Category Archives: LGBTI anti-vilification

An LGBTI Agenda for NSW

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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 1984 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.

 

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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.

 

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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?

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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.

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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 variations of sex characteristics (eb) [noting that Intersex Human Rights Australia’s position is that this last attribute should simply be ‘sex characteristics’ rather than intersex variations of sex characteristics, in line with the Yogyakarta Principles plus 10].

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 of other gender-related characteristics of an individual including gender expression (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and may include being transgender or transsexual”

“gender expression means any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behavioural patterns, names and personal references that manifest or express gender or gender identity”

“sex characteristics means a person’s physical, hormonal or genetic features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, genes, hormones, and secondary sex characteristics”.

Overall, the Tasmanian Anti-Discrimination Act 1998 adopts close to 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 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 variations of sex characteristics.

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). It is therefore pleasing that the ACT Government embraced the Tasmanian approach in its recent reforms to protect LGBT students and teachers at religious schools – although it retains exceptions for health and other community services at this stage.

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Anti-Vilification Coverage

The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong. 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; or

(e) the gender identity or intersex variations of sex characteristics of the person or any member of the group.”

The effect of these two provisions mean that LGBTI Tasmanians are protected both against conduct that offends, humiliates, insults or ridicules, as well as conduct that incites hatred, serious contempt or serious ridicule. This means Tasmania’s LGBTI anti-vilification provisions are the equal best in the country, alongside the ACT.

[Although it should be noted that, in its previous term, the Tasmanian Liberal Government attempted to undermine these anti-vilification protections. It sought to introduce amendments that would have permitted vilification for public acts done in good faith for ‘religious purposes’ (where “religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief”). This would have inevitably resulted in increased vilification of lesbian, gay, bisexual and transgender Tasmanians. Thankfully, while the Bill was passed by the Liberal-majority Legislative Assembly, it was rejected by the Independent-majority Legislative Council in August 2017.]

will-hodgman

Former Tasmanian Premier Will Hodgman sought to undermine LGBTI anti-vilification protections.

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Overall, it is clear that Tasmania’s Anti-Discrimination Act 1998 is the best LGBTI anti-discrimination law in Australia. It has set the standard to which all other jurisdictions should aspire.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

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

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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 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 failure to establish LGBTI vilification offences.

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Protected Attributes

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

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

  • “if the person treats another unfavourably because the other is or has been a person of a particular gender identity or because of the other’s past sex;
  • if the person 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 the person requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify.”

Importantly, unlike some jurisdictions, South Australia protects all trans people against discrimination (and not just people with binary gender identities).

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.

The Relationships Register Act 2016 has expanded this coverage even further by introducing 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. Although it should be noted that in the March 2017 Darlington Statement, intersex activists called for this terminology to be replaced by a protected attribute of ‘sex characteristics’.

Summary: The South Australian Equal Opportunity Act 1984 protects lesbian, gay, bisexual, transgender and intersex people against discrimination – with the 2017 inclusion of ‘intersex status’ making it 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 close to 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 LGBTI 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 is also unclear whether this general exception allows religious schools to discriminate against LGBTI students. That is because there is a separate section which provides exceptions for religious schools regarding students (section 37), and it does not allow discrimination on the basis of sexual orientation, gender identity or intersex status.

However, unlike the Queensland Anti-Discrimination Act 1991 which protects LGBT students, there is nothing in the general religious exception in section 50 of South Australia’s Equal Opportunity Act 1984 which states that it does not apply to religious schools.

This means that it is still possible the general religious exception in section 50 allows discrimination despite what section 37 says – a risk even the SA Equal Opportunity Commission expressed concern about in their submission to the South Australian Law Reform Institute’s review of Exceptions under the Equal Opportunity Act 1984 (p73). Indeed, the Law Reform Institute recommended:

“that section 50(1)(c) should be removed to make it clear that it does not apply to discrimination with respect to potential or current students of religious educational institutions” (pp83-84).

The situation is also 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,  gender identity or intersex status 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 three important qualifications to this ‘benign’ assessment:

  • It still allows discrimination against teachers and other employees in religious schools. This discrimination – which has no connection whatsoever to the ability of LGBTI teachers and other staff to do their jobs – remains unacceptable, irrespective of the procedural steps a school must first negotiate,
  • It is (I believe) unique in Australia in that it specifically states that religious schools can discriminate on the basis of intersex status (despite there being no supporting evidence of doctrines, tenets or beliefs which discriminate against people born with intersex variations), and
  • The general religious exception in sub-section 50(c) may still apply, for the same reason that it may allow religious schools to discriminate against LGBT students – meaning 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 LGBTI South Australians – sub-section 35(2b) allows ‘associations’ to exclude and otherwise adversely treat people on the basis of their intersex status, 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 LGBTI people in a wide range of circumstances, including healthcare, community services, associations and in education (although there is some uncertainty about how far the exceptions apply in that area).

[NB In late 2020, the South Australian Liberal Government released the Equal Opportunity (Religious Bodies) Amendment Bill 2020 for public consultation. This Bill would remove any ability for religious schools to discriminate against LGBT students (although not teachers) as well as limiting the special privileges of religious organisations to discriminate against both LGBT employees and people accessing their services in other nominated areas (such as housing, health and aged care).

However, this would still permit discrimination in other areas (such as university education). Therefore, while if passed this Bill would represent a significant improvement from the current provisions of the Equality Opportunity Act 1984 (SA), it would nevertheless fall well short of the best practice approach to religious exceptions in the Anti-Discrimination Act 1998 (Tas). For more information, please see my submission in response to the Equal Opportunity (Religious Bodies) Amendment Bill 2020.]

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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, gender identity or intersex status in relation to employment or engagement for which it is a genuine occupational requirement that a person be of a particular sex, sexual orientation, gender identity or intersex status.”

It is difficult to think of many jobs in which it is an inherent requirement that someone be of a particular sexual orientation, gender identity or intersex status. 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”, for “persons of a particular sexual orientation (other than heterosexuality), or for “persons of intersex status”, 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, gender identity or intersex status, 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.

