Submission re Queensland Registering Life Events Discussion Paper

The following is my submission in response to the Queensland Government Registering Life Events: Recognising sex and gender diversity and same-sex families Discussion Paper. For more information on this review, go here.

 

BDM Act Review Team

PO Box 15188

City East, Brisbane QLD 4002

bdmlegislativereview@justice.qld.gov.au

 

Wednesday 18 April 2018

 

To the BDM Act Review Team

 

Submission re Registering Life Events Discussion Paper

 

Thank you for the opportunity to provide a submission in response to the Registering Life Events: Recognising sex and gender diversity and same-sex families Discussion Paper.

 

I write this submission as a long-time advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

I also write this as a cisgender gay man, and am therefore guided by the views of those groups directly affected by the provisions of the Births, Deaths and Marriages Registration Act 2003.

 

Specifically, with respect to questions 1 to 7 I endorse both the submission to the current review by Intersex Human Rights Australia (IHRA),[i] and the Sex and Gender Advisory Group’s letter to the Commonwealth Attorney-General’s Department Review of the Australian Government Guidelines on the Recognition of Sex and Gender.[ii]

 

Where there is any inconsistency between this submission and the views of these groups, I defer to them as experts in these areas.

 

Question 1. How should a person’s sex be recorded on the birth, adoption and death registers?

Question 2. Do you have any other comments on this issue?

 

I support the views expressed in Recommendation 3 of the Intersex Human Rights Australia submission that: Queensland should end legal classification of individuals by sex or gender, in line with the Darlington Statement and the Yogyakarta Principles plus 10.

 

I also agree with IHRA that this recommendation is unlikely to be achieved in the short-term and therefore support their recommendation 4, namely that: In the absence of an end to legal classification of individuals by sex or gender, Queensland should recognise ‘non-binary’, alternative (for example, self-affirmed) and multiple sex markers. Changes should be available [via] a simple administrative procedure, for example, via a statutory declaration.

 

I note that this terminology, and in particular the use of the term ‘non-binary’, was also supported by the Sex and Gender Advisory Group in its letter of 24 September 2015.

 

Question 3. Should any changes be considered to the BDMR Act and BDMR Regulation to improve the legal recognition of sex and gender diverse people in Queensland? If so, what should the changes be?

Question 4. Should any changes be made to the BDMR Act’s provisions regarding an application to note a reassignment of sex for children/young people under the age of 18? If so, what should the changes be?

 

Yes, significant changes must be made to the Births, Deaths and Marriages Registration Act 2003 to improve the legal recognition of sex and gender diverse people in Queensland. This includes the removal of the major hurdles that currently prevent people from accessing accurate and appropriate identity documentation.

 

First, the requirement that trans and gender diverse people must have ‘sexual reassignment surgery’[iii] before being able to update their sex on the birth register must be removed. This requirement is inappropriate as not all transgender people want or are able to undertake such procedures (for a variety or reasons, including financial).

 

Second, the requirement that applications to note the reassignment of a person’s sex ‘must be accompanied by statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery’ [section 23(4)(b)] must also be removed. The medicalisation of identity recognition processes is also inappropriate – doctors should not be ‘gatekeepers’ of the identity of trans and gender diverse people.

 

The process for updating sex and gender details should be based on the experience and/or identity of the individual involved – not the opinion of medical ‘experts’ – and should be straight-forward, most likely affirmed through a simple statutory declaration.

 

The same principles should also apply with respect to minors, with no medical gatekeepers involved, and the only caveat being that they are able to demonstrate their capacity for consent. Obviously, this also means that where a minor is able to demonstrate such capacity, they should be permitted to amend their identity documentation in the absence of approval from parent(s) or guardian(s).

 

Finally, I endorse Recommendation 6 of the Intersex Human Rights Australia submission that: In the absence of legislation and regulation that implements prior BDM recommendations, the Queensland government should ensure that a separate, simple and accessible pathway is available for people born with variations of sex characteristics to correct details on birth certificates.

 

Question 5. Should the BDMR Act contain provisions to allow for the reassignment of a person’s sex for individuals who reside in Queensland but whose birth was registered elsewhere?

Question 6. Should BDMR Act allow for the issuing of a gender recognition certificate/identity acknowledgement certificate which can be used by a person as proof of their sex or gender?

Question 7. Do you have any other comments on this issue?

 

Yes, I support the inclusion of provisions to allow for the reassignment of a person’s sex for individuals who reside in Queensland but whose birth was registered elsewhere. This would seem to be an important practical measure for people who are unable to update these details in other jurisdictions, for a variety of possible reasons.

 

I am not in a position to comment on the process for such recognition – including the specific proposal for the issuing of a gender recognition certificate/identity acknowledgement certificate – and defer to the views of trans, gender diverse and intersex organisations on this question.

 

Question 8. Should the BDMR Act be amended to permit same-sex parents to choose how they are recorded on a birth or adoption registration?

 

Yes, although this should not be limited to ‘same-sex parents’ – all parents should be able to nominate how they are recorded. This would better reflect the diversity of modern families, not just in terms of sexual orientation and gender identity, but also in terms of methods of family creation.

 

Question 9. If so, what descriptors should be available and in what combinations?

 

At the very least, parents should have the option of nominating as ‘mother’, ‘father’ or ‘parent’, thereby allowing the combinations of mother/father, mother/mother, father/father, mother/parent, father/parent and parent/parent.

 

I am not in a position to comment on what other terms may be preferable (especially with respect to the potential use of ‘birth mother’ or ‘birth parent’) but encourage the BDM Act Review Team to consult directly with rainbow families on these issues.

 

Question 10. Do you have any other comments on this issue?

 

I note that the Discussion Paper states that ‘[t]he issue of whether or not a child’s birth or adoption registration should include more than two parents and the issuing of integrated birth certificates listing more than two parents will be canvassed in a subsequent discussion paper.’

 

I take this opportunity to pre-emptively express the view that, in contemporary Australia, there is already a wide range of family structures in existence – including where children are raised by three or four different parents – and that the law should be amended to reflect this reality.

 

Additional Comments

 

I also take this opportunity to express my support for the first two recommendations of the Intersex Human Rights Australia submission to the current review, namely that:

 

Recommendation 1. Queensland should protect children’s right to bodily integrity, in line with the Darlington Statement and the Yogyakarta Principles plus 10

and

Recommendation 2. The Queensland government should protect people from discrimination and violence on grounds of ‘sex characteristics’, in line with the attribute defined in the Yogyakarta Principles plus 10.

 

These are important issues and both represent serious shortcomings in Queensland law (as well as in other jurisdictions within Australia). The Queensland Government has in recent years adopted a progressive agenda on LGBTI issues overall – I strongly encourage it to add both of these items to that list.

 

Thank you for considering this submission as part of this important review. Please do not hesitate to contact me at the details below should you require additional information.

 

Sincerely

Alastair Lawrie

 

Palaszczuk

The Palaszczuk Labor Government has already enacted a strong LGBTI reform agenda – but there’s plenty left to do.

