachers and other staff at religious schools in Queensland are subject to a ‘Don’t Ask’ Don’t Tell’ policy (which, as was seen in relation to the United States military, is nevertheless an unjust and unjustifiable imposition on a minority group).

 

In South Australia, religious schools are allowed to discriminate against LGBT teachers and other staff, however this ‘right’ is subject to procedural requirements, including that the school must have a written policy outlining its discriminatory policy which is provided to people interviewed for or offered employment. The policy must also be provided on request, free of charge, to employees, students and parents (and prospective employees, students and parents) as well as to general members of the public.[xiii]

 

In all other Australian jurisdictions (the Commonwealth, NSW, Victoria, WA, the ACT and the Northern Territory[xiv]), religious schools are free to discriminate against LGBT teachers. Once again, in NSW this extends to all private schools and colleges, even where they are not religious.[xv]

 

For more on this subject, see Back to School, Back to Discrimination for LGBT Students and Teachers.

 

  1. Are lesbians, gay men and bisexuals protected against vilification?

 

                                 

Lesbians and gay men

Bisexuals
Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

Only four Australian jurisdictions offer any anti-vilification protections for the LGBTI community: NSW, Queensland, Tasmania and the ACT.

 

In NSW, as with the protections against discrimination, these laws do not cover bisexual people against vilification. The maximum individual fine for ‘homosexual vilification’ under the NSW Anti-Discrimination Act 1977 is also significantly lower than the maximum individual fine for ‘racial vilification’ (10 penalty units[xvi] versus 50 penalty units[xvii]).

 

In contrast, the Commonwealth, Victoria, Western Australia and South Australia all have protections against racial vilification, but fail to offer equivalent protections against anti-LGBTI vilification. The Northern Territory does not prohibit either racial or anti-LGBTI vilification – although it is considering the issue of anti-vilification protections as part of its current consultation process.

 

  1. Are trans and intersex people protected against vilification?

 

                                 

Trans people with binary gender identities

People with non-binary gender identities

Intersex

Commonwealth

New South Wales

Victoria

Queensland

Western Australia

South Australia

Tasmania

Australian Capital Territory

Northern Territory

 

Four jurisdictions protect transgender people with binary gender identities against vilification (NSW[xviii], Queensland, Tasmania and the ACT). However, given the narrow definitions adopted in the NSW Anti-Discrimination Act 1977 and the Queensland Anti-Discrimination Act 1991, only Tasmania and the ACT protect people with non-binary gender identities against vilification.

 

Those same jurisdictions – Tasmania and the ACT – are also the only places in Australia to prohibit vilification on the basis of intersex status. However, in Tasmania there is a concern in that while all of sexual orientation, gender identity and intersex are included in the general anti-vilification provision,[xix] only sexual orientation is included as part of the more serious offence of inciting hatred.[xx]

 

  1. What other issues exist with Australian LGBTI anti-discrimination laws?

 

The above questions have examined three main areas of the LGBTI anti-discrimination laws across the Commonwealth, and the States and Territories:

 

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

 

However, these are not the only areas where there are significant problems with the anti-discrimination laws that apply to lesbian, gay, bisexual, transgender and bisexual people in Australia. The following is a non-exhaustive list of some of the other issues I have come across:

 

Commonwealth: The Sex Discrimination Act 1984 does not establish a position of LGBTI Discrimination Commissioner (despite providing for a Sex Discrimination Commissioner). This leaves Australia’s LGBTI community at a significant disadvantage compared to other vulnerable groups, and should be rectified (for more on this issue, see: Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission).

 

NSW: The Anti-Discrimination Act 1977 allows employers with five employees or less to discriminate against LGBT employees[xxi]. There are no such provisions allowing employers to discriminate on the basis of race.

 

Victoria: The Equal Opportunity Act 2010 doesn’t just allow religious organisations to discriminate against LGBT people, it also includes a special right for individuals to do the same[xxii] (a provision that does not seem to be replicated in any other jurisdiction).

 

Queensland: The Anti-Discrimination Act 1991 includes a particularly abhorrent section which allows discrimination against transgender people in relation to employment that involves children. Section 28 states:

 

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having regard to all the relevant circumstances of the case, including the person’s actions.”

 

Western Australia: While the Equal Opportunity Act 1984 allows for positive discrimination “to ensure that persons of a particular sexual orientation have equal opportunities with other persons”[xxiii] there are no equivalent provisions allowing for positive discrimination for transgender people.

 

South Australia: Disappointingly, the Equal Opportunity Act 1984 makes it lawful to discriminate “on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”[xxiv]

 

  1. Are LGBTI people protected against discrimination under the Commonwealth Fair Work Act 2009?

 

While most anti-discrimination protections are included in the nine Commonwealth, state and territory laws discussed above, there is also a key protection against discrimination located in the Fair Work Act 2009.

 

                                 

Are lesbians, gay men and bisexuals protected under the Fair Work Act?

Are transgender people protected? Are intersex people protected?
Commonwealth

 

Unfortunately, as this table demonstrates, the Commonwealth Fair Work Act 2009 does not protect all parts of the LGBTI community against discrimination. That is because section 351 provides that:

 

“(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

 

While it includes sexual orientation (meaning lesbian, gay and bisexual people enjoy protection), the omission of gender identity and intersex status leaves both of these groups without equivalent protection.[xxv] This is a serious deficiency that must be addressed as a matter of priority.

 

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For more detailed analysis of the LGBTI anti-discrimination laws that operate in the Commonwealth, and each State and Territory, see:

 

 

 

 

 

 

 

 

 

 

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Footnotes:

[i] NSW protects only ‘homosexuality’, with the definition in section 4 of the Anti-Discrimination Act 1977 stating that ‘homosexual means male or female homosexual’. In contrast, other jurisdictions either include a protected attribute of ‘sexual orientation’, or specifically include both homosexuality and bisexuality.

[ii] For example, section 4 of the Commonwealth Sex Discrimination Act 1984 defines gender identity as ‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’

[iii] For example, section 38A of the NSW Anti-Discrimination Act 1977 states that ‘[a] reference in the Part to a person being transgender or a transgender person is a reference to a person… (i) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (ii) who has identified as a member of the opposite sex by living as a member of the opposite sex…’

[iv] The Western Australian Equal Opportunity Act 1984 prohibits discrimination ‘against a gender reassigned person on gender history grounds’ (section 35AB), where section 4 defines a gender reassigned person as ‘a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000’ while section 35AA states that ‘a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.’

[v] With ‘intersex status’ defined in section 4 of the Commonwealth Sex Discrimination Act 1984 as ‘the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.’

[vi] In this section, I refer primarily to LGBT people, rather than LGBTI people, because it is generally understood that religious exceptions would not (or at the very least should not) be used against people with intersex variations.

[vii] Sub-section 37(2) of the Commonwealth Sex Discrimination Act 1984 limits the general religious exceptions contained in the Act by stating that they do “not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment or persons to provide that aged care.”

[viii] Sub-section 25(3) of the Queensland Anti-Discrimination Act 1991 provides that:

“It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.”

[ix] SA Equal Opportunity Act 1984: “Section 37- Discrimination by educational authorities …

(2) It is unlawful for an educational authority to discriminate against a student on the ground of sex, sexual orientation or gender identity-

(a) in the terms or conditions on which it provides the student with training or education; or

(b) by denying or limiting access to a benefit provided by the authority; or

(c) by expelling the student; or

(d) by subjecting the student to other detriment.”

[x] SA Equal Opportunity Act 1984: “This Part does not render unlawful discrimination in relation to-

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

[xi] Sections 38K(3) and 49ZO(3), NSW Anti-Discrimination Act 1977.

[xii] Sub-sections 25(2) and (3) of the Queensland Anti-Discrimination Act 1991.

[xiii] SA Equal Opportunity Act 1984: Sub-section 34(3):

“This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

[xiv] Despite its relatively narrow religious exceptions, section 37A of the NT Anti-Discrimination Act provides an explicit right for religious schools to discriminate against LGBT teachers:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

[xv] Sub-sections 38C(3)(c) and 49ZH(3)(c), NSW Anti-Discrimination Act 1977.

[xvi] Sub-section 49ZTA(1)(b), NSW Anti-Discrimination Act 1977.

[xvii] Sub-section 20D(1)(b), NSW Anti-Discrimination Act 1977.

[xviii] Although, once again, the maximum individual fine for transgender vilification (as established in sub-section 38T(1)(b) of the NSW Anti-Discrimination Act 1977) is significantly lower than the maximum individual fine for racial vilification (10 penalty units versus 50 penalty units).