It remains to be seen whether the Liberal Government, under Premier Steven Marshall, will take any action to improve the South Australian Equal Opportunity Act 1984.

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Will Liberal Premier Steven Marshall amend South Australia’s out-dated Equal Opportunity Act 1984?

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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

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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?

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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 variations – 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 ‘sex characteristics’ as a protected attribute in the legislation[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 sex characteristics as a protected attribute.

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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 from whom to seek relevant information.

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 third-best religious exceptions in Australia (behind only Tasmania and recently-passed ACT laws), 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).

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).

The same penalties apply irrespective of attribute (“for an individual – 70 penalty units or 6 months imprisonment; or for a corporation – 350 penalty units”).

Of course, given the out-dated definition of gender identity used, and the Act’s exclusion of sex characteristics, 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 sex characteristics, 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.

Annastacia Palaszczuk

Premier Annastacia Palaszczuk needs to raise the standard of the ‘so-so’ Queensland Anti-Discrimination Act 1991 before the State election due on 31 October 2020.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

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] In March 2017, intersex activists issued the Darlington Statement, which called for this terminology (sex characteristics) to be used instead of the protected attribute of ‘intersex status’, which is found in the Commonwealth Sex Discrimination Act 1984.

[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 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”.

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

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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 articles 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.

Unfortunately, as we shall see below, the Western Australian Equal Opportunity Act 1984 (‘the Act’) has significant problems in terms of all three elements, making it serious competition to the NSW Anti-Discrimination Act 1977 for the (unwanted) title of worst LGBTI anti-discrimination law in the country.

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Protected Attributes

As with most Australian anti-discrimination laws (other than those in the Commonwealth, South Australia, Tasmania and the ACT), the Equal Opportunity Act 1984 only protects some parts of the LGBTI community from discrimination, but not others.

On the positive side, it does include all lesbian, gay and bisexual members of the community – with ‘sexual orientation’ defined in section 4 as:

“in relation to a person, means heterosexuality, homosexuality, lesbianism or bisexuality and includes heterosexuality, homosexuality, lesbianism or bisexuality imputed to the person.”[i]

On the negative side, however, it completely excludes intersex people from anti-discrimination protection, an omission that should be rectified immediately.

On the negative and downright bizarre side, the Western Australian Act adopts a completely unique approach that results in only transgender people whose gender identity as been officially recognised by the State Government benefiting from anti-discrimination coverage.

Specifically, rather than prohibiting discrimination on the basis of gender identity (which would be best practice), the Act only prohibits discrimination against “a gender reassigned person on gender history grounds”.[ii]

Section 4 of the Act states that “gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that Act”, while section 35AA prescribes that “[f]or the purposes of this Part, 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.”

Prima facie, the combination of these two definitions mean that only people who have transitioned from male to female, or vice versa, and had that transition recognised by the Government via the Gender Reassignment Act are protected from discrimination. People who have yet to transition, or any trans person who is non-binary, are not covered by these clauses. This is a serious flaw, and one that must be corrected by the WA State Government.

Conclusion: While lesbian, gay and bisexual Western Australians are included in the protected attributes of the Equal Opportunity Act 1984, intersex people are completely excluded, as are a large number of trans people (either because their gender identity has not been formally recognised under the Gender Reassignment Act, or because their gender identity is non-binary).

Both flaws should be rectified as a matter of priority, with the adoption of the protected attribute of ‘gender identity’ as found in the Commonwealth Sex Discrimination Act 1984, and the inclusion of ‘sex characteristics’ as called for by intersex activists in the March 2017 Darlington Statement.

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Religious Exceptions

While it’s approach to trans anti-discrimination regulation is unique, the Equal Opportunity Act’s provisions surrounding the rights of religious organisations to discriminate against LGBT people are pretty standard for a state and territory (or even Commonwealth) law[iii]. Unfortunately, that ‘standard’ allows homophobic, biphobic and transphobic discrimination in an incredibly wide range of circumstances.

Section 72 of the Act states:

“Religious bodies

Nothing in this Act affects-

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

(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in any religious observance or practice; or

(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

The first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 72(d) is effectively a blanket exception that allows any religious organisation – including religious-operated schools, hospitals and community services – to discriminate against LGBT employees, and LGBT people accessing their services. This is clearly unacceptable.

Religious schools don’t even need to rely on this broad exception. That’s because they have additional, specific protections in section 73, which allow them to discriminate against teachers and other employees (sub-section (1)), contract workers (sub-section (2)), and even students (sub-section (3)).

Sub-section (1) is incredibly generous (with sub-section (2) adopting similar wording):

“(1) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

Even though the wording used in relation to students is slightly narrower, it nevertheless envisages discrimination against students on the basis of sexual orientation or against gender reassigned persons on the basis of their gender history:

“(3) Nothing in this Act renders it unlawful for a person to discriminate against another person on any one or more of the grounds of discrimination referred to in this Act, other than the grounds of race, impairment or age, in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in favour of adherents of that religion or creed generally, but not in a manner that discriminates against a particular class or group of persons who are not adherents of that religion or creed.”[iv]

Given education is conducted in the public sphere, it is, in nearly all circumstances, at least partially paid for by taxpayers, and above all it is the right of students to receive a comprehensive and inclusive education free from discrimination, there can be no justification for the continued existence of the exceptions for religious schools outlined in section 73. Just like sub-section 72(d), they should be repealed as a matter of priority.

Conclusion: The religious exceptions contained in the WA Equal Opportunity Act are, sadly, similar to those that exist in most Australian jurisdictions, in that they provide religious organisations generally, and religious schools in particular, extremely generous rights to discriminate against lesbian, gay, bisexual and trans employees and people accessing services. These religious exceptions must be curtailed to better protect LGBT Western Australians against discrimination.

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Anti-Vilification Coverage

This will be the shortest section of this post because, well, there isn’t any: there is currently no prohibition on vilification of LGBTI people under the Equal Opportunity Act 1984. This lack of protection is similar to the Commonwealth, Victoria, South Australia and the Northern Territory.

