No 12 The End (Almost) of the Homosexual Advance Defence in NSW

Posted on December 11, 2013 by Alastair Lawrie

One of the more pleasing aspects of law reform in NSW over the past 12 months has been signs of progress – at last – on the subject of the homosexual advance (or “gay panic”) defence.

The Legislative Council Select Committee on the Partial Defence of Provocation, chaired by Mr Fred Nile, handed down its long-awaited report on 23 April. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation_Final%20report.pdf)

The Committee explicitly and unanimously recommended that the homosexual advance defence should be repealed. Recommendation 6 of their Report reads: “[t]hat the NSW Government introduce an amendment to section 23 of the Crimes Act 1900 to ensure that the partial defence [of provocation] is not available to defendants who… respond to a non-violent sexual advance by the victim.”

One month later, on May 22, Premier Barry O’Farrell confirmed that the NSW Government would indeed act to ensure that the partial defence of provocation, which if successful reduces a murder conviction to manslaughter, does not apply in circumstances where there is only a non-violent sexual advance. (http://www.news.com.au/national/breaking-news/provocation-laws-to-be-changed-in-nsw/story-e6frfku9-1226648578317)

In October, the Government tabled its response to the Committee. It accepted the policy intention of the Committee’s Report, and included an Exposure Draft Crimes Amendment (Provocation) Bill 2013 for public consultation. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation%20-%20Govt%20response.pdf)

As part of that Exposure Draft Bill, which reframes the partial defence of provocation to a partial defence of extreme provocation, it is proposed that the new section 23 would include a clause providing that “[c]onduct of the deceased does not constitute extreme provocation if… the conduct was only a non-violent sexual advance to the accused.”

In short, if this Bill is introduced into and passed by the NSW Parliament then the stain of the homosexual advance (or ‘gay panic’) defence will finally be removed from the law books of NSW for good. And the signs continue to be encouraging – just this week, Premier O’Farrell told 2GB radio that it was the Government’s intention that the Bill will be “hopefully through the Parliament by the end of February” (audio starting at 6mins40seconds: http://www.2gb.com/audioplayer/25171#.Uqf1xyct2RM).

Which would be not a moment too soon. Because this is not some historical artefact, gathering dust somewhere, sitting neglected on a shelf. The homosexual advance defence has been used, and used regularly, over the last 20 years. When successful, it dishonours the victim of a brutal killing, implying that he was at least partly at fault, all for simply making a non-violent pass at someone else.

It is somewhat ironic that one of the most eloquent rebuttals of the homosexual advance defence comes from the very same case in which the High Court of Australia upheld its validity. In Green v The Queen [1997] HCA 50, then Justice Michael Kirby dissented, writing:

“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.”

At the core of this partial defence lies unbridled homophobia, an irrational fear, and stereotyping, of gay men as “predators”, lurking and waiting for any opportunity to pounce on any unsuspecting “normal” heterosexual men. And it tells these “normal” men that they are entitled to use lethal force to repel any type of unwanted, non-violent sexual advance, that it is, at least in part, justified to somehow help defend their “honour”.

It is a law that has always been unjust. It seems that Members of the NSW Parliament have at last recognised that fact. To that I say, better late than never. But never forget the victims whose murderers have escaped the full convictions, and punishments, that they deserved, solely because the victim made a non-violent sexual advance to them.

Assuming that the Crimes Amendment (Provocation) Bill is passed early next year, I am sure that the actual repeal of the homosexual advance defence would feature highly on any list of the highs and lows of 2014. Til then, it is up to us to make one final push to ensure this abhorrent piece of law is finally abolished, once and for all.

Related posts:

My 2012 submission to the Select Committee Inquiry: https://alastairlawrie.net/2012/08/10/submission-on-homosexual-advance-defence/

My 2013 Submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013: https://alastairlawrie.net/2013/11/14/submission-on-crimes-amendment-provocation-bill-2013-re-homosexual-advance-or-gay-panic-defence/

13 Highs & Lows of 2013: No 13 (Alleged) Police Brutality at Sydney Mardi Gras

Posted on December 10, 2013 by Alastair Lawrie

As I did last year, I am going to end the year by writing about the highlights – and lowlights – of the last 12 months. As always, choosing the best and worst of the year is a subjective process, and reflects my own experiences as a cis-gender gay man, who engages in LGBTI advocacy, in Sydney. But I hope that the list I have selected is reflective of some of the major issues of 2013, at least in Australia anyway. If not, please feel free to tell me why I’m wrong in the comments section below.