[xix] Section 17 of the Tasmanian Anti-Discrimination Act 1998.

[xx] Section 19 of the Tasmanian Anti-Discrimination Act 1998.

[xxi] Sub-sections 38C(3)(b) and 49ZO(3)(b), NSW Anti-Discrimination Act 1977.

[xxii] Section 84, Victorian Equal Opportunity Act 2010.

[xxiii] Section 35ZD, Western Australian Equal Opportunity Act 1984.

[xxiv] Sub-section 34(4), South Australian Equal Opportunity Act 1984.

[xxv] The inclusion of ‘marital status’ rather than ‘marital or relationship status’ is also potentially problematic.

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Malcolm Turnbull, If you want to ‘strengthen’ anti-vilification laws, here’s something you can do

Update 29 April 2017:

In early April, I wrote to Prime Minister Malcolm Turnbull and Attorney-General George Brandis suggesting that, it they genuinely wanted to ‘strengthen’ Australia’s anti-vilification protections, they should introduce laws prohibiting vilification against lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

In that letter, I included statistics from The State of Homophobia, Biphobia & Transphobia Survey Results, Part 1: Verbal Harassment and Abuse which found that 74% of LGBTIQ Australians experienced homophobic, biphobic, transphobic or intersexphobic verbal abuse at some point in their lives, with 48% reporting anti-LGBTIQ harassment in the past 12 months alone.

Unfortunately, it appears that the Australian Government isn’t particularly interested in doing anything to address this epidemic of anti-LGBTI abuse – there is no LGBTI equivalent to section 18C of the Racial Discrimination Act 1975, and, based on the response I received this week from the Attorney-General’s Department (see below), the Turnbull Government will not introduce one.

Perhaps the most bizarre part of the Government’s letter is the reference to ‘sexual harassment’ provisions within the Sex Discrimination Act 1984, as offering protections against anti-LGBTI vilification. The definition of sexual harassment under that legislation is as follows:

Section 28A

Meaning of sexual harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed…

(2) In this section:

‘conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.”

This definition, and its focus on ‘of a sexual nature’, means that while LGBTI people are protected against ‘sexual harassment’ under the Sex Discrimination Act 1984, only a small fraction of the anti-LGBTI verbal abuse that is experienced by LGBTI Australians would be covered by this provision – the vast majority of harassment and abuse, including nearly all of the comments reported in The State of Homophobia, Biphobia & Transphobia, would remain entirely legal.

Of course, given their ongoing refusal to pass marriage equality without a completely unnecessary, wasteful and divisive plebiscite, and the attacks on and dismantling of the Safe Schools program, it was always unlikely that the Turnbull Government would do anything substantive to tackle anti-LGBTIQ verbal harassment and abuse.

Still, now that they have been presented with the evidence, they can no longer claim that there is no problem with homophobia, biphobia, transphobia and intersexphobia in Australia. They know it exists – they are simply choosing to ignore it.

Here is the full response from the Attorney-General’s Department:

27 April 2017

Dear Mr Lawrie

Thank you for your correspondent of 3 April 2017 to the Prime Minister, the Hon Malcolm Turnbull MP, regarding Commonwealth anti-vilification laws. Your letter was referred to the Attorney-General, Senator the Hon George Brandis QC, as the matter falls within his portfolio. The Attorney-General has asked me to respond on his behalf.

The Australian Government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on these grounds in a range of areas of public life.

The Sex Discrimination Act also prohibits sexual harassment in a number of areas of public life. Under the definition of sexual harassment, the circumstances to be taken into account include, but are not limited to, the sex, sexual orientation, gender identity and intersex status of the person harassed.

Criminal laws in Australia generally prohibit conduct which threatens or results in harm to a person, regardless of the individual attributes of the victim.

The Australian Government considers these protections, in conjunction with other protections under Australian law, are appropriate in addressing the behaviour outlined in your letter.

Thank you for bringing your concerns to the attention of the Australian Government.

Yours sincerely

[Name withheld]

Director, Human Rights

Civil Law Unit

 

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Original Post:

 

The Hon Malcolm Turnbull MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Monday 3 April 2017

Dear Prime Minister

Commonwealth Anti-Vilification Laws

I am writing to you about a subject that has preoccupied your Government in recent weeks: Commonwealth anti-vilification laws.

However, I do not wish to re-litigate the debate over your proposed amendments to section 18C of the Racial Discrimination Act 1975, especially now that those changes have been comprehensively rejected by the Senate (happily from my perspective, presumably less so from yours).

Instead, I wish to discuss an area where it appears that, at least based on your public statements, you and I agree.

Specifically, during the course of the debate around 18C, two key principles emerged from media releases and speeches made both by yourself, and by the Attorney-General, Senator the Hon George Brandis.

First, your Government believes that there is a place for legal protections against vilification.

This is apparent not just from the fact that you chose to try to amend section 18C, rather than repeal it (therefore acknowledging the overall legitimacy of anti-vilification laws), but also through your comments at the joint Press Conference on 21 March, announcing the changes:

“We are defending the law by making it clearer. We are defending Australians against racial vilification.”

And from the Attorney-General’s Second Reading Speech:

“I have always believed that there is no inconsistency whatever between effective, appropriately-worded racial vilification laws, and the robust defence of freedom of speech.”

Second, your Government believes that such legal protections against vilification should be ‘strong’.

Indeed, both you and your Attorney-General repeatedly claimed that the Human Rights Legislation Amendment Bill 2017 would strengthen existing vilification protections.

At your joint Press Conference you stated that “[W]e are announcing changes to the Racial Discrimination Act and the Human Rights Commission legislation, which will strengthen the protection of Australians from racial vilification” and that it was time to “defend Australians with effective laws, clear laws, against racial vilification.”

The Attorney-General similarly claimed in his Second Reading Speech that the changes were being proposed “to strengthen its anti-vilification provisions.”

Taking you at your word(s) then, you both believe there is a place for anti-vilification laws, and that such laws should be strong and effective.

I agree with these two principles (even if we disagree on how they should be reflected in the Racial Discrimination Act).

Which is why, now that your changes to section 18C have been defeated, I write to suggest an additional way in which you can protect Australians against vilification: by introducing anti-vilification protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

As you would be aware, there is currently no Commonwealth protection against vilification on the basis of sexual orientation, gender identity or intersex status.

Nor are there LGBTI anti-vilification protections under the laws of Victoria, South Australia, Western Australia or the Northern Territory (meanwhile, the protections that exist under NSW law are overly-narrow, and fail to protect some parts of the community).

This leaves a significant proportion of Australia’s LGBTI communities without any legal protections against homophobic, biphobic, transphobic and intersexphobic vilification.

Unfortunately, such vilification remains all-too-common in Australia.

In a survey that I conducted at the start of 2017, 74% of LGBTIQ respondents reported being subject to anti-LGBTIQ verbal abuse or harassment at some point during their lives[i].

Disturbingly, 48% of respondents reported that at least one instance of such abuse or harassment occurred during the last 12 months.

These figures were even higher for some sections of the LGBTIQ community:

  • 68.2% of trans respondents
  • 65% of Aboriginal and/or Torres Strait Islander LGBTIQ respondents, and
  • 74.5% of LGBTIQ respondents aged 24 or under

reported verbal abuse or harassment in the past 12 months alone.

I hope that you agree these rates of homophobic, biphobic, transphobic and intersexphobic verbal abuse are simply unacceptable.

And if you are unconvinced by the raw numbers, then I suggest that you read the even rawer, and in some cases quite horrific, examples of anti-LGBTIQ harassment shared by the 1,672 people who took part in my survey (attached).

The challenge for you is that this abuse is happening on your watch.

If you genuinely believe there is a place for anti-vilification laws, and that such laws should be strong and effective, then I believe you should respond to this epidemic of anti-LGBTI verbal abuse and harassment with Commonwealth anti-vilification laws covering sexual orientation, gender identity and intersex status, on an equivalent basis to existing racial vilification protections.

After all, if racist vilification is considered so serious as to require legislative intervention, then there is no logical reason why homophobic, biphobic, transphobic and intersexphobic vilification should not be similarly prohibited.

If you do not take action to address this issue, then by implication you are suggesting that you and your Government find anti-LGBTIQ vilification to be less offensive, and arguably more ‘acceptable’, than racial vilification.