Interestingly, the Act also excludes racial vilification. Instead, Western Australia has chosen to outlaw racial vilification via the Criminal Code 1913, which creates a total of eight related offences, including:

“Section 77. Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which the person intends to create, promote or increase animosity towards, or harassment of a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 14 years” and

“Section 78. Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.”[v]

However, there are exactly zero offences outlawing vilification of LGBTI people in the Code. This disparity is completely unjustified, especially given the real and damaging impact of homophobia, biphobia, transphobia and intersexphobia on people’s lives (similar to the detrimental impact of racism).

If vilification offences are to be retained, as I believe they should (even if some right-wing Commonwealth MPs and Senators may disagree), then they should be expanded to cover vilification against members of the LGBTI community.

Conclusion: Neither the Equal Opportunity Act nor the Criminal Code prohibit LGBTI vilification, despite the latter creating a number of offences against racial vilification. Similar offences should also be established against the vilification of lesbian, gay, bisexual, transgender and intersex Western Australians.

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Other Issues

We have already seen, under ‘Protected Attributes’ above, that the Equal Opportunity Act offers only limited anti-discrimination protections to Western Australia’s trans and gender diverse community.

Unfortunately, this ‘anti-trans’ approach is replicated in a number of other sections of the Act, and is even featured in the Long Title: “An Act to promote equality of opportunity in Western Australia and to provide remedies in respect of discrimination on the grounds of sex, marital status, pregnancy, sexual orientation, family responsibility or family status, race, religious or political conviction, impairment, age, or publication of details on the Fines Enforcement Registrar’s website, or involving sexual or racial harassment or, in certain cases, on gender history grounds” [emphasis added].

Note that, not only does ‘gender history’ come last, it is also the only ground which features the qualifier ‘in certain cases’.

The objects of the Act are also exclusionary with respect to trans people. While object (a) in section 3 the Act seeks to ‘eliminate, so far as possible’ discrimination on grounds including sexual orientation and “in certain cases, gender history”, object (d) excludes trans people altogether:

“to promote recognition and acceptance within the community of the equality of persons of all races and of all persons regardless of their sexual orientation, religious or political convictions or their impairments or ages.”

Apparently, promoting recognition and acceptance of transgender people is not a priority.

This approach is also reflected in substantive parts of the Bill. Whereas section 35ZD allows discrimination in favour of people on the basis of their sexual orientation “to ensure that persons of a particular sexual orientation have equal opportunities with other persons” and “to afford persons of a particular sexual orientation access to facilities, services or opportunities to meet their special needs” (ie positive discrimination), there is no equivalent section for transgender people (or gender reassigned people with a gender history).

There is even a sub-section (74(3a)) that ensures an aged care service cannot discriminate solely in favour of transgender people (even though other aged care services can discriminate on the basis of ‘class, type, sex, race, age or religious or political conviction’[vi]).

Even the way some sections of Part IX, which aims to provide ‘Equal opportunity in public employment’, are drafted indicate that transgender discrimination is to be considered separately. For example, section 140 states:

“The objects of this Part are-

(a) to eliminate and ensure the absence of discrimination in employment on the ground of sex, marital status, pregnancy, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age or the publication of relevant details on the Fines Enforcement Registrar’s website; and

(aa) to eliminate and ensure the absence of discrimination in employment against gender reassigned persons on gender history grounds; and

(b) to promote equal employment opportunity for all persons.”[vii]

It is bizarre that even the protected attribute of ‘publication of relevant details on the Fines Enforcement Registrar’s website’ is included with sex, race and sexual orientation (among others), while gender reassigned persons are included in a separate sub-section.

Whenever the Western Australian Equal Opportunity Act 1984 is finally updated to ensure all transgender and gender diverse people are protected from discrimination, these additional sections will need to be updated to ensure that, as a protected attribute, gender identity is finally treated equally to other attributes.

Update:

In October 2018, the Western Australian Attorney-General John Quigley announced that the Equal Opportunity Act would be referred to the Law Reform Commission of Western Australia for a comprehensive review. This was in the wake of the leaking of the recommendations from the Ruddock Religious Freedom Review, and publicity about the issue of discrimination against LGBT students and teachers in religious schools.

In March 2019, the Law Reform Commission of Western Australia confirmed the details of this review (which can be found here).

Importantly, from an LGBTI perspective, this includes consideration of:

a. the objects of the Act and other preliminary provisions;

b. the grounds of discrimination including (but not limited to) introducing grounds of gender identity and intersex status;

e. the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification;

g. exceptions to grounds of discrimination including (but not limited to) those for religious institutions;

l. interaction with the Commonwealth Marriage Amendment (Definition and Religious Freedoms) Act 2017 and with other relevant Commonwealth laws or proposed laws.

It will be essential for LGBTI advocates within WA, and with support nationally, to engage with the Law Reform Commission process, and then to pressure the McGowan Government to bring the Equal Opportunity Act 1984 into the 21st century.

Update 11 July 2020:

Unfortunately, while the Law Reform Commission process was commenced in early 2019, as of mid-2020 there have been no official consultations or publications arising from this Review. The website for the inquiry has not even been updated since 6 March 2019. With the next State election due on 13 March 2021, it is now highly unlikely the Review will be completed this term.

Mark McGowan

Will WA Labor Premier Mark McGowan, elected in March 2017, update the out-dated Equal Opportunity Act 1984?

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:

[i] With discrimination on the basis of sexual orientation then prohibited under Part IIB of the Act.

[ii] Section 35AB.

[iii] Other than Tasmania’s exceptions, which are significantly narrower and, to a lesser extent, Queensland’s and the Northern Territory’s.

[iv] Interestingly, the phrase “other than the grounds of race, impairment or age” is omitted from the exceptions relating to teachers and contract workers – presumably religious schools can discriminate on these attributes then too.