No 13. (Alleged) Police Brutality at Sydney Mardi Gras

Let’s begin by remembering one of the true low-points of this year – the (alleged) actions of NSW Police officers which marred Australia’s, and one of the world’s, premier LGBTI events, the Sydney Mardi Gras, in February and March.

As we approach the end of the year, almost 2 million people, from right around the world, have watched the Youtube clip of the way Police officers treated Jamie Jackson on Oxford St on the night of the Mardi Gras Parade. (http://www.youtube.com/watch?v=wxtFtVfAeeE)

Others have read about the way long-term LGBTI activist Bryn Hutchinson was (allegedly) treated by NSW Police officers, also on Oxford St after the parade had finished. Now that all charges against Mr Hutchinson, and his sister Kate, have been dismissed by the courts, he has written about his experiences in the Star Observer. (http://www.starobserver.com.au/opinion/soapbox-opinion/my-terror-of-crossing-oxford-street-at-mardi-gras/113785)

But it is important to remember that it was not just these two isolated incidents that left a sour taste in the mouths of many after what is supposed to be a celebration of pride and diversity. Nor were instances of alleged Police brutality confined to the night of the Parade and Party, but instead occurred throughout the Mardi Gras Festival.

In fact, Sydney Mardi Gras and ACON received at least 58 complaints about the way people had been treated by NSW Police over the entire Mardi Gras season. These complaints included allegations of intimidation and aggression by Police on Oxford St after the Parade had finished, reports of homophobic language and behaviour at the main Party, of intimidation, violence, excessive physical force and coercion during drug operations at both the Harbour Party and main Party, and other aggressive and intimidating behaviour in LGBTI venues along Oxford St during the Festival.

Since March, Sydney Mardi Gras, ACON, the Inner City Legal Centre (ICLC) and the NSW Gay & Lesbian Rights Lobby (GLRL) have been attempting to work through these issues in consultation with the LGBTI community. They recently released an advocacy document outlining 12 recommendations to the NSW government, although, with just 2 months left til the 2014 season gets underway, it is currently unclear how many will be accepted by Premier Barry O’Farrell, Police Minister Michael Gallacher and others. (http://glrl.org.au/images/stories/Publications/20131115_policing_at_lgbti_events_and_venues.pdf)

What is likely is that NSW Police will be much better behaved – at least for the 2014 Mardi Gras Festival, Parade and Party. They will be told by their superiors that to repeat what happened this year would reflect badly on the Government (in the media), as well as potentially jeopardising the money that is brought into the NSW economy by Mardi Gras and associated events. They will also be keenly aware that all eyes will be on them come February and March 2014, to see if their poor behaviour is repeated (on camera).

Nevertheless, the real test will come in 2015, 2016 and beyond, when the immediate controversy has died down, media interest has waned, and the temptation will emerge for some elements of the Police (because it should always be remembered that not all Police act poorly) to slip back into the (alleged) intimidation and outright aggression of 2013.

If the majority of the Mardi Gras, ACON, ICLC and GLRL recommendations are adopted (especially recommendations 1-3), then we may see some positive long-term cultural changes within NSW Police, meaning that future Mardi Gras patrons may not suffer in the same way that Jamie, Bryn and others did this year.

But, in my opinion, the two best recommendations for helping to ensure that NSW Police are ‘well-behaved’ at future Mardi Gras events are perhaps the two that are least likely to be adopted by the NSW Government.

The first, recommendation 7, calls for an end to drug detection dog operations. The evidence against the use of sniffer dogs has piled up since legislation was first passed authorising their use, without warrants, in NSW public places in 2001. The 2006 Ombudsman’s Report was damning in terms of their lack of effectiveness, as well as the risks, including health risks, of their ongoing use. In 2011, just 20% of drug dog indications resulted in Police actually finding drugs on the person searched.