 

Footnotes:

[i] Morgan Carpenter, 4 April 2018: https://ihra.org.au/32033/submission-bdm-queensland/

[ii] Gavi Ansara, Sue Webeck, Morgan Carpenter, Peter Hyndal and Sally Goldner, 24 September 2015, as published on the National LGBTI Health Alliance website: https://lgbtihealth.org.au/wp-content/uploads/2015/10/FOR-DISTRIBUTION-AGD-Sex-and-Gender-Guidelines-Review-Advisory-Group-Endorsement-Letter.pdf

[iii] Defined in the Act as:

‘means a surgical procedure involving the alteration of a person’s reproductive organs carried out:

(a) to help the person to be considered a member of the opposite sex; or

(b) to correct or eliminate ambiguities about the sex of the person.’

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Submission re Queensland Births, Deaths and Marriages Registration Amendment Bill 2018

The Queensland Government has introduced legislation to finally abolish ‘forced trans divorce’ in that state. The following is my submission to the Parliamentary Committee which is considering this Bill. More details about this inquiry can be found here.

 

Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

 

Sunday 18 March 2018

 

Dear Committee

 

Births, Deaths and Marriages Registration Amendment Bill 2018

 

Thank you for the opportunity to provide a submission in relation to the Births, Deaths and Marriages Registration Amendment Bill 2018.

 

In short, I strongly support this legislation. As noted by Attorney-General, the Hon Yvette D’Ath, in her second reading speech, the Bill ‘makes an important and necessary amendment to ensure true marriage equality is realised for sex and gender diverse Queenslanders.’

 

The existing provisions of the Births, Deaths and Marriages Registration Act 2003, which require that married transgender people must divorce their spouses before they are able to have the reassignment of their sex noted on the birth register, are a gross violation of human rights.

 

Forced trans divorce does not respect the right to personal autonomy and self-determination of trans and gender diverse people.

 

Forced trans divorce also does not respect the ability of all people to choose who they marry, and then to decide between themselves whether they remain married – rather than having that decision made for them by government.

 

Forced trans divorce is in direct contravention of Article 26 of the International Covenant on Civil and Political Rights which provides that:

 

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

The amendments proposed in this Bill will help address these human rights breaches. If passed, it will ensure that nobody is left in the impossible situation of having to choose between staying married to the person they love and being able to access identity documentation that reflects their gender identity.

 

I therefore urge the Legal Affairs and Community Safety Committee to recommend the passage of the Births, Deaths and Marriages Registration Amendment Bill 2018 and for all members of Queensland Parliament to act on that recommendation.

 

Before I conclude this submission I would also note that forced trans divorce is not the only aspect of the Births, Deaths and Marriages Registration Act 2003 which breaches the human rights of trans and gender diverse people in Queensland.

 

In particular, their right to personal autonomy and self-determination is violated in three key ways:

 

  1. The requirement that people must have ‘sexual reassignment surgery’[i] before being able to update their sex on the birth register. This is inappropriate as not all transgender people want or are able to undertake such procedures (for a variety or reasons, including financial).

 

  1. The requirement that applications to note the reassignment of a person’s sex ‘must be accompanied by statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery’ [section 23(4)(b)]. The medicalisation of identity recognition processes is also inappropriate – doctors should not be ‘gatekeepers’ of the identity of trans and gender diverse people.

 

  1. The requirement that sex be marked as either male or female on the register. This binary categorisation does not recognise the diversity of sex and gender which exists in the community, and therefore imposes inaccurate identity documentation on some people.

 

I note that in her second reading speech Ms D’Ath stated that:

 

The Palaszczuk government is strongly committed to ensuring our laws support the rights of sex and gender diverse Queenslanders. The focus of the first public discussion paper for the recently commenced review of the BDMR Act is examining how Queensland life event registration services can improve legal recognition of lesbian, gay, bisexual, transgender and intersex Queenslanders and their families. I encourage all Queenslanders to access the discussion paper on the Get Involved website and have their say.

 

[NB The Registering life events: Recognising sex and gender diversity and same-sex families Discussion Paper can be found here. Submissions are due by 4 April.]

 

I look forward to the three human rights violations identified above being addressed through that process. However, I believe it is important they are highlighted here because, while the Births, Deaths and Marriages Registration Amendment Bill 2018 is an important step forward, it is by no means the end of the journey towards the full recognition and acceptance of trans and gender diverse Queenslanders.

 

If you would like additional information, or to clarify any of the above, please do not hesitate to contact me.

 

Sincerely

Alastair Lawrie

 

MemberImgHandler.ashx

Queensland Attorney-General, the Hon Yvette D’Ath MP.

 

Update 12 December 2018: The Births, Deaths and Marriages Registration Amendment Bill 2018 was passed by Queensland Parliament on 13 June, and commenced on 18 June, finally bringing forced trans divorce in that jurisdiction to an end. The consultation process about broader reforms to the Births, Deaths and Marriages Registration Act 2003 is ongoing.

 

Footnotes:

[i] Defined in the Act as:

‘means a surgical procedure involving the alteration of a person’s reproductive organs carried out:

(a) to help the person to be considered a member of the opposite sex; or

(b) to correct or eliminate ambiguities about the sex of the person.’

Submission re Queensland Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

Update

 

The Criminal Law (Historical Homosexual Convictions Expungement) Act 2017 was passed in Queensland Parliament on 10 October 2017, and took effect on 23 October.

 

This was a historic achievement, meaning the majority of people who have criminal convictions as a result of prohibitions on male homosexual conduct in that state can now apply to have those records expunged.

 

But it is only a partial victory – because people who were criminalised due to the unequal age of consent, which existed between 1991 and 2016, are not able to apply. That’s because section 18(2)(a) limits relevant offences to where:

 

“the other person who engaged, or allegedly engaged, in the act of omission constituting the offence –

(i) consented to the act or omission; and

(ii) was 18 years or more at the time the offence was committed or alleged to have been committed.”

 

This is an incredibly disappointing outcome, exposing men who would not have been convicted but for the homophobic unequal age of consent which operated for a quarter of a century, to many more years of living with unjust convictions on their criminal records. And it means the campaign to expand the expungement scheme must continue.

 

Update: 15 July 2017

 

Stop me if you’ve heard this one before.

 

The Queensland Parliament is considering the issue of the decriminalisation of homosexuality but, rather than treating LGBTI people the same as their cisgender heterosexual counterparts, it discriminates against gay and bisexual men, leaving them with criminal records that they would not have were it not for their sexual orientation.

 

No, we’re not talking about the Goss Labor Government’s fundamentally flawed decriminalisation Bill in 1990 which, while decriminalising sex between men over the age of 18, imposed an unequal age of consent for anal intercourse – an injustice that was only remedied in September last year.

 

Instead, we’re talking about 2017, as the Queensland Parliament, and the Palaszczuk Labor Government, appears intent on making the same mistake.