In conclusion, I will return to another comment made by you at the joint Press Conference on 21 March:

“Ensuring Australians are protected from racial vilification, likewise, is part of that mutual respect of which I often speak, which is the foundation of our success as the greatest and most successful multicultural society in the world.”

My question to you is: do you believe that lesbian, gay, bisexual, transgender and intersex Australians also deserve ‘mutual respect’?

If you do, then please take action to protect LGBTI Australians from the homophobic, biphobic, transphobic and intersexphobic vilification that far-too-frequently mars our own participation in the country you currently lead.

Sincerely

Alastair Lawrie

Cc Senator the Hon George Brandis

Attorney-General

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

Malcolm Turnbull Hands

Whether LGBTI Australians receive anti-vilification protections under Commonwealth law is now in Malcolm Turnbull’s hands.

Footnotes:

[i] For full results, see The State of Homophobia, Biphobia & Transphobia, Survey Results Part 1: Verbal Harassment and Abuse

An LGBTI Agenda for NSW

Today marks exactly two years until the next NSW State election (scheduled for Saturday 23 March, 2019).

 

Despite the fact we are half-way through it, there has been a distinct lack of progress on policy and law reform issues that affect NSW’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities during the current term of Parliament.

 

This is in marked contrast to the previous term – which saw the abolition of the homosexual advance defence (or ‘gay panic’ defence), as well as the establishment of a framework to expunge historical convictions for gay sex offences.

 

The parliamentary term before that was even more productive, with a suite of measures for rainbow families (including the recognition of lesbian co-parents, equal access to assisted reproductive technology and altruistic surrogacy, and the introduction of same-sex adoption) as well as the establishment of the registered relationships scheme.

 

With a (relatively) new Premier in Gladys Berejiklian, now is the time for the Liberal-National Government specifically, and the NSW Parliament generally, to take action to remedy their disappointing recent lack of activity.

 

Here are 12 issues, in no particular order, which I believe need to be addressed as a matter of priority – and if Premier Berejiklian won’t fix them in the next 24 months, then they must be on the agenda of whoever forms government in March 2019.

 

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The first four issues relate to the state’s fundamentally broken anti-discrimination laws, with the Anti-Discrimination Act 1977 now one of, if not, the worst LGBTI anti-discrimination regime in the country[i].

 

  1. Include bisexual people in anti-discrimination laws

 

NSW was actually the first jurisdiction in Australia to introduce anti-discrimination protections on the basis of homosexuality, in 1982.

 

However, 35 years later and these laws still do not cover bisexuality – meaning bisexual people do not have legal protection against discrimination under state law (although, since 2013, they have enjoyed some protections under the Commonwealth Sex Discrimination Act 1984).

 

NSW is the only state or territory where bisexuality is excluded. This is a gross omission, and one that the NSW Parliament must rectify urgently.

 

  1. Include intersex people in anti-discrimination laws

 

The historic 2013 reforms to the Commonwealth Sex Discrimination Act 1983 also meant that Australia was one of the first jurisdictions in the world to provide explicit anti-discrimination protection to people with intersex traits.

 

Since then, Tasmania, the ACT and more recently South Australia have all included intersex people in their respective anti-discrimination laws. It is time for other jurisdictions to catch up, and that includes NSW.

 

  1. Remove excessive and unjustified religious exceptions

 

The NSW Anti-Discrimination Act 1977 also has the broadest ‘religious exceptions’ in the country. These legal loopholes allow religious organisations to discriminate against lesbian, gay and trans people in a wide variety of circumstances, and even where the organisation itself is in receipt of state or Commonwealth money.

 

The most egregious of these loopholes allow all ‘private educational authorities’, including non-religious schools and colleges, to discriminate against lesbian, gay and trans teachers and students.

 

There is absolutely no justification for a school – any school, religious and non-religious alike – to be able to fire a teacher, or expel a student, on the basis of their sexual orientation or gender identity.

 

All religious exceptions, including those exceptions applying to ‘private educational authorities’, should be abolished beyond those which allow a religious body to appoint ministers of religion or conduct religious ceremonies.

 

  1. Reform anti-vilification offences

 

NSW is one of only four Australian jurisdictions that provide anti-vilification protections to any part of the LGBTI community. But the relevant provisions of the Anti-Discrimination Act 1977 are flawed in two key ways:

 

  • As with anti-discrimination (described above), they do not cover bisexual or intersex people, and
  • The maximum fine for a first time offence of homosexual or transgender vilification is lower than the maximum fine for racial or HIV/AIDS vilification.

 

There is no legitimate reason why racial vilification should be considered more serious than anti-LGBTI vilification so, at the same time as adding bisexuality and intersex status to these provisions, the penalties that apply must also be harmonised.

 

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The following are four equally important law reform and policy issues for the state:

 

  1. Reform access to identity documentation for trans people

 

The current process for transgender people to access new identity documentation in NSW – which requires them to first undergo irreversible sex affirmation surgical procedures – is inappropriate for a number of reasons.

 

This includes the fact it is overly-onerous (including imposing financial and other barriers), and makes an issue that should be one of personal identification into a medical one. It also excludes trans people who do not wish to undergo surgical interventions, and does not provide a process to recognise the identities of non-binary gender diverse people.

 

As suggested in the Member for Sydney Alex Greenwich’s Discussion Paper on this subject[ii], the process should be a simple one, whereby individuals can change their birth certificates and other documentation via statutory declaration, without the need for medical interference.

 

At the same time, the requirement for married persons to divorce prior to obtaining new identity documentation (ie ‘forced trans divorce’) should also be abolished.

 

  1. Ban involuntary sterilisation of intersex infants

 

One of the major human rights abuses occurring in Australia today – not just within the LGBTI community, but across all communities – is the ongoing practice of involuntary, and unnecessary, surgical interventions on intersex children.

 

Usually performed for entirely ‘cosmetic’ reasons – to impose a binary sex on a non-binary body – this is nothing short of child abuse. People born with intersex characteristics should be able to make relevant medical decisions for themselves, rather than have procedures, and agendas, imposed upon them.

 

The NSW Government has a role to play in helping to end this practice within state borders, although ultimately the involuntary sterilisation of intersex infants must also be banned nation-wide.

 

  1. Ban gay conversion therapy

 

Another harmful practice that needs to be stamped out is ‘gay conversion therapy’ (sometimes described as ‘ex-gay therapy’).

 

While thankfully less common that it used to be, this practice – which preys on young and other vulnerable LGBT people who are struggling with their sexual orientation or gender identity, and uses pseudo-science and coercion in an attempt to make them ‘straight’/cisgender – continues today.

 

There is absolutely no evidence that it works, and plenty of evidence that it constitutes extreme psychological abuse, often causing or exacerbating mental health issues such as depression.

 

There are multiple policy options to address this problem; my own preference would be to make both the advertising, and provision, of ‘conversion therapy’ criminal offences. Where this targets people aged under 18, the offence would be aggravated, attracting a higher penalty (and possible imprisonment)[iii].

 

  1. Improve the Relationship Register

 

As Prime Minister Malcolm Turnbull and his Liberal-National Government continue to dither on marriage equality (despite it being both the right thing to do, and overwhelmingly popular), in NSW the primary means to formalise a same-sex relationship remains the relationships register.

 

However, there are two main problems with the ‘register’ as it currently stands:

 

  • Nomenclature: The term ‘registered relationship’ is unappealing, and fails to reflect the fundamental nature of the relationship that it purports to describe. I believe it should be replaced with Queensland’s adopted term: civil partnership.
  • Lack of ceremony. The NSW relationship register also does not provide the option to create a registered relationship/civil partnership via a formally-recognised ceremony. This should also be rectified.

 

Fortunately, the five-year review of the NSW Relationships Register Act 2010 was conducted at the start of last year[iv], meaning this issue should already be on the Government’s radar. Unfortunately, more than 12 months later no progress appears to have been made.

 

**********

 

The following two issues relate to the need to ensure education is LGBTI-inclusive:

 

  1. Expand the Safe Schools program

 

Despite the controversy, stirred up by the homophobic troika of the Australian Christian Lobby, The Australian newspaper and right-wing extremists within the Commonwealth Government, Safe Schools remains at its core an essential anti-bullying program designed to protect vulnerable LGBTI students from harassment and abuse.

 

Whereas the Victorian Government has decided to fund the program itself, and aims to roll it out to all government secondary schools, in NSW the implementation of Safe Schools has been patchy at best, with limited take-up, and future funding in extreme doubt.