[v] Other related offences include:

79 Possession of material for dissemination with intent to incite racial animosity or racist harassment

80 Possession of material that is likely to incite racial animosity or racist harassment

80A Conduct intended to racially harass

80B Conduct likely to racially harass

80C Possession of material for display with intent to racially harass

80D Possession of material for display that is likely to racially harass

[vi] Sub-section 74(2)(a).

[vii] Section 146 includes a similar delineation.

What’s Wrong With the ACT Discrimination Act 1991?

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This post is part of a series looking at Australia’s anti-discrimination laws, analysing them to determine how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles in the series can be found here.

In each post, the laws of each jurisdiction are assessed in relation to the following three areas:

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

Based on these criteria, the Australian Capital Territory Discrimination Act 1991 was already better than average in terms of its LGBTI anti-discrimination laws. The good news is that, as a result of the passage of the Discrimination Amendment Act 2016 and the Discrimination Amendment Act 2018, the ACT’s LGBTI protections have improved further.

However, while many of the previous issues with this Act have been remedied, this doesn’t mean the ACT’s law is without faults – chief among them the ongoing broad exceptions provided to religious organisations (other than schools) allowing them to discriminate against LGBTI people.

Nevertheless, let’s focus on the positives first:

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Protected Attributes

The ACT Discrimination Act 1991 includes sexuality as a protected attribute in section 7(1)(w), which is defined in the Act’s dictionary as ‘heterosexuality, homosexuality (including lesbianism) or bisexuality’. This includes all of LGB people, and is better than some jurisdictions (including NSW, which excludes bisexuals), but could be improved by adopting the more inclusive term ‘sexual orientation’.

As a result of the Justice Legislation Amendment Act 2020, the Act’s protected attribute of gender identity in section 7(1)(g) is now defined as:

the gender expression or gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person’s designated sex at birth.

Note Gender identity includes the gender identity that the person has or has had in the past, or is thought to have or have had in the past.

This includes all trans and gender diverse people, including those with non-binary gender identities.

Finally, 2016 amendments added intersex status as a protected attribute in section 7(1)(k), defined as ‘status as an intersex person’ – however, intersex advocates called for discrimination protections to be based on ‘sex characteristics’ in the influential March 2017 Darlington Statement.

In August 2020, the ACT Government responded, replacing intersex status with sex characteristics, with a definition based on the Yogyakarta Principles plus 10 (from the Act’s Dictionary:

sex characteristics-

(a) means a person’s physical features relating to sex; and

(b) includes-

(i) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(ii) the person’s chromosomes, hormones and secondary physical features emerging as a result of puberty.

The ACT is now one of only four Australian jurisdictions to provide coverage for lesbian, gay, bisexual, transgender and gender diverse and intersex people, the others being the Commonwealth, Tasmania and South Australia, and more importantly has up to date definitions for all attributes.

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Anti-Vilification Coverage

The ACT’s vilification protections also cover all parts of the LGBTI community, with prohibitions on vilification on the basis of sexuality, gender identity and intersex status (making it only the second jurisdiction, after Tasmania, to cover anti-intersex vilification – although again note the calls by intersex organisations for this term to be replaced by the protected attribute of sex characteristics).

In fact, the ACT’s LGBTI vilification protections are now the equal best in the country, given the offence of serious vilification, contained in section 750 of the Criminal Code 2002, applies to serious vilification on the basis of intersex status (the other jurisdiction with best practice anti-vilification laws is Tasmania).

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Religious Exceptions

On the basis of the above, it is clear the ACT now has close-to-best practice anti-discrimination laws in terms of their protected attributes (covering all parts of the LGBTI community) and anti-vilification coverage (again, protecting lesbian, gay, bisexual, transgender and intersex people).

Alas, the Discrimination Act 1991 falls down (from its pedestal) when it comes to religious exceptions, aka special provisions that allow religious organisations to discriminate against people on the basis of their sexual orientation, gender identity or intersex status.

The primary religious exceptions are outlined in section 32 Religious bodies, which states that:

“Part 3 [which contains the prohibitions of discrimination] does not apply in relation to-

(a) the ordination or appointment of priests, ministers of religion or members of any 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 exercise functions for the purposes of, or in connection with, any religious observance or practice; or

(d) any other act or practice (other than a defined act) of a body established for religious purposes, if the act or practice conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

As has been noted in previous posts, the first three sub-sections ((a), (b) and (c)), can potentially be justified on the basis that there is a direct connection with the appointment and training of religious office-holders, or the conduct of religious ceremonies.

However, sub-section 32(d) is effectively a blanket exception that allows any religious organisation – including religious-operated hospitals and community and social services – to discriminate against LGBTI employees, and LGBTI people accessing their services. This is clearly unacceptable.

Nevertheless, recent amendments passed by the ACT Parliament in the wake of the Ruddock Religious Freedom Review have at least ensured that these religious exceptions do not permit religious schools to discriminate against LGBTI students or teachers and other staff.

The Discrimination Amendment Act 2018 abolished the specific exception for ‘Educational institutions conducted for religious purposes’ which was previously found in section 33 (see footnotes*).

Importantly, it also amended the general religious exception in section 32(1)(d) so that it does not apply to ‘defined acts’, which section 32(2) defines as:

means an act or practice in relation to-

(a) the employment of contracting of a person by the body to work in an educational institution; or

(b) the admission, treatment or continued enrolment of a person as a student at an educational institution.

In short, religious schools now cannot discriminate against LGBTI students, teachers and other staff on the basis of their sexuality, gender identity or intersex status.

The ACT Government has instead adopted the best-practice Tasmanian approach where religious schools can discriminate in terms of the admission of students and employment of teachers on the grounds of the student or teacher’s respective religious belief (although they’ve gone further than Tasmania by requiring any school that wishes to discriminate in this way to publish its policies up-front – section new section 46(2)-(5)).

However, the ACT Government has left in place – at least for the moment – the special privileges that allow religious organisations other than schools, such as hospitals, community and social services, to discriminate against employees and people accessing those services on the basis of their sexuality, gender identity or intersex status.