 

As I wrote in my submission to the Parliamentary Inquiry (see the full text at the bottom of this post), the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 will only deliver justice for some gay and bisexual men affected by past homophobic criminal laws, not all.

 

For men punished because of the unequal age of consent between 1991 and 2016, and for those who were convicted before 1991 but would not have been had they engaged in penis/vagina intercourse, this legislation simply perpetuates the injustices they have already suffered, leaving them with inappropriate criminal records.

 

This problem was raised by several people in submissions to the Legal Affairs and Community Safety Committee as part of their inquiry into this Bill (myself included). Unfortunately, rather than listen to the community, Committee members have chosen to listen to the unconvincing arguments put forward by the Department of Justice and Attorney-General (see below for an analysis of their responses on this issue).

 

In their Report, tabled yesterday (14 July), the Committee recommended only that the legislation be passed; it did not make any recommendations to amend the Bill to ensure that all Queenslanders adversely affected by past criminalisation of homosexuality can apply to have their records expunged.

 

This Report means it is now highly unlikely the Queensland Parliament will fix the mess created by the provisions of the Bill, a mess that compounds past mistakes and once again means gay and bisexual men are treated worse because of who they are.

 

This discrimination is enough to invoke a bad case of déjà vu. The only question is, will it take Queensland Parliament another quarter of a century to realise the error of its ways and amend the expungements scheme, in the same way it finally amended the age of consent? Because that is too long to wait for justice, for men who have waited long enough already.

 

Update: 8 July 2017

Following publication of the 13 submissions received by this inquiry (including mine, reproduced in full below), the Queensland Department of Justice and Attorney-General responded to the issues that had been identified. Their letter can be found at the Inquiry website here.

 

Given my submission was the first received that raised serious concerns about the failure of the Bill to expunge the convictions of people prosecuted because of the unequal age of consent between 1991 and 2016, as well as the omission of people aged 16 and 17 prior to 1991, the Department addressed these issues in response to my submission (on pages 2-4).

 

Unfortunately, its response was underwhelming, and in some places seems to have completely missed the point of the expungement scheme.

 

First, the Department’s weakest argument against including people convicted due to the unequal age of consent between 1991 and 2016 was that “[t]he scheme would cease to be historical in nature and it may be considered inappropriate for such recent convictions to be expunged administratively…”

 

To which the obvious response is that it should not matter when an injustice occurred – whether it was 1978 or 2008 – it should be remedied.

 

Second, and of much greater concern, the Department argued that “[e]xtending the scheme to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016 would mean that the scheme may extend to people who are currently serving sentences relevant to those convictions.”

 

The Department is effectively conceding that there may be people who are currently being punished for offences that would not have applied were it not for Queensland’s discriminatory treatment of anal intercourse for the past quarter of a century. That is not a justification not to extend the scheme – that is a reason to examine those convictions to determine whether they should be immediately overturned.

 

Third, the Department argued that including convictions between 1991 and 2016 due to the unequal age of consent “would require the decision maker to go behind the exercise of recent prosecutorial discretion”. To support this, the Department specifically cites the Director of Public Prosecution’s Guidelines as they existed at 30 August 2016.

 

There are two problems with this particular argument:

 

  • They are suggesting that people should rely on the ‘discretion’ not to prosecute, not just in recent years but also in the much less accepting (and more homophobic) 1990s. I am surely not the only person who harbours fears that at some point in the past 25 years this ‘discretion’ would have been exercised against gay and bisexual men;

 

  • Even the August 2016 guidelines are problematic. They state that “[a] child should not be prosecuted for sexual experimentation involving children of similar ages in consensual activity.” With all due respect, that is not the relevant criteria – the question is whether the people involved would have been convicted had it involved penis/vagina intercourse. Which means that an offence between a 16 or 17 year old and someone aged 18-plus that occurred between 1991 and 2016 should be included (even if that makes some parliamentarians feel uncomfortable).

 

Fourth, the Department argued that “if the scheme was extended to convictions for consensual anal intercourse with 16 and 17 year olds between 1991 and 2016, it would arguably be unfair to continue to restrict the scheme to convictions involving only homosexual activity.”

 

This is perhaps the only legitimate concern raised by the Department. Although it seems to me that, of the three possible options to deal with this issue, they have chosen the worst. These are:

 

  • To leave the scheme as is – which strands some gay and bisexual men without legal address, despite being punished because of laws that Minister for Health Cameron Dick conceded were “a source of discrimination against young people on the basis of their sexual orientation” (in his 2nd Reading Speech for the legislation that finally repealed the unequal age of consent).

 

  • To extend the scheme to gay and bisexual men affected by the unequal age of consent between 1991 and 2016, but not to anal intercourse between men and women. This may be prima facie discriminatory, but it does recognise the disproportionate impact of these laws on same-sex attracted people (who also did not have other lawful options for penetrative intercourse).

 

  • To widen the scheme to include non-LGBTI people who were also punished due to the differential treatment of anal intercourse between 1991 and 2016. This may substantially extend the scope of the scheme, but I would argue that it would be preferable to include these offences than to leave some gay and bisexual men with unfair and inappropriate criminal records, for sex offences, for the rest of their lives.

 

Fifth, and finally, is the worst of the arguments proffered by the Department: “[t]he Department notes that any expansion of the scheme would likely to [sic] increase the cost of the scheme.” That is not a reason to perpetuate injustice against gay and bisexual people who have been persecuted because of their sexual orientation under fundamentally unjust laws – that is a reason to provide additional funding (which, based on the Department’s letter, would likely be relatively modest).

 

Overall, then, I am extremely disappointed by the Department of Justice and Attorney-General’s response to my submission, which appears to be motivated more by staunchly defending the provisions of the current Bill than in grappling with the fact that, if passed, it would still leave some gay and bisexual men living with the consequences of past injustices.

 

Hopefully, the members of the Legal Affairs and Community Safety Committee are more persuaded by the submissions of myself, and others such as long-time campaigner John Frame that raised similar concerns, and propose amendments to address these outstanding issues. Their report is due by Friday 14 July, and I will provide a further update based on their recommendations.

 

Original Post

The Queensland Palaszczuk Labor Government has introduced legislation to establish a process whereby (some) people affected by the historical criminalisation of homosexuality in that state can apply to have those criminal records expunged.

This Bill is currently being considered by the Queensland Parliament Legal Affairs and Community Safety Committee. My submission to their inquiry is published below. For more details on the Bill, and the Committee’s examination of it, click here.

 

Acting Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

c/- lacsc@parliament.qld.gov.au

 

Friday 26 May 2017

 

Dear Committee

 

Submission re Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017

 

Thank you for the opportunity to provide a submission in relation to the above-named Bill.

 

I support this legislation in principle, given it is aimed at redressing historical injustices experienced by members of the Queensland lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

This Bill builds on the apology, delivered by Premier Annastacia Palaszczuk in Queensland Parliament on 11 May this year, in which she said:

 

“This Legislative Assembly offers its unreserved and sincere apology to all those persons who suffered from prejudice as a result of the discriminatory laws passed by this House, and we acknowledge that your pain and suffering continues.