 

Whatever the program is called – Safe Schools, Proud Schools (which was a previous NSW initiative) or something else – there is an ongoing need for an anti-bullying program to specifically promote the inclusion of LGBTI students in all NSW schools, and not just those schools who put their hands up to participate.

 

  1. Ensure the PDHPE curriculum includes LGBTI content

 

Contrary to what Lyle Shelton et al might believe, the LGBTI agenda for schools goes far beyond just Safe Schools. There is also a need to ensure the curriculum includes content that is relevant for lesbian, gay, bisexual, transgender and intersex students.

 

One of the key documents that should include this information is the Personal Development, Health and Physical Education (PDHPE) curriculum.

 

The NSW Education Standards Authority is currently preparing a new K-10 PDHPE curriculum. Unfortunately, it does not appear to be genuinely-inclusive of LGBTI students, with only one reference to LGBTI issues (conveniently, all in the same paragraph, on the same page), and inadequate definitions of sexuality/sexual orientation.

 

Fortunately, there is an opportunity to make a submission to the consultation process: full details here. But, irrespective of what the Education Standards Authority recommends, if the PDHPE curriculum does not appropriately include LGBTI students and content, then the Parliament has a responsibility to step in to ensure it is fixed.

 

**********

 

The final two issues do not involve policy or law reform, but do feature ‘borrowing’ ideas from our colleagues south of the Murray River:

 

  1. Appoint an LGBTI Commissioner

 

The appointment of Rowena Allen as Victorian Commissioner for Gender and Sexuality appears to have been a major success, bringing together LGBTI policy oversight in a central point whilst also ensuring that LGBTI inclusion is made a priority across all Government departments and agencies.

 

I believe NSW should adopt a similar model, appointing an LGBTI Commissioner (possibly within the NSW Department of Premier and Cabinet), supported by an equality policy unit, and facilitating LGBTI community representative panels on (at a minimum) health, education and law/justice.

 

  1. Create a Pride Centre

 

Another promising Victorian initiative has been the decision to fund and establish a ‘Pride Centre’, as a focal point for the LGBTI community, and future home for several LGBTI community organisations (with the announcement, just last week, that it will be located in St Kilda).

 

If it acted quickly, the NSW Government could acquire the T2 Building in Taylor Square – just metres from where the 1st Sydney Gay Mardi Gras Parade started in June 1978 – before it is sold off by the City of Sydney. This is an opportunity to use this historic site for purposes that benefit the LGBTI community, and including the possible housing of an LGBTI Museum and/or exhibition space.

 

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This is obviously not an exhaustive list. I’m sure there are issues I have forgotten (sorry), and I’m equally sure that readers of this blog will be able to suggest plenty of additional items (please leave your ideas in the comments below).

 

But the most important point is that, if we are going to achieve LGBTI policy and law reform in the remaining two years of this parliamentary term, we need to be articulating what that agenda looks like.

 

And, just as importantly, if we want to achieve our remaining policy goals in the subsequent term – from 2019 to 2023 – then, with only two years left until the next election, we must be putting forward our demands now.

 

Gladys Berejiklian at Mardi Gras

NSW Premier Gladys Berejiklian at the recent Sydney Gay & Lesbian Mardi Gras Parade. It’s time to back up this symbolic display of support with progress on policies and law reform.

 

Footnotes:

[i] For more, see What’s Wrong With the NSW Anti-Discrimination Act 1977.

[ii] See my submission to that consultation, here: Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate.

[iii] For more on both of the last two topics – intersex sterilization, and gay conversion therapy – see my Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation.

[iv] See my submission to that review, here: Submission to Review of NSW Relationships Register Act 2010.

What’s Wrong With Tasmania’s Anti-Discrimination Act 1998?

 

This is part of a series of posts looking at Australia’s anti-discrimination laws and discussing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex people. The articles on other jurisdictions can be found here.

 

In these posts, I have analysed Commonwealth, state and territory legislation with respect to three main issues:

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage

 

This post will be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice, with only minor amendments needed to improve its anti-vilification provisions (although there is also a risk these laws will be wound back – see below).

 

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Protected Attributes

 

Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.

 

Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex (eb).

 

The definitions of these terms in section 3 are also inclusive:

sexual orientation includes-

(a) heterosexuality; and

(b) homosexuality; and

(c) bisexuality”

 

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism” (noting that this does not require gender diverse people to adopt a binary identity in order to receive protection), and

 

intersex means the status of having physical, hormonal or genetic features that are-

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male”

(with Tasmania only the second jurisdiction, after the Commonwealth, to include intersex as a stand-alone protected attribute, although they have since been joined by the ACT and South Australia).

 

Overall, then, the Tasmanian Anti-Discrimination Act 1998 adopts best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.

 

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Religious Exceptions

 

The Anti-Discrimination Act 1998 is also best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.

 

There are three provisions outlining relevant religious exceptions in the Act:

 

Section 51 “Employment based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.

(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, principles or practices.”

 

Section 51A “Admission of person as student based on religion

(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.

(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.

(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.

(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”

 

Section 52. “Participation in religious observance

A person may discriminate against another person on the ground of religious belief or religious activity in relation to-

(a) the ordination or appointment of a priest; or

(b) the training and education of any person seeking ordination or appointment as a priest; or

(c) the selection or appointment of a person to participate in any religious observance or practice; or

(d) any other act that-

(i) is carried out in accordance with the doctrine of a particular religion; and

(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.”

 

At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.

 

It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex status.

 

In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers).

 

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Anti-Vilification Coverage

 

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong – although, as we shall see below, there is one area of possible improvement, as well as an impending threat that could significantly undermine these laws.

 

There are actually two provisions that prohibit vilification under the Act:

 

Section 17 “Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”

 

Section 19 “Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or activity of the person or any member of the group.”

 

As we saw earlier, sub-sections 16(c), (ea) and (eb) cover sexual orientation, gender identity and intersex, consequently all LGBTI Tasmanians have recourse to the general anti-vilification protection found in section 17(1).

 

Interestingly, however, only sexual orientation is deemed worthy of inclusion in the more serious ‘inciting hatred’ prohibition of section 19. Which leads me to suggest the only possible improvement to the Act in any of the three areas outlined in this post: an amendment to sub-section 19(c) to include gender identity and intersex (which are both equally deserving of this protection).

 

Nevertheless, the anti-vilification protections contained in the Anti-Discrimination Act 1998 are at least the equal of any other state or territory – noting of course that only NSW, Queensland and the ACT have introduced similar protections (with no LGBTI anti-vilification coverage under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory).

 

As indicated earlier, these is an impending threat that could undermine existing Tasmanian anti-vilification protections, and that is a proposed amendment to broaden the ‘public purpose’ defence to both section 17(1) and (19). Currently, section 55 provides that:

 

Public purpose

The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-

(a) a fair report of a public act; or

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act done in good faith for-

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest.”

 

In late 2016, as I have written elsewhere the Hodgman Liberal Government introduced legislation to expand this defence, and specifically to cover:

 

“(1)(c) a public act done in good faith for-

(i) academic, artistic, scientific, religious or research purposes; or

(ii) any other purpose in the public interest” [emphasis added] where

“(2) In this section-

Religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief.”

 

In short, the Tasmanian Government wants to undermine existing anti-vilification laws to make it easier for religious individuals and organisations to “engage in… conduct which offends, humiliates, insults or ridicules another person” and even where it “incite[s] hatred towards, serious contempt for, or severe ridicule or, a person or a group of persons.”

 

It is clear that the most likely targets of this broader ‘right’ to vilify will be lesbian, gay, bisexual and transgender Tasmanians.

 

The Bill has already passed the Legislative Assembly, and it is expected to be considered by the Legislative Council in the second half of 2017.

 

It will be incredibly disappointing, not just to LGBTI Tasmanians but also to people around the country who have an interest in this area, if the Council agrees to change, and significantly limit, what is currently the best anti-discrimination legislation in the country – all to make it easier for religious groups to vilify people on the basis of their sexual orientation, gender identity or intersex status.

 

Hopefully enough Council Members reject this attempt, and in doing so ensure the Tasmanian Anti-Discrimination Act 1998 retains its ‘best practice’ status in relation to all of protected attributes, religious exceptions and anti-vilification coverage.

 

will-hodgman

Will Tasmanian Premier Will Hodgman undermine the best LGBTI anti-discrimination laws in Australia simply to make it easier for religious organisations to vilify people on the basis of their sexual orientation or gender identity?

What’s Wrong With South Australia’s Equal Opportunity Act 1984?