There can be no justification for such wide-ranging discrimination. Hopefully, with the issue of discrimination by religious schools now addressed, the ACT Government can move on to limiting discrimination by these other bodies too – although time is running out before the next election, due on 17 October 2020.

andrewbarr

ACT Chief Minister Andrew Barr, who has successfully removed the right of religious schools to discriminate against LGBTI students and teachers, but still needs to address religious exceptions for other organisations.

Summary

As a result of amendments in both 2016 and 2018, the ACT Discrimination Act 1991 now protects all sections of the LGBTI community from discrimination. It also features the equal best anti-vilification coverage of any state, territory or federal framework in Australia, and has prohibited discrimination by religious schools against LGBTI students, teachers and other staff.

However, the ACT Government still needs to take action to limit the ability of other religious organisations, including hospitals, community and social services, to discriminate against employees and people accessing their services on the basis of sexuality, gender identity or intersex status.

 

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Footnotes:

NB Footnotes [i] to [iv] have been deleted as a result of editing.

*The Discrimination Amendment Act 2018 abolished section 33 of the Act, which previously provided:

“Educational institutions conducted for religious purposes

(1) Section 10 or 13 [which prohibit discrimination against applicants, employees and contract workers] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to-

(a) employment as a member of the staff of an educational institution; or

(b) a position as a contract worker that involves doing work in an educational institution;

if the institution is conducted in accordance with the doctrines, tenets, beliefs or teachings or a particular religion or creed, and the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(2) Section 18 [which prohibits discrimination in relation to education] does not make it unlawful for a person (the first person) to discriminate against someone else in relation to the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

Submission re Tasmania’s Proposed Anti-Discrimination Amendment Bill 2016

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Update 19 January 2017:

Unfortunately, the Tasmanian Government has pushed ahead with its flawed legislation to allow greater rights to vilify LGBTI people, and especially vilification by religious organisations.

The Anti-Discrimination Amendment Bill 2016 – full text here – was passed by the Legislative Assembly on 25 October 2016.

This includes an expansion of the ‘public purpose’ defence for vilification, to cover “a public act done in good faith for… religious purposes” where religious purpose is defined as “includes, but is not limited to, conveying, teaching or proselytising a religious belief.”

Disappointingly, the Legislative Council failed to refer the Bill to an inquiry, although the Government ran out of time for the Bill to be passed in 2016 – the Attorney-General, Vanessa Goodwin, stated that:

“Due to our heavy legislative agenda and given the proximity to the end of the parliamentary year, the Government does not intend to bring the bill on for debate until next year. This will allow further time for community debate and stakeholder feedback to MLCs on this important issue.”

With Tasmanian Parliament resuming on March 7, that means there’s now less than 7 weeks left to convince upper house MPs not to undermine what has been, until now, Australia’s best anti-discrimination scheme.

Original Post:

Department of Justice

Office of Strategic Legislation and Policy

GPO Box 825

Hobart TAS 7001

c/ legislation.development@justice.tas.gov.au

Friday 9 September 2016

To whom it may concern

Submission re Proposed Anti-Discrimination Amendment Bill 2016

Thank you for the opportunity to provide a submission in relation to the Government’s proposed amendments to Tasmanian anti-vilification laws, which are included in the Anti-Discrimination Amendment Bill 2016 (‘the Bill’).

I make this submission as an advocate for lesbian, gay, bisexual, transgender and intersex (LGBTI) equality, and as someone who takes a keen interest in anti-discrimination and anti-vilification laws, both at the Commonwealth level, and in Australia’s states and territories.

My first comment in response to the proposed Bill is to observe that it appears to be a ‘solution’ in search of a problem.

As far as I can ascertain, there seem to be two main motivations for these reforms. The first is to satisfy the demands of the Australian Christian Lobby (ACL), who have repeatedly requested that state and territory LGBTI anti-vilification laws (where they exist) be suspended, or even abolished, in the lead-up to the potential national plebiscite on marriage equality.

The obvious response to such a demand is that, if their arguments against the equal treatment of LGBTI people under secular law require them to breach anti-vilification laws, perhaps they need better arguments rather than worse laws.

The second motivation appears to be a recent case, involving Mr Julian Porteous, following the distribution of the Don’t Mess with Marriage booklet by the Tasmanian Catholic Church that stated same-sex parents “mess with kids”, and that same-sex partners are not “whole people”. Possibly the most salient point to note is that the complaint was subject to attempted conciliation, which did not result in it being resolved, but then did not even proceed to the Tribunal.

I would argue that these two motivations – to allow the ACL to contravene vilification standards during any forthcoming plebiscite debate, and to respond to a single case that did not even make it to the Tribunal – are not sufficient justification to propose reforms that would ‘water down’ the anti-vilification protections that are currently offered to LGBTI Tasmanians.

Unfortunately, that is exactly what this Bill attempts to do. By replacing the wording of section 55, and expanding the exceptions to the vilification protections offered under sections 17(1) and 19 of the Anti-Discrimination Act 1998 (‘the Act’), the Bill would effectively allow greater vilification of people on the grounds of sexual orientation, lawful sexual activity, gender identity and intersex (among other grounds).

In doing so, it would wind back hard-fought, and hard-won, protections introduced after the long-running decriminalisation campaign of the 1980s and 1990s. It is very hard to see, 18 years since its original passage, why there is a need to make anti-LGBTI hate speech easier in the contemporary environment.

I have two more-specific concerns about the proposed changes to section 55.

The first is to question why the exception, which would be expanded to include ‘public acts done reasonably and in good faith’ for a ‘religious’ purpose (where ‘religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief’), should apply with respect to section 19[i], which establishes the more serious offence of ‘inciting hatred’ (whereas sub-section 17(1)[ii] regulates ‘conduct which offends, humiliates, intimidates, insults or ridicules’).

It is difficult to comprehend why the Act should be amended to make lawful the incitement of ‘hatred towards, serious contempt for, or severe ridicule of’ people who are lesbian, gay or bisexual (noting that section 19 currently does not offer protection to transgender or intersex people) merely because it is done for a ‘religious purpose’.