 

“We acknowledge that shame, guilt and secrecy carried by too many for too long.

 

“Today, in this Legislative Assembly, we place on the record for future generations our deep regret and say to all those affected, we are sorry that the laws of this state, your State, let you down.

 

“To all those affected we say sorry.”

 

These noble sentiments were also reflected in the second reading speech for the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 itself given by Attorney-General Yvette D’Ath:

 

“As this parliament apologises this afternoon, we should never forget that this abuse, this discrimination and this hatred was within our lifetime, and it was done in our name. We have seen important law reform since that time, over many years, in many stages. That includes significant reforms passed in the current Palaszczuk government, some with bipartisan support. Despite these important legislative changes, the pain and anguish caused by that earlier discrimination has never been removed for those affected Queenslanders. I am very proud to be a Labor Attorney-General finishing the important work that the Goss government started, and I am determined to get it right.”

 

Unfortunately, while I support both of these statements, on a practical level I cannot support the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 in its current form.

 

That is because the Bill fails to address all relevant historical homosexual convictions, and instead only offers redress for one subset of the people affected by the criminalisation of homosexuality in Queensland.

 

This failure is based on two key flaws in the proposed expungement scheme.

 

The first flaw is that the Bill is limited to offences committed before 19 January 1991 – which is when the Criminal Code and Another Act Amendment Act 1990 came into effect.

 

As noted in the Explanatory Notes for the Bill, this is intended to “maintain the nexus between the proposed expungement scheme and decriminalisation.”

 

Such a ‘nexus’ would be appropriate if the legislation that implemented decriminalisation was itself non-discriminatory.

 

However, as current members of the Queensland Parliament are no doubt aware, the Criminal Code and Another Act Amendment Act 1990 was fundamentally unjust, in that it continued to subject anal intercourse to a higher age of consent (18 years) than other forms of sex (16 years).

 

This discriminatory approach primarily affected the gay and bisexual male community, and meant that for the following 25 years young same-sex attracted men in Queensland were disproportionately exposed to potential criminal sanctions for penetrative intercourse.

 

This discriminatory approach was only remedied in September last year, with the passage of the Health and Other Legislation Amendment Act 2016. In introducing that legislation, Minister for Health Cameron Dick stated:

 

“The Goss Labor government in 1990 decriminalised homosexuality, but that government introduced an anal intercourse law. The age of consent for consensual anal intercourse was set at 18 years.

 

“The expert panel of health experts asked to consider the implications of the current law advised me that the disparity in the age of consent for different sexual activity has adverse impacts on young people and recommended a consistent age of consent. Queensland cannot continue to discriminate between forms of sexual intercourse, particularly when we know that young people feel compelled to withhold information about their sexual history from health practitioners for fear of possible legal consequences, whether for themselves or their partner. This can have serious implications for their medical treatment, particularly as unprotected anal intercourse is the highest risk behaviour for transmission of HIV. It also has the effect of stigmatising same-sex relationships which in itself can be harmful for an individual’s wellbeing.”

 

Minister Dick concluded his speech by noting that:

 

“The Palaszczuk government is committed to improving sexual health outcomes for all Queenslanders regardless of their sexual orientation or preferences. The bill demonstrates this by standardising the age of consent for all forms of sexual intercourse, reflecting community expectations and removing a source of discrimination against young people on the basis of their sexual orientation…[emphasis added].

 

The Palaszczuk Government was right to identify that an unequal age of consent specifically discriminated against young people on the basis of their homosexuality and bisexuality. They, and the Queensland Parliament more generally, were also right to remedy this injustice by passing the Health and Other Legislation Amendment Act 2016 to finally introduce an equal age of consent.

 

Which makes it all-the-more puzzling why they have made the wrong decision in limiting the operation of the historical homosexual convictions expungement scheme to offences that occurred before 19 January 1991.

 

By tying the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 to the ‘act’ of decriminalisation, they have effectively tied the Queensland expungement scheme to legislation that itself was discriminatory.

 

In doing so, they have developed a scheme that would deliberately exclude people who were charged or convicted for offences between January 1991 and September 2016 who would not have been were it not for their sexual orientation.

 

Those charges and convictions were also unjust, and that injustice should be addressed through this expungement scheme. To do otherwise – to exclude people adversely affected by the unequal age of consent which existed for a quarter of a century – is simply to perpetuate this discrimination.

 

It would also leave Queensland out of step with other Australian jurisdictions – with the equivalent NSW scheme allowing people charged or convicted because of the unequal age of consent which operated there between 1984 and 2003 to apply for those records to be expunged. Queensland should follow suit.

 

Recommendation 1: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions that were caused by the unequal age of consent for anal intercourse between January 1991 and September 2016.

 

The second, related flaw of this legislation is that, even for criminal offences committed prior to 19 January 1991, the right to apply to have these records expunged is limited to acts in which both parties were aged 18 years or over.

 

The rationale for this decision was explained in Attorney-General Yvette D’Ath’s second reading speech in the following way:

 

“[T]he criteria for the expungement of a Criminal Code male homosexual offence in the bill has regard to the age of consent at the date of decriminalisation on 19 January 1991 – that is, 18 years. This retains the expungement scheme’s nexus with the decriminalisation of consensual adult homosexual activity and confirms that the scheme is only applicable to historical charges and convictions. It also ensures that there is no discrimination between people charged or convicted with offences between 1991 and 2016 or people charged before the age of consent for sexual activity other than anal intercourse was changed in Queensland in 1976 from 17 years to 16 years.”

 

The question of what to do about the relevant age of consent prior to 1991 goes to the heart of the purpose of the expungement scheme.

 

If the purpose is simply to address offences prior to January 1991 that were decriminalised following the passage of the Criminal Code and Another Act Amendment Act 1990, then the approach adopted in the legislation, which limits the relevant age of consent to 18 years for all offences, admittedly has some internal consistency.

 

However, if the purpose of the expungement scheme is instead to provide redress to people who were charged or convicted primarily because of their sexual orientation, then I would argue that it must go further.

 

On a practical level, if this legislation is aimed at removing the stain of homophobia and biphobia from past laws, and above all from the criminal records of those who bore their impact, then the relevant test should not be how those acts were treated in 26-year-old legislation that, as we have seen above, was itself inherently flawed.

 

Instead, I believe the test should be whether the relevant act would have been criminalised if it involved consensual intercourse between a man and a woman, and specifically penis/vagina sex. Such a test goes to the core issue, which is discrimination – that the law treated gay and bisexual men differently to heterosexual people.

 

If this principle is adopted, then the scheme would allow people to apply with respect to:

 

  • Charges and convictions where both parties were 17 and over prior to 1976 (when the age of consent for penis/vagina sex was reduced to 16) and
  • Charges and convictions where both parties were 16 and over from 1976 onwards.