 

This post is part of a series looking at Australia’s anti-discrimination laws, and examining how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination. The other posts in the series can be found here.

 

In particular, they assess Commonwealth, State and Territory legislation in terms of the following three issues:

 

  • Protected Attributes
  • Religious Exceptions, and
  • Anti-Vilification Coverage.

 

Unfortunately, while South Australia has recently expanded the range of people legally protected against discrimination, the Equal Opportunity Act 1984 remains grossly inadequate because of the breadth of religious exceptions it offers, and its complete failure to establish LGBTI vilification offences.

 

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Protected Attributes

 

Section 29 of the Equal Opportunity Act 1984 currently protects lesbian, gay, bisexual and transgender South Australians from discrimination.

 

Sub-section (2a) defines discrimination “on the ground of gender identity” to include (among other things):

 

  • “if he or she treats another unfavourably because the other is or has been a person of a particular gender identity or because of other’s past sex”
  • “if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity”, and
  • “if he or she requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify”.

 

Even though the person discriminating in these clauses is described as either ‘he’ or ‘she’, the protections offered are not limited to people with binary gender identities – therefore, unlike some jurisdictions, South Australia protects all trans people against discrimination.

 

The protections against discrimination “on the ground of sexual orientation” contained in sub-section (3) are similarly broad, and would cover all lesbian, gay and bisexual South Australians.

 

Fortunately, the recently passed Relationships Register Act 2016 will improve this coverage even further when it commences operation in 2017. Firstly, it removes the usage of ‘he or she’ in the definition of discrimination described above (replacing it with ‘the person’, which is clearly far more appropriate).

 

More substantively, the Relationships Register Act 2016 amends the Equal Opportunity Act 1984 to introduce a new protected attribute of ‘intersex status’, with the addition of sub-section 29(4)[i].

 

With this change, South Australia has become only the fourth jurisdiction in Australia – after the Commonwealth, Tasmania and the Australian Capital Territory – to explicitly protect intersex people against discrimination.

 

Summary: The South Australian Equal Opportunity Act 1984 already protects lesbian, gay, bisexual and transgender people against discrimination. With recent amendments that establish a new protected attribute of ‘intersex status’, South Australia has become only the fourth Australian jurisdiction, out of nine, to cover the entire LGBTI community.

 

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Religious Exceptions

 

Unfortunately, while the Equal Opportunity Act 1984 will soon be best practice on protected attributes, in terms of religious exceptions it is anything but.

 

Section 50 sets out an incredibly broad range of circumstances in which religious organisations are legally entitled to discriminate against LGBT South Australians:

 

Religious bodies

(1) This Part does not render unlawful discrimination in relation to-

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(ba) the administration of a body established for religious purposes in accordance with the precepts of that religion; or

(c) any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

While paragraphs (a) and (b) are at least directly related to religious appointments – and therefore somewhat defensible because of their connection to freedom of religion – paragraph (ba) and especially paragraph (c) effectively encourage discrimination by religious organisations in healthcare and other community services.

 

It also allows discrimination in relation to education in religious schools, and therefore overrides the general protections offered to students under section 37, which ostensibly prohibits discrimination with respect to admission as a student, the education or training that is offered to that student, and expelling or otherwise punishing the student.

 

However, the situation is slightly more complicated with respect to teachers in religious schools, with sub-section 34(3) setting out a separate, specific exception in that area:

 

“(3) This Division does not apply to discrimination on the ground of sexual orientation or gender identity in relation to employment or engagement for the purposes of an educational institution if-

(a) the educational institution is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion; and

(b) the educational authority administering the institution has a written policy stating its position in relation to the matter; and

(c) a copy of the policy is given to a person who is to be interviewed for or offered employment with the authority or a teacher who is to be offered engagement as a contractor by the authority; and

(d) a copy of the policy is provided on request, free of charge-

(i) to employees and contractors and prospective employees and contractors of the authority to whom it relates or may relate; and

(ii) to students, prospective students and parents and guardians of students and prospective students of the institution; and

(iii) to other members of the public.”

 

Some may see this as a relatively positive approach, because at the very least it allows everyone to be informed about the policies any particular school adopts. And, admittedly, it is preferable to the carte blanche approach adopted in other states (and especially in New South Wales).

 

However, there are two important qualifications to this ‘benign’ assessment:

 

  • It still allows discrimination against teachers and other employees in religious schools solely on the basis of their gender identity or sexual orientation. This discrimination – which has no connection whatsoever to the ability of LGBT teachers and staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate, and
  • The general religious exception in sub-section 50(c) nevertheless applies (because it covers all sections in the Part, including those applying to employment). Depending on how the interaction between these two provisions has been interpreted by the judiciary, it is possible that religious schools can ‘pick and choose’ the basis on which they discriminate against teachers and employees (and therefore potentially avoid these procedural hurdles altogether).

 

There is one final religious exception which allows discrimination against LGBT South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their gender identity or sexual orientation “if the association is administered in accordance with the precepts of a particular religion and the discrimination is founded on the precepts of that religion.”

 

Summary: The religious exceptions contained in the South Australian Equal Opportunity Act 1984 allow discrimination against LGBT people in a wide range of circumstances, including healthcare, community services, associations and in education (at least in relation to students).

 

LGBT teachers and other staff in religious schools can also be discriminated against simply because of who they are, although whether or not the school must have transparent policies in place to allow such discrimination would depend on judicial interpretation.

 

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Anti-Vilification Coverage

 

This section will be the shortest of this post – because there is none. Lesbian, gay, bisexual, transgender and intersex South Australians have no protection against anti-LGBTI vilification under the Equal Opportunity Act 1984[ii].

 

This is despite the fact that an entire stand-alone act exists with respect to racial vilification (the Racial Vilification Act 1996). Given homophobia, biphobia, transphobia and intersexphobia are just as damaging, and just as harmful, as racism, the lack of equivalent protections against anti-LGBTI vilification is, in my opinion, shameful.

 

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Other Issues

There are a few additional issues in the Equal Opportunity Act 1984 that it would be remiss not to at least mention.

 

On the negative side, there is a very broad ‘inherent requirement’ exception in relation to employment. Sub-section 34(2) provides that:

 

“This Division does not apply to discrimination on the ground of sex, sexual orientation or gender identity in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation or gender identity.”

 

It is difficult to think of many – in fact, any – jobs in which it is an inherent requirement that someone be of a particular sexual orientation or gender identity. It would be interesting to see on what possible basis the drafters attempted to justify this sub-section.

 

Similarly, sub-section 34(4) allows discrimination in employment against transgender people generally, and non-binary gender diverse people in particular, on the basis of their appearance, stating that:

 

“This Division does not apply to discrimination on the ground of gender identity in relation to employment or engagement if the discrimination is for the purposes of enforcing standards of appearance and dress reasonably required for the employment or engagement.”

 

Once again, it is hard to see how such discrimination can possibly be justified, and I would argue that both sub-sections (34(2) and (4)) should be repealed.

 

On the other hand, there are two exceptions that allow positive discrimination in favour of LGBTI people.

 

The first, in sub-section 35(2a), permits LGBT-specific associations to be created (for “persons of a particular gender identity” or for “persons of a particular sexual orientation (other than heterosexuality)”, noting that heterosexuality remains privileged within Australian society).

 

The second, in section 47, authorises actions designed to overcome discrimination against minority groups:

 

Measures intended to achieve equality

This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of a particular sex, sexual orientation or gender identity, have equal opportunities with, respectively, all other persons, in circumstances to which this Part applies.”

 

Nevertheless, while these final two provisions are welcome, they do not negate the harmful aspects of the Act, including its overly-generous religious exceptions, and the complete lack of anti-vilification coverage for LGBTI South Australians.

 

In the lead-up to next year’s election, hopefully all sides of politics acknowledge these major flaws and work together to rectify them as a matter of priority.

 

jayweatherill

With the next election due in March 2018, South Australian Premier Jay Weatherill has only months left to fix the broken Equal Opportunity Act 1984.

 

Footnotes:

[i] “(4) For the purposes of this Act, a person discriminates on the ground of intersex status-

(a) if the person treats another unfavourably because of the other’s intersex status or past intersex status; or

(b) if the person treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and-

(i) the nature of the requirement is such that a substantially higher proportion of persons who are not of intersex status complies, or is able to comply, with the requirement than of those of intersex status; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if the person treats another unfavourably on the basis of a characteristic that appertains generally to persons of intersex status, or presumed intersex status, or on the basis of a presumed characteristic that is generally imputed to persons of intersex status; or

(d) if the person treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstances described in the preceding paragraphs.”