According to advocate Rodney Croome “Worst of all is the Government’s decision to erode hate speech protections even more than people like Julian Porteous want. He has called for the law against denigrating statements to be watered down, but has said the law against the more severe crime of incitement to hatred [ie section 19] should be kept intact.”[iii]

It seems this particular ‘solution’ isn’t just in search of a problem, it is lacking beneficiaries too (although it is clear who the losers will be from such an amendment: lesbian, gay and bisexual Tasmanians).

My second concern is to question the limits of the proposed exception for vilification for ‘religious purposes’, with respect to both sections 17(1) and 19. In particular, and noting it will be challenging for the Tribunal, or courts more broadly, to determine when a public act for a ‘religious purpose’ is ‘done reasonably and in good faith’ or not, how far will religious individuals or groups be allowed to go in ‘proselytising’ a religious belief that itself incites hatred?

An example of such a belief would be for an extremist christian organisation to promote a ‘literal’ reading of Leviticus 20:13, which has been interpreted as “If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them”[iv].

And, before it is suggested that this example is implausible, we should recall that it is only four years since a senior figure within the Salvation Army publicly defended this belief – that gay people should be put to death – live on radio[v].

Given this, how would the proposed amended law deal with a situation where, instead of distributing the booklet Don’t Mess with Marriage, a religious school sent children home with a pamphlet entitled Gay Men Should Die (or perhaps slightly more generously, Gay Men Should Die Unless they are Celibate) conveying the ‘religious belief’ that men who have same-sex sexual intercourse ‘shall surely be put to death’?

It is reasonably clear such a pamphlet would ‘offend, humiliate, intimidate, insult or ridicule’, as well as likely inciting ‘hatred, serious contempt for or severe ridicule’ of, people on the basis of both sexual orientation and lawful sexual activity, and in doing so contravene both sections 17(1) and 19 of the Act.

But it is also possible the proposed new section 55 would ‘excuse’ these actions because it would be a public act done in ‘good faith for a religious purpose’, as it was ‘conveying, teaching or proselytising a religious belief’, no matter how offensive it is, to young people at a school operated by that organisation[vi].

I would argue that this would be an unacceptable outcome, and hope that the legislative sponsors of these amendments, and indeed anyone pushing for changes to Tasmania’s vilification laws, would agree.

It is particularly concerning that such an undesirable result could be achieved given we have seen above that there doesn’t actually appear to be any justification for the introduction of this Bill.

More generally, as someone from outside the State I would argue that the undermining of Tasmania’s anti-vilification regime, which is currently among the best, if not the best, law in the country, in this way would be a negative precedent for other jurisdictions.

This is especially important given only four states and territories currently have any anti-vilification protections for any sections of the LGBTI community (Tasmania, Queensland, NSW and the ACT). Nor do such laws exist federally. Even where they do exist, such as in NSW, they have significant flaws (for example, only protecting lesbians, gay men and some transgender people from vilification, and not protecting bisexuals or intersex people at all).

In my view, the Tasmanian Government should be concentrating on ensuring its anti-vilification laws are comprehensive (such as by amending section 19 to prohibit the incitement of hatred, serious contempt for or severe ridicule of transgender and intersex people) and effective, instead of making it easier for people to vilify others because of their sexual orientation, gender identity or intersex status.

Thank you again for the opportunity to make this submission and for taking it into consideration. Should you require clarification, or additional information, please do not hesitate to contact me at the details provided below.

Sincerely,

Alastair Lawrie

Footnotes:

[i] “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 –

  • the race of the person or any member of the group; or
  • any disability of the person or any member of the group; or
  • the sexual orientation or lawful sexual activity of the person or any member of the group; or
  • the religious belief or affiliation or religious activity of the person or any ember of the group.”

[ii] “17. Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules abother person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (f), (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.”

NB This covers sexual orientation (16(c)), lawful sexual activity (d), gender identity (ea) and intersex (eb).

[iii] The Mercury, Talking Point: Green light being given to homophobia and any bigot with a bible’, 31 August 2016. http://www.themercury.com.au/news/opinion/talking-point-green-light-being-given-to-homophobia/news-story/00ffb213c903540b1febfdb94dbef243

[iv] Of course, such a position would overlook the inherent contradictions of adopting a ‘literal’ interpretation of some sections of the bible, while rejecting literal readings of others, a double standard which has been perfectly encapsulated by the now famous ‘Letter to Dr Laura’ (responding to a US radio host’s bible-based description of homosexuality as an ‘abomination’):

dear-dr-laura

[v] Huffington Post, Andrew Craibe, Salvation Army Official, Implies Gays Should be Put to Death in Interview, 26 June 2012. http://www.huffingtonpost.com/2012/06/26/andrew-craibe-salvation-army-official-gays-put-to-death_n_1628135.html

Joy 94.9FM presenter Serena Ryan: According to the Salvation Army, [gay people] deserve death. How do you respond to that, as part of your doctrine?

Craibe: Well, that’s a part of our belief system.

Ryan: So we should die.

Craibe: You know, we have an alignment to the Scriptures, but that’s our belief.

[vi] The only question is whether the public act was ‘done reasonably’, although I would suggest there is a risk at least some Tribunal members or judges may view the promotion of any religious belief, no matter how offensive, to be reasonable provided that belief was sincerely held.

What’s Wrong With the Northern Territory Anti-Discrimination Act?

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This post is part of a series of posts looking at Australian anti-discrimination laws and analysing how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles can be found here.

These articles look at the laws that exist in each jurisdiction, and assess them in three key areas:

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

Unfortunately, the Northern Territory Anti-Discrimination Act has significant problems in relation to all three issues, meaning there is plenty of work to do for the Legislative Assembly to ensure LGBTI people are adequately protected against discrimination and vilification.

Protected Attributes

Sub-section 19(1) of the Northern Territory Anti-Discrimination Act sets out the grounds on which discrimination is prohibited, including “19(1)(c) sexuality.”