 

In this way, the legislation would actually better reflect the view, expressed in the Explanatory Notes, that:

 

“It is also an acknowledgment that the age of consent has changed over the years in accordance with changing societal values and expectations…”

 

That is because it would be based on changing societal attitudes to the age of consent for heterosexual, non-anal, intercourse, and therefore removed from discriminatory attitudes towards anal intercourse, and especially intercourse between men.

 

Further, if this principle was adopted, it would also provide philosophical consistency between those offences before January 1991 and those between January 1991 and September 2016 – provided Recommendation 1 is also adopted, the relevant age of consent would be 16 years for both.

 

Finally, this approach would also be more consistent with the position adopted by other jurisdictions – with section 105G of Victoria’s Sentencing Act 1991 setting out the relevant test as:

 

“on the balance of probabilities, both of the following tests are satisfied in relation to the entitled person:

(i) the entitled person would not have been charged with the historical homosexual offence but for the fact that the entitled person was suspected of having engaged in the conduct constituting the offence for the purposes of, or in connection with, sexual activity of a homosexual nature;

(ii) that conduct, if engaged in by the entitled person at the time of the making of the application, would not constitute an offence under the law of Victoria.”

 

Queensland should similarly ensure that the primary purpose of its expungement scheme is to provide redress for gay and bisexual men who were charged or convicted for offences for penetrative intercourse that would not have applied to penis/vagina sex between men and women.

 

Therefore, the relevant age of consent should be the same as that which applied to heterosexual, non-anal, sex: 17 before 1976, and 16 from that point onwards.

 

Recommendation 2: The Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 should apply to charges and convictions for offences where both parties were 17 and over before 1976, and 16 and over from 1976 onwards.

 

As stated earlier, I support the stated intention of the Queensland Government in developing, and introducing, this legislation: to provide redress for past injustices against members of the LGBTI community.

 

However, as I have explained above, I believe this admirable objective is imperfectly realised in the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017 as currently drafted.

 

That is because it would only achieve justice for some of the people adversely impacted by the past criminalisation of male same-sex activity, and not all.

 

If the purpose of the expungement scheme is to provide redress for the homophobic and biphobic application of the criminal law – and I suggest that this is the most appropriate objective – then it should apply to:

 

  • Offences between January 1991 and September 2016 where both people were aged 16 and over
  • Offences between 1976 and 1991 where both people were aged 16 and over, and
  • Offences before 1976 where both people were aged 17 and over.

 

In my view, this would be the closest approximation of treating all people – LGBTI and non-LGBTI alike – equally.

 

It would also ensure that more people, who have been subject to discrimination on the basis of their sexual orientation, and who continue to experience the consequences of this mistreatment, have access to expungement.

 

As observed by Attorney-General Yvette D’Ath in her second reading speech:

 

“We know that this is a deeply hurtful and deeply personal issue for many Queenslanders forced to live with the impact of discriminatory laws for far too long. We know that past convictions have meant there are various circumstances in which convictions or charges for criminal offences have been required to be disclosed.

 

“Forcing the repeated disclosure of those convictions and charges to potential employers, public administrators and others has caused people inconvenience and embarrassment and, worst of all, has forced them to continually relive the trauma associated with their arrest, charge and conviction. This has inhibited people from pursuing employment opportunities, volunteering in their communities and fully participating in civic life right up until today. It hurt those individuals, affected their friends and family, and prevented their full involvement in, and contribution to, our community. In doing so, it not only impacted individuals; it lessened our community more broadly.”

 

I wholeheartedly agree. But I also humbly suggest that these statements don’t just apply to ‘adults’ charged or convicted for offences committed before 19 January 1991 – they also describe the injustice experienced by people who suffered because of the discriminatory age of consent between January 1991 and September 2016.

 

Similarly, these sentiments reflect the adverse treatment of gay and bisexual men charged or convicted for penetrative intercourse before January 1991 who would not have been had it involved penis/vagina sex.

 

Both of these groups deserve justice too. That can and should be delivered through these two amendments to the Criminal Law (Historical Homosexual Convictions Expungement) Bill 2017, changes that strive to fully remove the stain of homophobia and biphobia from Queensland’s laws, thereby lessening the awful impact of discrimination on generations of gay and bisexual men.

 

Thank you for taking this submission into consideration as part of this inquiry. If the Committee would like to clarify any of the above, or to request additional information, please contact me at the details provided.

 

Sincerely

Alastair Lawrie

 

Palaszczuk

Premier Palaszczuk’s apology was welcome, but the Bill which gives it practical effect should cover all people adversely affected by historical convictions, not just some.

Submission re Queensland Criminal Law Amendment Bill 2016

Update 21 March 2017:

Tonight, Queensland Parliament has voted to – finally – abolish the homosexual advance defence (sometimes referred to as the ‘gay panic’ defence) from state law.

This move, while long overdue, is obviously welcome, removing one more piece of homophobic legislation from the Queensland statute books.

To read more about the passage of the Criminal Law Amendment Bill 2016, see tonight’s report in the Brisbane TimesGay panic laws pass Queensland Parliament, removing partial defence’.

Finally, I thank Mr Rob Molhoek, LNP member for Southport, for this ‘shout-out’ in his speech on the Bill:

“In his submission to the committee, Mr Alistair [sic] Lawrie commented that—

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

I agree with that statement made by Mr Lawrie. I firmly believe that discrimination of any type, be it based on sexuality, age, gender or any other matter, has no place in our laws. That is why I support this proposed legislation.”

Update 22 February 2017:

The Report by the Queensland Legal Affairs and Community Safety Committee into the Criminal Law Amendment Bill 2016 was handed down yesterday. For a copy of the report, click here.

Pleasingly, the Committee’s main recommendation is that the Bill – which would finally abolish the homosexual advance defence or ‘gay panic defence’ in Queensland – should be passed.

The discussion of the abolition of this partial defence to murder, from pages 4 to 18, features a number of references to my own submission (which can be found in the post below).

This includes consideration of my concerns (and the concerns of others) about the drafting of and definitions for both ‘circumstances of an exceptional character’ and ‘unwanted sexual advance’.

I welcome the Committee’s interest in these issues, as well as their agreement to my own recommendation that the operation of the law as amended should be reviewed after 5 years to ensure it has functioned as intended (on page 18: “The committee agrees that the proposals in Clause 10 of the Bill should be reviewed in five years to establish whether they have operated as intended”).

For more on how this committee inquiry has been received, see The Brisbane Times article ‘Gay panic law reform bill should be passed, committee recommends’. 

Whether the Bill is passed is now up to Queensland Parliament, including the crossbenchers who hold the balance of power. Hopefully they agree to consign the homosexual advance defence to the history books as quickly as possible.

Original post:

The Palaszczuk Labor Government has proposed legislation that would, among other things, finally abolish the ‘homosexual advance defence’, or ‘gay panic’ defence, under Queensland law.

Its Criminal Law Amendment Bill 2016 is currently the subject of an inquiry by the Legal Affairs and Community Safety Committee. Full details of the Inquiry can be found here – my submission to the inquiry is included below.