[ii] Although South Australia is not alone in this regard – there are also no LGBTI vilification protections in Commonwealth law, and in Victoria, Western Australia and the Northern Territory.

Submission to Inquiry into Freedom of Speech in Australia

Update 1 March 2017:

The Joint Committee on Human Rights handed down its report on Freedom of Speech in Australia yesterday (Tuesday 28 February). A full copy of the report can be found here.

On the positive side, the Committee did not make formal recommendations to wind back, or even repeal, section 18C of the Racial Discrimination Act 1975, although it did include a number of options that, if implemented, would effectively undermine racial vilification protections in this country.

On the negative side, and despite accepting and publishing my submission (see below), the Committee apparently failed to consider the issue of whether anti-vilification laws should be expanded to cover other groups who are currently not protected in Commonwealth law, including lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

Disappointingly, Labor members did not refer to this issue in their additional comments, nor did the Australian Greens as part of their dissenting report. All of which means that the campaign to secure Commonwealth LGBTI anti-vilification laws that are equivalent to section 18C must continue.

 

Original post:

As many of you would be aware, Commonwealth Parliament is currently conducting an inquiry into ‘freedom of speech in Australia’ – specifically whether the racial vilification protections offered by section 18C in the Racial Discrimination Act 1975 should be restricted.

The following is my submission to this inquiry, arguing that not only is there insufficient justification to amend (or even repeal) 18C, but that Parliament should instead be considering how to better protect lesbian, gay, bisexual, transgender and intersex Australians against vilification.

Full details of the Inquiry, including the 374 submissions (and counting) that have been published, can be found here.

 

**********

 

Parliamentary Joint Committee on Human Rights

18Cinquiry@aph.gov.au

 

Dear Committee Members

Submission to Inquiry into Freedom of Speech in Australia

Thank you for the opportunity to provide a submission to this inquiry into what is an important issue.

 

In this submission I will primarily focus on terms of reference 1 (concerning sections 18C and 18D of the Racial Discrimination Act 1975) and 4 (how the Australian Human Rights Commission can better protect freedom of speech), rather than terms of reference 2 (regarding the processes that apply to complaint handling) or 3 (‘soliciting complaints’).

 

I am writing this submission from the perspective of an Australian with Anglo-Celtic heritage, and therefore someone who is unlikely to be subject to racial vilification in this country.

 

However, I also write as an out gay man, who has witnessed, and experienced, vilification on the basis of sexual orientation. Those experiences particularly inform the latter part of this submission.

 

**********

 

Term of Reference 1: Whether the operation of Part IIA of the Racial Discrimination Act 1975 (Cth) imposes unreasonable restrictions upon freedom of speech, and in particular whether, and if so how, ss 18C and 18D should be reformed.

 

No law is ever perfect. Each piece of legislation that exists today could probably be better drafted in some way (or indeed many ways).

 

That statement applies to the Racial Discrimination Act 1975, in the same manner as any other law, including its provisions that make racial vilification unlawful.

 

As the Committee would be aware, section 18C stipulates that:

 

“(1) It is unlawful for a person to do an act, otherwise than in private, if:

  • the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
  • the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

 

As I wrote in my submission to the Government’s Exposure Draft Freedom of Speech (Repeal of s.18C) Bill 2014, “I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).”

 

It is at least possible to argue that the type of conduct that is, prima facie, captured by these terms – insult and offend – is too broad.

 

But, as I then went on to observe in that same submission, “it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended.”

 

And it is on that second point that I believe the case to amend or even repeal section 18C falls down. Because I am yet to be convinced that the drafting of 18C itself has caused serious problems in the operation of Australia’s racial vilification framework.[i]

 

There are three main arguments that support this conclusion.

 

First, racial vilification generally, and section 18C specifically, has been subject to considerable public debate since the election of the then-Abbott Liberal-National Government in September 2013.

 

Many critics have argued, at times vociferously, that the section as drafted is an unacceptable infringement upon the right to free speech. If such a claim were true, then these same critics should be able to provide examples of speech that are unlawful currently, that would be lawful if this section was reformed, and which are clearly in the public interest to be heard.

 

I am unaware of anyone who has, over those past three years, been able to provide a compelling example. That failure seriously undermines the case for change.

 

Second, I believe it is equally difficult to find an example of section 18C being applied incorrectly in case law, such that speech that should have been lawful was, ultimately, found to be unlawful by the courts.

 

The most famous (or infamous) case that is often cited is Eaton v Bolt [2011] FCA 1103. However, as I observed in my submission to the Government’s Freedom of Speech (Repeal of s.18C) Bill 2014, “it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.”

 

I went on to write:

 

“In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

 

“Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

 

“In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

“In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.”

That remains my opinion today.

 

Third, it is impossible to argue for amendment to, or repeal of, section 18C in isolation, and without considering the generous exemptions provided by section 18D:

 

“Section 18C does not render unlawful anything said or done reasonably and in good faith:

  • in the performance, exhibition or distribution of an artistic work; or
  • in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
  • in making or publishing:
    1. a fair and accurate report of any event or matter of public interest; or
    2. a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”

 

These provisions, and especially the protections for ‘fair comment’ on a ‘matter of public interest’ if it is ‘an expression of a genuine belief’, cover an extremely wide range of potential statements where they otherwise offend, insult, humiliate or intimidate other persons or groups on the basis of their race, colour or national or ethnic origin.

 

Once again, it is up to advocates for change to the existing law to provide examples of speech that remains unlawful, despite section 18D, and that it is clearly in the public interest to hear. As with section 18C discussed above, I am not aware of any such example.

 

Recommendation 1: Sections 18C and 18D of the Racial Discrimination Act 1975 should remain as currently drafted.

 

In the absence of a compelling case to amend or repeal sections 18C and 18D of the Racial Discrimination Act 1975, I would like to suggest an alternative area of anti-vilification law reform for which there is, from my perspective, a clear and urgent need for reform: the introduction of vilification protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

 

Despite the almost relentless criticism of racial vilification laws over the past three years, and especially in certain mainstream media publications in 2016, there has been comparative silence, or near silence, about the fact there are currently no Commonwealth protections against vilification on the basis of sexual orientation, gender identity or intersex status.

 

The Commonwealth is not alone in failing to offer these protections: only NSW, Queensland, Tasmania and the ACT have laws that expressly prohibit anti-LGBTI vilification[ii].

 

This is an issue that I have repeatedly attempted to draw attention to, via multiple policy submissions (including the already-mentioned submission on the Government’s Exposure Draft Freedom of Speech (Repeal of s.18C) Bill 2014, a submission to the Australian Law Reform Commission’s Inquiry into Traditional Rights and Freedoms, and a submission in response to their Interim Report, as well as a submission to the Australian Human Rights Commission’s consultation on Rights & Responsibilities, led by the now-Member for Goldstein, Tim Wilson).

 

In each process I have made the case that, if race-based vilification is considered legally unacceptable, then so too should be homophobic, biphobic, transphobic and intersexphobic vilification.

 

As I wrote in the Star Observer newspaper in May 2014[iii]:

 

“[T]here is no conceptual or philosophical reason why racial vilification should be deemed to be so serious a problem as to require a legal complaints and resolution scheme, but vilification based on homophobia, transphobia, biphobia and anti-intersex prejudice should not.

 

“After all, both groups – Australians of diverse racial backgrounds and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

 

“For LGBTI people, this includes comments made in Federal Parliament itself. Over the past [15] years, we have had three… senators rhetorically link marriage equality with bestiality, repeat claims that allowing two men or women to wed will create another stolen generation, and smear an openly-gay High Court Justice with allegations of paedophilia (apparently solely on the basis of the judge’s homosexuality).

 

“Vilification based on sexual orientation, gender identity or intersex status occurs all-too-frequently at the everyday ‘street level’, too. Anyone who is visibly identifiable as LGBTI, including non-LGBTI people who are perceived as being LGBTI by others, or indeed anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much worse.

 

“Such fears are grounded in hard statistics. A 2003 NSW Attorney-General’s Report found that in the previous 12 months, 56 per cent of gay men and lesbians had been subject to one of more forms of homophobic abuse, harassment or violence. And that’s before we take into account the disturbingly high number of gay and bisexual men violently murdered in Sydney during the 1980s and 1990s, but whose deaths are only now being properly investigated.