Sexuality itself is defined in section 4 of the Act as: “sexuality means the sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality.”[i]

On a positive note, employing this definition means the Act does offer protection to lesbians, gay men and bisexual people (something not all state and territory laws do – for example, New South Wales does not cover discrimination or vilification against bisexual people). Although arguably it could still benefit from the more inclusive definition of ‘sexual orientation’, as featured in the Commonwealth Sex Discrimination Act 1984[ii].

However, there are significant problems in terms of the Act’s application to discrimination against transgender people. First, because it includes ‘transsexuality’ within the term ‘sexuality’, when it is in fact about gender identity.

Second, and more importantly, by using the word ‘transsexuality’ rather than transgender (or including the term ‘gender identity’[iii] as its Commonwealth equivalent does, which would be preferred), it is possible that the Act fails to protect transgender people who are not ‘transsexual’ from discrimination, which is clearly a significant failing.

Another significant failing is the complete absence of protection against discrimination for intersex people. This stands in contrast to the Commonwealth, Tasmania, the ACT and South Australia who have all prohibited discrimination on the basis of ‘intersex status’[iv].

Summary: The Act does cover discrimination against lesbian, gay and bisexual Northern Territorians (although it could be further improved by adopting a more inclusive definition of sexual orientation). However, by using the term ‘transsexuality’, and including it within the term ‘sexuality’, it is likely the Act does not cover all transgender people. It also fails to offer any protection to intersex people.

Religious Exceptions

There are some positive, but also several negative, features of the Northern Territory Anti-Discrimination Act in terms of the special rights it grants religious organisations to discriminate against LGBTI people.

The primary provision establishing ‘religious exceptions’ is section 51:

“This Act does not apply to or 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) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

The drafting of these exceptions is actually relatively narrow when compared with those that exist in other states and territories.

For example, while the first two paras above (section 51(a) and (b)) are identical to the NSW Anti-Discrimination Act 1977 section 56(a) and (b), the NSW legislation subsequently goes much further, allowing discrimination in relation to:

“(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 avoid injury to the religious susceptibilities of the adherents of that religion.”

In contrast, the primary Northern Territory provision appears to more closely target the appointment of ministers of religion, and religious celebrations and practices, rather than the more nebulous criteria of ‘avoid[ing] injury to the religious susceptibilities of the adherents of that religion”.

Indeed, depending on the scope of ‘religious observance or practice’, and how this phrase has been interpreted by the judiciary, the NT provision is arguably more justifiable on the basis it seems to be concerned with religious freedom, rather than providing religious organisations with carte blanche to discriminate against LGBTI people.

Unfortunately, the same cannot be said of other sections of the Act. Section 37A provides an incredibly broad exception to religious schools:

“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.”

In effect, any religious school in the Northern Territory can discriminate against any employee or potential employee solely because they are LGBTI, irrespective of the role and no matter how qualified they may be. This is simply unacceptable and must be removed.

The section covering discrimination against students is not as broad. Sub-section 30(2) provides that:

“An educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”

Note that this only permits discrimination against students on the basis of their religion, and not because of their sexuality (or transsexuality). This is to be welcomed and, if 51(d) (above) has been interpreted narrowly, means LGBT students are protected against discrimination in NT religious schools.

The other provision that grants special rights to religious organisations to discriminate is sub-section 40(3), in relation to accommodation:

“A person may discriminate against a person with respect to a matter that is otherwise prohibited under this Division if:

(a) the accommodation concerned is under the direction or control of a body established for religious purposes; and

(b) the discrimination:

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

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

If discrimination in relation to the appointment or training of ministers of religion is already allowed under section 51(a) and (b), which would presumably include the facilities used for housing these ministers/trainees, it is difficult to see how this particular section would be justified. As a result, it should be repealed alongside section 37A.

Summary: The main religious exceptions offered under the NT Act are relatively modest when compared to some other states and territories. Provided that ‘religious observance or practice’ has been interpreted to mean religious ceremonies and little else, section 51 may not require substantial amendment.

However, there is no justification for discrimination against LGBTI employees or potential employees in religious schools, meaning section 37A should be repealed as a matter of priority. Sub-section 40(3), allowing discrimination in relation to accommodation, also appears excessively broad.

Anti-Vilification Coverage

The Northern Territory is the only jurisdiction in Australia that does not prohibit racial vilification. In which case, it is perhaps unsurprising that there are no prohibitions on vilification against LGBTI people either (the definition of ‘discrimination’ in section 20(1) does include “harassment on the basis of an attribute”, however this falls far short of the usual standard of ‘offend, insult, humiliate or intimidate’[v]).

The Government should introduce prohibitions against anti-LGBTI vilification, as well as in relation to other attributes, including race.

Michael_Gunner

Will Chief Minister Michael Gunner fix the NT Anti-Discrimination Act?

On a positive note, during this term of Parliament the Northern Territory Government released a discussion paper looking at Modernisation of the Anti-Discrimination Act. It included examination of all of the above issues (protected attributes, religious exceptions and anti-vilification coverage), with submissions due by 31 January 2018.

However, more than two years later and nothing appears to have come from this consultation. Which means that, heading into the next Northern Territory election on 22 August 2020, the NT Anti-Discrimination Act remains in desperate need of reform. Will whoever is elected by up to the challenge?

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:

[i] It should be noted here that these concepts (heterosexuality, homosexuality, bisexuality and transsexuality) are not further defined in the legislation.

[ii] Section 4: “sexual orientation means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[iii] “[G]ender identity means 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.”

[iv] In March 2017, intersex activists from around Australia released the Darlington Statement which called for the protected attribute of ‘intersex status’ to be replaced by ‘sex characteristics’. For more information, see the OII Australia website, here.

[v] For example, sub-section 18C of the Commonwealth Racial Discrimination Act 1975 provides that:

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

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people…”

Letter to Paul Lynch re LGBTI Anti-Vilification Reform

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In June, NSW Shadow Attorney-General Mr Paul Lynch MP introduced the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. Details of the Bill can be found here.