The Committee is due to report by 21 February 2017. Hopefully, the homosexual advance defence is consigned to the history books shortly thereafter.

**********

The Research Director

Legal Affairs and Community Safety Committee

Parliament House

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

Monday 16 January 2017

Dear Committee,

Submission re Criminal Law Amendment Bill 2016

Thank you for the opportunity to provide a submission regarding the Criminal Law Amendment Bill 2016.

In this submission I will be focusing exclusively on the proposed amendments to section 304 of the Queensland Criminal Code, as contained in clause 10 of the Bill.

Overall, I welcome these proposed amendments, given the stated intention of the Queensland Government that they will give effect to their election commitment to repeal the homosexual advance defence, or ‘gay panic’ defence.

As noted by Attorney-General the Hon Yvette D’Ath in her second reading speech:

“The amendment to section 304 provides that the partial defence is excluded if the sudden provocation is based on an unwanted sexual advance, other than in circumstances of an exceptional character. I know that there has developed a reference to this amendment as removing the ‘gay panic’ defence – that is, a situation where the defendant claims to have been provoked to murder by a homosexual advance by the deceased. I absolutely acknowledge this amendment’s importance to the lesbian, gay, bisexual, trans and intersex community – as it is to all Queenslanders who have voiced their criticism that such an advance could establish the partial defence.”

Indeed, the abolition of this defence, in the two Australian jurisdictions where it remains in place (Queensland and South Australia) is a priority for the LGBTI community nation-wide.

That is because the idea that a lesser level of criminal punishment – manslaughter rather than murder – should apply where a man kills another man because of an unwanted sexual advance is, to put it simply, abhorrent.

This point was made eloquently by Justice Kirby in his dissent in the High Court’s decision in Green v The Queen [1997] HCA 50:

“If every woman who was the subject of a “gentle”, “non-aggressive” although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended… Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones sexual violence by people who take the law into their own hands.”

The truly offensive nature of the homosexual advance defence is revealed by asking why it invariably applies to non-violent sexual advances by a man to another man. As Kirby asks, rhetorically, if a non-violent sexual advance from one man to another was sufficient to justify forming the intention to kill or seriously wound, why should this not also apply to a non-violent sexual advance by a man to a woman? Further, why shouldn’t a woman who receives an unwanted non-violent sexual advance from another woman have access to the partial defence of provocation? Why doesn’t it also apply to a man who receives an unwanted non-violent sexual advance from a woman?

The answer is that in all of these cases society justifiably expects the recipient of the unwanted sexual advance to exercise self-control. A violent response to an unwanted non-violent sexual advance, to the extent that the recipient forms the intention to kill or seriously wound, is so beyond the pale, or so far out of the ordinary, that we do not extend any reduction in culpability to the offender in these circumstances.

In my opinion, there is nothing so different, so special or so extraordinary, in the situation where the non-violent sexual advance is made by a man to another man, as to justify offering the offender in such cases any extra legal protection. In contemporary Australia, a man who receives an unwanted sexual advance should exercise the same level of self-control as we expect of any other person.

To have a separate legal standard apply to these cases is homophobic because it implies there is something so objectionable about a non-violent sexual advance by a man to another man that a violent reaction is almost to be expected, and at least somewhat excused. This does not reflect the reality of contemporary Australia, where, with the exception of marriage, gay men enjoy (most of) the same rights as other men, and are accepted as equals by the majority of society.

Even if a small minority of people remain firmly intolerant of homosexuality, that does not mean there should be a ‘special’ law to reduce the culpability of such a person where they are confronted by an unwanted homosexual sexual advance. To retain such a provision is unjust and discriminatory, and is a mark against any legal system which aspires to fairness.

The above discussion outlines why the homosexual advance defence is wrong in principle. What should not be forgotten is that the homosexual advance defence is also wrong in practice, or in the outcomes which it generates. After all, the defence does not simply exist in the statute books, ignored and unused. Instead, it has been argued in a number of different criminal cases, sometimes successfully.

This means there are real offenders who are in prison (or who have already been released), who have had their conviction reduced from murder to manslaughter, and most likely their sentence reduced along with it, simply because they killed in response to an non-violent homosexual advance. The legal system has operated to reduce the liability of these offenders even when broader society does not accept that such a reduction is justified. As a result, these offenders have not been adequately punished, meaning that above all these victims have not received justice.

Similarly, the family members and friends of the victims killed in such circumstances have witnessed the trials of these offenders, expecting justice to be served, only to find that the killer is not considered a murderer under the law. Instead, these family members and friends find some level of blame is placed on the actions of the victim, that somehow by engaging in a non-violent sexual advance they have helped to cause and even partly deserved their own death.

For all of these reasons, I strongly support the abolition of the homosexual advance defence, or ‘gay panic’ defence, in any jurisdiction where it remains.

Therefore, I commend the Queensland Palaszczuk Labor Government for its commitment to remove this abhorrent law from the statute books via the Criminal Law Amendment Bill 2016.

It does so through the inclusion of clause 10, which would amend section 304 of the Queensland Criminal Code, the provision that establishes the partial defence to murder of provocation.

Specifically, I welcome the proposed insertion of new sub-section 304(3A):

“Further, sub-section (1) does not apply, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person.”

Prima facie, the inclusion of this new sub-section substantively removes the partial defence of provocation for circumstances where the ‘provoking conduct’ was an unwanted, non-violent sexual advance.

In principle, then, the homosexual advance defence, or ‘gay panic’ defence, would be abolished in Queensland by the passage of this Bill.

However, I do have two concerns about the drafting of the amendments to section 304, and their potential operation.

First, by including the phrase ‘other than in circumstances of an exceptional character’, I am concerned that this leaves the door slightly ajar to at least some cases where the homosexual advance defence may be sought to be used.

I note that, for the purposes of new sub-section 3A, there is no restriction on what might constitute ‘circumstances of an exceptional character’ (with proposed new sub-section 6A merely providing that regard may be had to any history of violence, or of sexual conduct, between the offender and the victim).

This leaves room for judicial interpretation, and the possibility, albeit remote, that the homosexual advance defence may still be successfully raised.

For this reason, I suggest that the operation of the reforms to 304 be reviewed after a period of five years, to assess whether these amendments have operated as intended.

Recommendation 1: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the term ‘circumstances of an exceptional character’ has been applied in cases where a defendant has sought to invoke what would be described as the homosexual advance defence.

The second concern I have about the proposed amendments is the inclusion of the definition of ‘unwanted sexual advance’ in new sub-section 9:

“In this section-

unwanted sexual advance, to a person, means a sexual advance that-

(a) is unwanted by the person; and

(b) if the sexual advance involves touching the person – involves only minor touching.

Examples of what may be minor touching depending on all the relevant circumstances-

patting, pinching, grabbing or brushing against the person, even if the touching is an offence against section 352(1)(a) or another provision of this Code or another Act.”