 

“The consequences of anti-LGBTI vilification are also reflected in figures that show that LGBTI Australians continue to experience disproportionately high rates of mental health issues, including depression, self-harm and, most tragically, suicide. It is not hard to draw a link between public denigration and contempt for a person’s identity or status, and poorer personal mental health.

 

“So, if Australians of diverse racial backgrounds and LGBTI people are both subject to vilification, and both experience negative outcomes as a result, why shouldn’t both vulnerable groups have the same level of legal protection?”

 

That question remains relevant to this Committee today, and especially to this particular Inquiry.

 

I would argue that, given the harms of homophobic, biphobic, transphobic and intersexphobic vilification outlined above, rather than recommending amendment to or repeal of sections 18C and 18D of the Racial Vilification Act 1975, the Committee should instead support the introduction of equivalent provisions in the Sex Discrimination Act 1984 to prohibit vilification against LGBTI Australians.

 

Recommendation 2: The Sex Discrimination Act 1984 should be amended to make vilification on the basis of sexual orientation, gender identity or intersex status unlawful. These provisions should be drafted on the same basis as existing prohibitions against racial vilification in the Racial Discrimination Act 1975.

 

**********

 

Term of Reference 4: Whether the operation of the [Australian Human Rights] Commission should be otherwise reformed in order better to protect freedom of speech and, if so, what those reforms should be.

 

I would like to make one final point, related to the previous discussion, about the terms of reference to this inquiry, and the overall direction of anti-vilification reform in Australia.

 

Namely, there continues to be disproportionate focus on freedom of speech, with little attention paid to the potential harmful outcomes from unfettered or completely unregulated speech.

 

This ideological bent is already apparent in the term of reference highlighted above (focused on free speech and not its effects), but is revealed even more clearly by examining the paragraph in the Terms of Reference that follows:

 

“The Committee is asked, in particular, to consider the recommendations of the Australian Law Reform Commission in its Final Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws [ALRC Report 129 – December 2015], in particular Chapter 4 – “Freedom of Speech”.

 

Turning to that Report, the relevant recommendation is found at 4.251 on page 126:

 

“The ALRC concludes that the following Commonwealth laws should be further reviewed to determine whether they unjustifiably limit freedom of speech:

  • Pt IIA of the RDA, in conjunction with consideration of anti-vilification laws more generally.”

 

That last phrase – “in conjunction with consideration of anti-vilification laws more generally” – only fully makes sense when considered in the context of the preceding discussion in paragraphs 4.207 to 4.209 on page 119 of the Report:

 

“The ALRC has not established whether s 18C of the RDA has, in practice, caused unjustifiable interferences with freedom of speech. However, it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.

 

“In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. The provision appears broader than is required under international law to prohibit the advocacy of racial hatred and broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.

 

“However, any such review should not take place in isolation. Stakeholders put forward arguments that people should also be protected from vilification on other grounds, including sex, sexual orientation and gender identity” (emphasis added).

 

In short, the Government asked the Australian Law Reform Commission to examine traditional rights and freedoms, including freedom of speech. The ALRC then considered sections 18C and 18D in detail, but was not in a position to determine whether or not these sections unjustifiably interfered with freedom of speech.

 

Instead, the ALRC recommended that this part of the Racial Discrimination Act 1975 be reviewed further – as part of a broader review of anti-vilification laws, including whether these protections should be extended to others grounds, such as sexual orientation and gender identity.

 

However, in establishing this Inquiry, the Government appears to have done the exact opposite: it has focused solely on the protection of freedom of speech, and not at all on the consequences of unfettered free speech, ignoring any possible need to introduce additional protected attributes in Commonwealth anti-vilification law.

 

Once again, I would urge the Committee – and through you, the Parliament – to consider the issue of whether LGBTI anti-vilification protections should be established in Commonwealth legislation, and in this way to give full effect to the recommendation of the ALRC.

 

**********

 

Thank you again for the opportunity to provide this submission, and for taking it into account as part of the Committee’s deliberations.

 

Should you have any questions, or to request additional information, please do not hesitate to contact me at the contact details provided with this submission.

 

Sincerely,

Alastair Lawrie

Friday 9 December 2016

 

Footnotes:

[i] Please note here that, as stated in the introduction, I am not commenting on the processes that apply to complaint handling, which includes complaints with little or no substance, as well as the timelines involved in resolving complaints. Other individuals and/or organisations are better placed to make recommendations on those particular matters (although I suspect it may involve a combination of procedural changes, and increased funding for the Commission and Courts to enable the existing caseload to be dealt with in a more timely manner).

[ii] Victoria, Western Australia and South Australia have racial vilification laws but no LGBTI equivalent, while the Northern Territory has neither.

[iii] Star Observer, “Where’s the LGBTI Equivalent of Section 18C?” 19 May 2014.

What’s Wrong With the Queensland Anti-Discrimination Act 1991?

This post is part of a series examining the anti-discrimination laws that exist in each Australian jurisdiction and analysing how well, or how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination. Other posts in the series can be found here.

 

Specifically, each post considers three main aspects of LGBTI anti-discrimination legislation:

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

 

Contrary to what some might expect, Queensland’s laws are at least ‘average’, and in some cases, particularly in relation to anti-vilification laws, ‘better than average’, across these three areas. Unfortunately, that says more about the major flaws that exist across most anti-discrimination laws in Australia than it necessarily does about the Anti-Discrimination Act 1991 (‘the Act’) itself.

 

There are still significant problems that must be addressed with this legislation, beginning with the issue of who is – and isn’t – covered.

 

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Protected Attributes

 

Like most of its counterparts in other states, Queensland’s Anti-Discrimination Act does not protect all parts of the LGBTI community from discrimination.

 

On the positive side, it does cover all lesbian, gay and bisexual people – with discrimination on the basis of ‘sexuality’ prohibited in section 7 of the Act (defined as “sexuality means heterosexuality, homosexuality or bisexuality” in the Dictionary found in the Schedule).

 

On the less positive side, it only covers some transgender people, and not others. That is because, while section 7 also includes ‘gender identity’, the Act’s definition of this term is out-dated:

 

“gender identity, in relation to a person, means that the person-

(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or

(b) is of indeterminate sex and seeks to live as a member of a particular sex.”

 

While this does protect transgender people who were previously identified as male but now identify as female (and vice-versa), it does not include non-binary trans people. In order to rectify this situation, the Act’s definition of gender identity should be updated to reflect the definition used in the Commonwealth Sex Discrimination Act 1984[i].

 

Even worse off than transgender Queenslanders, however, are people with intersex traits – while part (b) of the definition of ‘gender identity’ may apply to some intersex people in limited circumstances, there is no stand-alone protected attribute for intersex people and therefore no clear-cut protection against discrimination for them.

 

Again, this could be rectified with the introduction of intersex status as a protected attribute, using the definition of ‘intersex status’ as featured in the Commonwealth Sex Discrimination Act 1984[ii].

 

Overall: While the Queensland Anti-Discrimination Act 1991 does protect lesbian, gay and bisexual people, and some transgender people, from discrimination, it leaves other trans people (especially those whose identity is non-binary) and most intersex people out in the cold. This should be fixed as a matter of priority, by updating the definition of gender identity, and adding intersex status as a protected attribute.

 

**********

 

Religious Exceptions

 

Queensland has adopted a unique approach to religious exceptions through the Anti-Discrimination Act 1991, in which case I will spend more time than normal discussing this element.

 

The primary religious exception is found in section 109:

 

“Religious bodies

(1) The Act does not apply in relation to-

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or

(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or

(d) unless section 90 (Accommodation with religious purposes) applies – an act by a body established for religious purposes if the act is –

(i) in accordance with the doctrine of the religion concerned; and

(ii) necessary to avoid offending the religious sensitivities of people of the religion.

(2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area.”

 

The first three sub-sections ((a), (b) and (c)) are at least concerned with the appointment of ministers of religion, or the conduct of religious celebrations, and are therefore more likely to be excusable on the basis of protecting ‘religious freedom’.

 

Unfortunately, the wording used in sub-section (d) – “in accordance with the doctrine of the religion concerned and necessary to avoid offending the religious sensitivities of people of the religion” – is incredibly broad, and permits discrimination against a wide range of people in terms of service delivery.

 

However, sub-section (2) is unusual and, as far as I can tell, not replicated in any other state or territory legislation. In essence, it provides that religious bodies cannot discriminate against employees unless their role is directly connected with ‘religious observance or practice’. It also means religious schools cannot discriminate against students on the basis of their sexuality or gender identity[iii].