 

In short, the legislation seeks to implement the recommendations of the Legislative Council Standing Committee on Law and Justice’s 2013 Inquiry into Racial Vilification Law in NSW.

 

Importantly, in doing so the Bill ignores the Report’s (implicit) approach to treat racial vilification differently from the other forms of vilification currently prohibited by the Anti-Discrimination 1977: namely homosexual, transgender and HIV/AIDS vilification.

 

Just as importantly, however, the Bill fails to update the definitions of these grounds, and also fails to extend anti-vilification coverage to bisexual and intersex people in NSW.

 

The following is my letter to the Shadow Attorney-General about his Bill, sent before the return of State Parliament next week (Tuesday 2 August 2016).

 

**********

 

Mr Paul Lynch MP

Shadow Attorney-General

100 Moore St

Liverpool NSW 2170

liverpool@parliament.nsw.gov.au

 

24 July 2016

 

 

Dear Mr Lynch

 

LGBTI Anti-Vilification Reform

 

I am writing to you about your Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016 (‘the Bill’), currently before NSW Parliament.

 

Specifically, I am writing to congratulate you on what is included in the Bill, while also encouraging you to amend the Bill to address other inadequacies within the NSW anti-vilification framework.

 

First, to the positives. I welcome the fact that the Bill removes one of the more bizarre and, in my opinion, completely unjustifiable aspects of the NSW Anti-Discrimination Act 1977 (‘the Act’) – that the penalties for the offences of serious racial and HIV/AIDS vilification are different to, and slightly higher than, the penalties for the offences of serious homosexual and transgender vilification.

 

By consolidating these offences in one place – the proposed new section 91N of the NSW Crimes Act 1900 – your Bill would ensure there is no difference in severity in how these offences are treated by the Government, and therefore avoids sending the signal that some forms of vilification are worse than others.

 

I also welcome the fact you have avoided one of the key pitfalls of the Legislative Council Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law in NSW, which, given it exclusively focused on racial vilification, only suggested changes to the laws surrounding one of the four existing attributes that attract anti-vilification protection.

 

Were these recommendations to be implemented in their entirety (and no other changes made), it would exacerbate, rather than remove, the inequality in treatment between serious racial vilification and the three other current grounds (homosexual, transgender and HIV/AIDS vilification).

 

I further support the substantive amendments proposed in your Bill, including:

 

  • Removing the requirement for the Attorney-General to give consent to prosecution for any vilification offence
  • Extending the time within which prosecutions for vilification offences must be commenced from 6 months to 12 months (addressing a flaw in the current Act highlighted by the case of Simon Margan v Director of Public Prosecutions & Anor [2-13] NSWSC 44)
  • Adopting the recommendation of the Law and Justice Standing Committee report that recklessness is sufficient to establish intention to vilify
  • Clarifying which public acts constitute unlawful vilification
  • Providing that vilification applies whether or not the person or members of the group vilified have the characteristic that was the ground for the promotion of hatred, contempt or ridicule concerned, and
  • Ensuring that the President of the Anti-Discrimination Board refers vilification complaints to the Commissioner of Police where the President considers that the offence of serious racial, transgender, homosexual or HIV/AIDS vilification may have been committed.

 

In terms of the proposal to replace ‘incitement’ with ‘promotion’ within the definition of vilification itself, while I have not had the opportunity to examine this amendment in great depth, on a prima facie basis it appears reasonable.

 

Finally, I agree with your decision to relocate the offence of serious vilification to the Crimes Act 1900, for the reasons outlined in your Second Reading Speech:

 

“Certainly, the legal effect of a provision should be the same whether it is located in the Crimes Act or in the Anti-Discrimination Act. However, there is significant symbolism in the provision being located in the Crimes Act in the new section 91N. And symbolism, as everyone in this Chamber knows, is important.”

 

Now, I will turn my attention to the shortcomings of the Bill and, unfortunately, in my opinion they are significant.

 

Specifically, while what the Bill includes is to be welcomed, it is flawed because of what it excludes. It fails to address one of the main problems of the Anti-Discrimination Act 1977, which is that it only protects some parts of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and not others.

 

As I have detailed elsewhere (see “What’s wrong with the NSW Anti-Discrimination Act 1977?”), the out-dated terminology used in the Act means that only lesbian, gay and transgender people are protected (and even then not all transgender people are covered).

 

Meanwhile, there is still no anti-vilification protection for bisexual people, or for intersex people, in NSW (with the absence of Commonwealth LGBTI anti-vilification laws only compounding this problem).

 

In my view, the limited coverage offered by the NSW anti-vilification framework is an even greater problem than those issues identified by the Standing Committee on Law and Justice’s Inquiry into Racial Vilification Law.

 

As such, I believe this issue should be addressed before, or at least simultaneously to, those provisions contained in your Bill. Otherwise, the differential treatment of groups within the LGBTI community would only become further entrenched.

 

For these reasons, I strongly encourage you to consider amending your Bill to ensure that all sections of the LGBTI community are protected against vilification. To achieve this, you may wish to incorporate the definitions included in the historic Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

 

This would involve:

 

  • Replacing the current protected attribute of homosexual with ‘sexual orientation’ (and which would therefore cover bisexual people)
  • Amending the protected attribute of transgender to the more inclusive term ‘gender identity’, and
  • Introducing the new protected attribute of ‘intersex status’.

 

If you are interested in pursuing these changes then I also encourage you to consult with the LGBTI community, and its representative organisations, beforehand (to ensure that any consequential difficulties are avoided).

 

To conclude, and despite the issues described above, I genuinely welcome the provisions contained in the Crimes and Anti-Discrimination Legislation Amendment (Vilification) Bill 2016. However, by extending the scope of vilification offences to protect bisexual and intersex people, I sincerely believe you would significantly improve your legislation.

 

Thank you for your consideration of this letter. I am of course happy to discuss any of the issues raised at the contact details provided below.

 

Sincerely,

Alastair Lawrie

 

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NSW Shadow Attorney-General Paul Lynch