The attempt to provide clarity of what forms an unwanted sexual advance, as a means to prevent the successful use of the homosexual advance defence, is clearly welcome.

The reference to section 352(1)(a) is also useful because, as the Attorney-General noted in her second reading speech “the spectrum of conduct that falls within the offence of sexual assault is very broad”, and this should not automatically result in an increased ability of a murderer to seek to have their charge downgraded.

However, the creation of a definition of unwanted sexual advance creates the risk, and arguably the incentive, for the perpetrator of these types of offences to exaggerate the ‘touching’ that was involved in the unwanted sexual advance that preceded the murder.

Given the nature of these cases, there will necessarily be no ability for the victim to provide any evidence disputing this exaggeration.

It would obviously be disappointing if, in attempting to remove the homosexual advance defence, the Government introduces a provision that instead allows its continued use, in certain circumstances, with the defendant induced to increase their claims about the unwanted sexual advance by the deceased.

It is difficult to see how this particular risk can be completely excluded – other than by adopting the approach of some other states and territories (including Victoria, Western Australia and Tasmania) to abolish the partial defence of provocation entirely.

As with the definition of ‘circumstances of an exceptional character’ above, I suggest that the operation of these provisions generally, and the definition of ‘unwanted sexual advance’ specifically, be reviewed after five years, to determine whether there have been any unintended or unforeseen consequences of these amendments.

If there have been, then at that point it may be appropriate to consider abolishing the partial defence of provocation altogether, and replacing it with specific defences or partial defences for a limited range of scenarios (for example, in the context of family violence).

Recommendation 2: The operation of the proposed reforms to section 304 should be reviewed after five years, to assess how they have operated in practice, including how the definition of ‘unwanted sexual advance’ has been applied, and whether it has simply induced defendants to exaggerate their claims about the unwanted sexual advance by the deceased.

Thank you again for the opportunity to provide this submission regarding the Criminal Law Amendment Bill 2016, and specifically about clause 10, a provision that is intended to finally abolish the homosexual advance defence, or ‘gay panic’ defence, in Queensland.

As indicated above, I welcome these reforms in principle. The above two recommendations are offered in order to help ensure that the intention of the Bill is reflected in practice.

I can be contacted at the details provided with this submission, should the Committee have any questions about this submission, or require any additional information about the matters raised.

Sincerely

Alastair Lawrie

Yvette D'Ath

Queensland Attorney-General Yvette D’Ath, who introduced the Criminal Law Amendment Bill on 30 November last year.

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

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

 

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

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

 

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

 

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

 

**********

 

Protected Attributes

 

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

 

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

 

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

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

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

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

 

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

 

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

 

Again, this could be rectified with the introduction of ‘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).

 

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

 

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.

 

Palaszczuk

With the recent re-election of the Palaszczuk Government – now with a majority – there is no excuse for it not to update the Anti-Discrimination Act 1991.

 

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”.

Submission re Queensland Adoption and Other Legislation Amendment Bill 2016

The Queensland Labor Government has proposed legislation to finally allow adoption by same-sex couples in that state. The Adoption and Other Legislation Amendment Bill 2016 is currently being considered by a Parliamentary Committee, before being debated and voted upon later in 2016.

My submission to the Committee is included below. If you are reading this post on Wednesday 12 October, you can also watch the Committee’s public hearings about the Bill here.

**********

Research Director

Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee

Parliament House

George St

Brisbane QLD 4000

c/- hcdsdfvpc@parliament.qld.gov.au

Tuesday 4 October 2016

To the Committee

Submission re Queensland Adoption and Other Legislation Amendment Bill 2016

Thank you for the opportunity to provide a submission regarding the Adoption and Other Legislation Amendment Bill (‘the Bill’).

In this submission, I will focus on one aspect of this legislation – the proposed reform to allow same-sex couples to adopt children.

This reform is outlined in clause 13 of the Bill, which would amend section 76 of the Adoption Act 2009 to remove the requirement that a person expressing an interest in being assessed for suitability as an adoptive parent has a spouse, and that their spouse is not of the same gender as themself.

I strongly support this reform, for two reasons.

First, it removes unjustifiable discrimination against lesbian, gay, bisexual, transgender and intersex people.

The overwhelming majority of credible research shows that children raised in same-sex parented families are as healthy, and as happy, as those raised by mixed-sex couples.

As Deborah Dempsey found in the 2013 research paper “Same-sex parented families in Australia”[i]:

“[o]verall, research to date considerably challenges the point of view that same-sex parented families are harmful to children. Children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families”.

This conclusion was supported by research in the following year, by Dr Simon Crouch and others, that:

“children with same-sex attracted parents in Australia are being raised in a diverse range of family types. These children are faring well on most measures of child health and wellbeing, and demonstrate higher levels of family cohesion than population samples.”[ii]

These findings accord with reputable studies from overseas, with evidence consistently revealing that children from same-sex parented families experience the same levels of physical and mental health as their peers, if not better.

Based on this research, continuing to impose legal criteria that restricts prospective adoptive parents to those who have a spouse of a different gender, can be seen for what it really is – discrimination against LGBTI people that is both unnecessary, and completely without foundation.

It is time such discrimination was removed from the statute book, and I am grateful that the Bill will accomplish this.

Second, and even more importantly, removing this discrimination is in the best interests of children because it will help ensure an adopted child has the best possible adoptive parents.

As the research demonstrates, parenting ability has nothing whatsoever to do with sexual orientation, gender identity or intersex status.

Some cisgender heterosexual people make wonderful parents, while others do not. The same is undoubtedly true of members of the LGBTI community.

But to determine that only people who are in mixed-gender relationships may apply to become adoptive parents, while the LGBTI people who would make wonderful parents may not, carries with it the inherent risk that a child misses out on being adopted by more suitable parents solely because past Queensland Parliaments have determined that those people do not have the ‘right’ sexual orientation, gender identity or sex.

After all, it is only logical that, if the pool of prospective adoptive parents is reduced because of irrelevant criteria, the overall depth and quality of that pool is diminished.

Indeed, this argument was explicitly acknowledged in the second reading speech by Minister Fentiman, who noted that:

“[t]he bill recognises the need to provide fairness and equity and amends eligibility criteria to enable same-sex couples, single people and people undergoing fertility treatment to adopt a child. This will result in a broader and more flexible pool of people from which to select for assessment as suitable adoptive parents. Importantly, this change will mean more options will be available for matching a child to prospective adoptive parents who will best meet the child’s individual needs.”

On the basis of the above two reasons – that the Bill will remove unjust discrimination against LGBTI people, and that the proposed changes are in the best interests of children who are adopted – I urge the Committee to recommend that the Adoption and Other Legislation Amendment Bill 2016 be passed.

Ultimately, I call on the Queensland Parliament to support this reform as a matter of priority, thus recognising the diversity of modern families, and ensuring that they are treated equally under the law.

Thank you again for the opportunity to provide a submission on this important Bill. Should the Committee want any additional information, or wish to clarify any of the above, I can be contacted at the details provided below.