 

If section 109 was the only source of religious exceptions in the legislation, Queensland’s Act would almost be assessed as positive. However, there are other sections that complicate this assessment.

 

Chief among them is section 25:

 

“Genuine occupational requirements

(1) A person may impose genuine occupational requirements for a position.

Examples of genuine requirements for a position-

…Example 4-

Employing persons of a particular religion to teach in a school established for students of the particular religion

(2) Subsection (3) applies in relation to-

(a) work for an educational institution (an employer) under the direction or control of a body established for religious purposes; or

(b) any other work for a body established for religious purposes (also an employer) if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs.

(3) It is not unlawful for an employer to discriminate with respect to a matter that is otherwise prohibited under section 14 or 15, in a way that is not unreasonable, against a person if-

(a) the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs-

(i) during a selection process; or

(ii) in the course of the person’s work; or

(iii) in doing something connected with the person’s work; and

Example for paragraph (a)

A staff member openly acts in a way contrary to a requirement imposed by the staff member’s employer in his or her contract of employment, that the staff member abstain from acting in a way openly contrary to the employer’s religious beliefs in the course of, or in connection with the staff member’s employment.

(b) it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person’s work, act in a way consistent with the employer’s religious beliefs.

(4) Subsection (3) does not authorise the seeking of information contrary to section 124[iv].

(5) For subsection (3), whether the discrimination is not unreasonable depends on all the circumstances of the case, including, for example, the following-

(a) whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions;

(b) the consequences for both the person and the employer should the discrimination happen or not happen.

(6) Subsection (3) does not apply to discrimination on the basis of age, race or impairment.

(7) To remove any doubt, it is declared that subsection (3) does not affect a provision of an agreement with respect to work to which subsection (3) applies, under which the employer agrees not to discriminate in a particular way.

(8) In this section-

religion includes religious affiliation, beliefs and activities.”

 

That is obviously a lot to take in. So here are my three key observations:

 

  • This section expands the religious exceptions offered under section 109, so that religious bodies can discriminate on the basis of sexuality and gender identity against teachers and other staff in schools generally, but against employees in other religious organisations only “if the work genuinely and necessarily involves adhering to and communicating the body’s religious beliefs”.
  • In both cases this is limited by a potentially vague ‘reasonableness test’ (determining “whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person’s actions”), and
  • In both cases it is also limited by a ‘Don’t Ask, Don’t Tell’ clause – discrimination is only permitted where “the person openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs” and the religious school or body cannot ask about sexuality or gender identity. This would therefore protect teachers or other staff who did not discuss their sexual orientation at their school or workplace[v].

 

Of course, as even the US Government and Military has eventually been forced to concede, ‘Don’t Ask, Don’t Tell’ is a terrible policy, ‘invisibilising’ LGBT people in the workplace, forcing them to deny who they are and silencing them in everyday conversations (for example, gay teachers would not be able to openly acknowledge their partners at all in the classroom or even in the staffroom). It also exposes LGBT employees to potential harassment and bullying.

 

‘Don’t Ask, Don’t Tell’ is also a terrible policy with respect to LGBT students, because it denies them visible role models to look up to, or to seek relevant information from.

 

But, and here is the extraordinary part, these exceptions – allowing religious schools and other bodies to discriminate against ‘out’ lesbian, gay, bisexual and transgender employees – are actually the second-best religious exceptions in Australia (behind only Tasmania), because they don’t allow these organisations to explicitly deny employment solely on the basis of sexuality or gender identity.

 

The other, much more unambiguously positive part of the Act’s religious exceptions is that section 25 does not apply to students – which means that, while a religious school can reject students who are not from a particular religion, they cannot reject students on the basis of their sexuality or gender identity.

 

Overall: Queensland’s approach to religious exceptions is unique, and its protection of LGBT students against discrimination is to be welcomed. However, other parts of the Anti-Discrimination Act 1991 provide overly-generous rights to religious schools and other bodies to discriminate against LGBT employees, and people accessing services, and these should be significantly curtailed.

 

Specifically, subsection 109(1)(d), which allows discrimination on the basis of sexuality and gender identity in relation to service-provision, should be repealed.

 

And, while the limitations on discrimination in relation to employment (including a ‘reasonableness test’ and a ‘Don’t Ask, Don’t Tell’ clause) might mean Queensland’s legislation is better than most, permitting discrimination in such circumstances is still unacceptable in the 21st century, meaning section 25 should ultimately also be abolished.

 

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Anti-Vilification Coverage

 

Queensland is one of only four Australian jurisdictions to provide anti-vilification protections to LGBT people – the others being NSW, the ACT and Tasmania (noting that Commonwealth anti-vilification law only applies to race).

 

And unlike NSW, the Queensland Anti-Discrimination Act treats all types of prohibited vilification exactly the same – establishing vilification on the basis of race, religion, sexuality and gender identity in the same section (124A)[vi], and creating the offence of serious racial, religious, sexuality or gender identity vilification in another (section 131A).

 

This also means that the same procedures are used, and that the same penalties apply (“for an individual – 70 penalty units or 6 months imprisonment; or for a corporation – 350 penalty units”), which are both positive features.

 

Of course, given the out-dated definition of gender identity used, and the Act’s exclusion of intersex status, not all parts of Queensland’s LGBTI community are currently protected against vilification – although this could be rectified at the same time as the protected attributes, described earlier.

 

One other, relatively minor, fault that should also be corrected is that, while the offences themselves cover sexuality and gender identity alongside race and religion, the titles of the relevant Parts or Chapters do not (“Part 4 Racial and religious vilification” and “Chapter 5A Serious racial and religious vilification”).

 

This obviously does not impact on the substantive rights involved. However, it may be misleading to a casual reader of the legislation, and in some cases may cause people to mistakenly believe that they are not protected against vilification. As a result, it would be preferable if these titles were renamed to be genuinely inclusive.

 

Overall: Queensland’s anti-vilification protections are comparatively strong, but could be further strengthened by updating the definition of gender identity, adding intersex status, and ensuring that the titles of relevant Parts/Chapters are inclusive and not potentially misleading.

 

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Other Issues

 

There are two additional serious problems with the Anti-Discrimination Act 1991, and it would be negligent to conclude this analysis without addressing them.

 

The first is the truly awful subsection 28(1), which states:

 

“Work with children

(1) It is not unlawful to discriminate on the basis of lawful sexual activity[vii] or gender identity against a person with respect to a matter that is otherwise prohibited under subdivision 1 if-

(a) the work involves the care or instruction of minors; and

(b) the discrimination is reasonably necessary to protect the physical, psychological or emotional wellbeing of minors having full regard to all the relevant circumstances of the case, including the person’s actions.”

 

This is genuinely appalling – the very law that is supposed to protect transgender people against discrimination implies that trans employees may be unsuitable to work with children, and could even be a threat to the ‘physical, psychological or emotional wellbeing of minors’.

 

There was never a time that such a prejudiced subsection would have been acceptable, and it most definitely is not today – there is no excuse for the Palaszczuk Labor Government to leave this provision in place today.

 

The second additional flaw is found in section 45A, which states that the protection against discrimination in goods and services, located in section 46, “does not apply to the provision of assisted reproductive technology services if the discrimination is on the basis of relationship status or sexuality.”

 

Again, there can be no justification for such discrimination against lesbian, gay and bisexual people in terms of their access to in-vitro fertilisation, artificial insemination or gamete, zygote or embryo transfer. This section must also be repealed as part of the overall much-needed updating of the Queensland Anti-Discrimination Act 1991.

 

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Footnotes:

[i] Defined in section 4 of that Act as “gender identity means the gender-related identity, appearance or mannerism or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

[ii] Defined in section 4 of that Act as “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[iii] Although section 42 does allow religious schools to discriminate against “applicants who are not of the particular sex or religion”. A similar provision allows religious boarding schools to discriminate on the basis of sex or religion as well (section 89).

[iv] “124 Unnecessary information

(1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.”

[v] Without looking at any relevant case law, it is unclear how well, or poorly, the ‘Don’t Ask, Don’t Tell’ approach serves transgender people in the workplace.

[vi] “Section 124A Vilification on grounds of race, religion, sexuality or gender identity unlawful

(1) A person must 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, religion, sexuality or gender identity of the person or members of the group.

(2) Section (1) does not make unlawful-

(a) the publication of a fair report of a public act mentioned in subsection (1); or

(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.”

[vii] The Act defines lawful sexual activity as “means a person’s status as a lawfully employed sex worker, whether or not self-employed”.