Sincerely

Alastair Lawrie

 

[Update 10 January 2017: Queensland Parliament passed legislation to allow for adoption by same-sex couples on Wednesday 2 November 2016, removing a major barrier to the equal treatment of LGBTI people, and relationships, under Queensland law. The Brisbane Times reported on this long-overdue law reform success here.]

 

Footnotes:

[i] Dempsey, D, “Same-sex parented families in Australia”, Child Family Community Australia, Research Paper No. 18, 2013.

[ii] Crouch, S, Waters, E McNair, R, Power, J, Davis, E, “Parent-reported measures of child health and wellbeing in same-sex parented families: a cross-sectional survey”, BMC Public Health, 21 June 2014.

Submission re Queensland Bill to (Finally) Equalise the Age of Consent

Updated 19 January 2017:

The Queensland Parliament voted to equalise the age of consent on Thursday 15 September 2016 (as reported by the Guardian Australia here: ‘Queensland votes to equalise age of consent for all sexual acts’).

This reform, which means the age of consent for anal sex is lowered to 16, to match the age of consent for other forms of sexual intercourse, removes a provision that had a disproportionate impact on young gay, bisexual and same-sex attracted men for a quarter of a century (myself included).

Queensland was the last jurisdiction in Australia to equalise its age of consent, coming years, and in most cases decades, after other states and territories.

Original Post:

The Queensland Government has introduced a Bill to, amongst other things, finally equalise the age of consent for anal intercourse.

This legislation – the Health and Other Legislation Amendment Bill 2016 – was referred to the Legal Affairs and Community Safety Committee for detailed consideration. The details of their inquiry can be found here.

The following is my submission:

Legal Affairs and Community Safety Committee

lacsc@parliament.qld.gov.au

Friday 22 July 2016

To the Committee

Submission re the Health and Other Legislation Amendment Bill 2016

Thank you for the opportunity to provide a submission about the Health and Other Legislation Amendment Bill 2016 (‘the Bill’).

In this submission, I will focus on Part 2 of the Bill, namely those provisions seeking to amend the Queensland Criminal Code.

Specifically, I write to support the long overdue equalisation of the age of consent for anal intercourse in Queensland.

I do so as a gay man who was born in Queensland in 1978, and who lived there until 1996, although now lives in Sydney.

The above dates mean that, for the first 12 years of my life, homosexual acts were criminalised I my home state – and I recall being vaguely aware of this fact, that ‘gay = criminal’, as I grew up in Central Queensland.

I am also old enough to remember, in slightly more detail, the historic passage of legislation in 1990 that decriminalised sex between men.

Indeed, it was only a couple of months later, when I first arrived at the religious boarding school in Brisbane that would be my home for the following five years, that I first started to realise that I was gay myself.

What I didn’t fully comprehend for another couple of years – but had certainly figured out by the time I turned 16 – was that the Goss Labor Government, and Queensland Parliament more generally, had left the important job of decriminalisation only half-done.

While they decriminalised sex between adult gay and bisexual men, they had also introduced a new form of discrimination – with the age of consent set at 18 for anal intercourse (which they referred to as ‘sodomy’), and 16 for everything else.

Admittedly, this new law technically applied to anal intercourse between anyone – meaning that 16 or 17 year old cisgender heterosexual people engaging in this form of sex were also criminalised – but it is clear they were not the real ‘targets’.

The Parliament knew it. The media knew it. The LGBTI community knew it. And this (then) teenage gay boy, even though he was still deeply entrenched in the closet, knew it too. This law was primarily concerned with prohibiting same-sex activity among teenage males.

For the years 1994 to 1996, while I was aged 16 and 17 and still living in Queensland, I was fully aware that the law treated me differently simply because of my sexual orientation.

For whatever reason – whether it was blatant homophobia, personal distaste or ‘squeamishness’ about anal intercourse, misguided beliefs about health risks or malicious stereotypes about homosexual ‘recruitment’ – my state’s lawmakers had decided to single me, and people like me, out as being lesser than our peers.

It was just one more reminder of the societal homophobia surrounding me, everywhere I looked, and one more factor that made it extremely difficult to come out to my family and friends.

I also believe it contributed to the lack of any LGBTI sexual health education during my time at high school (although obviously the religious nature of the school played a part too), something that was actually a health risk (especially given these were the peak years of deaths from AIDS-related illness in Australia, before the advent of life-saving treatments).

Of course, my story is by no means unique – there have literally been tens of thousands of young gay and bisexual men who have grown up in Queensland since the passage of the unequal age of consent in 1990. And, just like me, many of them have experienced adverse consequences due to these discriminatory laws.

Indeed, the explanatory memorandum of the Bill notes that “[s]ome in the community have identified the inconsistent age of consent for anal sex in the Criminal Code as a barrier to young people accessing safe sex education regarding anal intercourse, with gay and bisexual youth being denied peer acceptance and community support.”

It further observes that “[t]he panel [convened to consider this issue] noted that young people in same sex relationships may feel compelled to withhold information about their sexual history from their health practitioner for fear of the possible legal consequences, whether for themselves or their partner. This may have implications in terms of the young person’s access to appropriate medical treatment and also has the impact of stigmatising their relationship.”

Finally, “[t]he expert panel considered that using the term sodomy may stigmatise this form of intercourse, and homosexual relationships in particular.”

In my view, these are all compelling reasons to equalise the age of consent between anal intercourse and other forms of intercourse, and to update the language that is used in the Criminal Code to be more accurate and inclusive.

What is disappointing, even distressing, is that it has taken successive Queensland Governments more than 25 years to agree with this position and to finally take steps to remedy this injustice.

That’s a quarter of a century of prejudiced provisions, in the state’s criminal law, applying to young gay and bisexual men.

A quarter of a century sending a message to people that they are not equal simply because of who they are.

A quarter of a century limiting the sexual health education provided to young gay and bisexual mean.

A quarter of a century undermining the ability of tens of thousands of people, just like me, from accessing health services without fear of discriminatory treatment.

A quarter of a century of the Queensland Government and Parliament telling the LGBTI community, in yet another way, that is was not worthy of their respect.

And so, while I congratulate the decision by the Palaszczuk Labor Government to introduce this Bill to belatedly equalise the age of consent, and look forward to it being implemented later this year, I cannot help but take this moment to also reflect on, and condemn, the failure of previous Governments – from the Goss Labor Government, to the Borbidge Coalition, Beattie and Bligh Labor and Newman Liberal-National Governments – to remove these abhorrent provisions from the Queensland Criminal Code.

Their inaction on this issue has undeniably been to the detriment of generations of young gay and bisexual men, and it should not be forgotten.

Sincerely

Alastair Lawrie

Wayne Goss

Former Queensland Premier Wayne Goss, whose election victory in 1989 led to the decriminalisation of homosexuality 12 months later. But, for 16 and 17 year old gay and bisexual men, full decriminalisation has taken another quarter of a century.