The 2013 Mardi Gras experience, especially for attendees of the Harbour Party, simply confirmed the vagueness of what constitutes ‘reasonable grounds’, as well as the gross invasion of civil liberties and indeed bodily integrity involved in a subsequent drug search.

The use of drug detection dogs should end, end of story. And yet, with both the current Coalition, and previous Labor, Governments seemingly addicted to ‘law & order’, that outcome seems incredibly unlikely.

Something which is slightly more feasible is the subject of the other key recommendation (11), which calls for the establishment of a “transparent, representative civilian-led police complaints and investigatory body with the appropriate resources, capabilities and knowledge” to oversee NSW Police. Obviously, such a body would help remedy issues experienced, not just by the LGBTI community, but also by other vulnerable groups across NSW, including Aboriginal and Torres Strait Islanders, young people and people from Culturally and Linguistically Diverse (CALD) backgrounds.

It should be acknowledged that the NSW Government has taken a small step down this path, by appointing the former Commonwealth Attorney-General, Robert McClelland, to review the investigation and oversight of police critical incidents (those where police actions have resulted in the death or serious injury of a member of the community). But this represents just a small sub-set of police actions which should be subject to independent review, and it is undeniably a long, and hard, road from this narrow review to the introduction of a broad-based, independent complaints body. We’ll see what happens on this in coming months (and, I suspect, years).

There is one final comment which I feel compelled to make. In the aftermath of the incidents during this year’s Mardi Gras, some members of Sydney’s LGBTI community focused on the possible involvement of Police officers from outside the Surry Hills Local Area Command. Specifically, they argued that if we could somehow return to a (simpler) time when Surry Hills Police were sufficient to patrol the Mardi Gras, supplemented by others from around Sydney who volunteered to be on duty, then the problems of 2013 would somehow disappear.

To me, that ignores a much deeper problem. If a Police officer is going to behave in an allegedly homophobic and aggressive way on the busiest gay night of the year, on Oxford St, in front of thousands of people, then how are they going to treat an individual LGBTI person, when nobody is looking, in other parts of Sydney, or indeed elsewhere in the state?

I am not interested in just having an LGBTI-friendly Police force serving the inner-city enclaves of Surry Hills and Newtown, while simultaneously ignoring the potential for homophobia outside those supposedly safe borders. Any officer, from any part of the State, should be able to be called up for duty around Mardi Gras and behave in a responsible and respectful manner.

Above all, every single officer, in every single station across NSW, must be able to deal with, and respond appropriately to, the concerns of LGBTI people. If they can’t, they should have their badges taken off them, because they’re not fit to be a Police officer.

Denying Marriage Equality is Theft

Posted on November 28, 2013 by Alastair Lawrie

Next week, the High Court will hear the Commonwealth’s application for the ACT’s same-sex marriage laws to be overturned. Arguments will focus primarily on whether the 2004 amendments to the Commonwealth Marriage Act ‘cover the field’ in terms of legislating under sub-section51(xxi) of the Constitution, or whether the amendments have instead left the door open for State and Territory Governments to establish a new category of marriage, namely same-sex marriage.

But perhaps the Court should also consider sub-section 51(xxxi), which gives the Commonwealth Parliament power for “the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has the power to make laws.” Maybe our High Court Justices should ask whether laws which take away the right of LGBTI couples to get married are tantamount to theft.

Allow me to explain. The most direct way in which the marriage equality ban takes money from LGBTI couples is that, currently, it forces couples overseas in order for their marriage to have any legal standing at the time of the ceremony. The couple obviously incurs significantly higher costs than for a domestic wedding. Even if the ACT laws are allowed to stand, for Australian couples who wish to have a ceremony with legal standing, however briefly, the vast majority will need to hold their wedding a long distance from home.

With recent estimates of the average cost of weddings being in the vicinity of $35,000, or even $54,000, it is grossly unjust to force some couples to pay even more, merely because of their sexual orientation, gender identity or intersex status.

Compounding this, a system which forces LGBTI couples to travel, either interstate or overseas, to get married reinforces a financial threshold on which couples can tie the knot, with only the well-off able to do so. Someone’s class should never determine whether they can access a legal institution like marriage.

The next theft comes when the couple returns home – at customs, they are summarily, and completely without justification, stripped of their state of being married. Something which means so much to the couple – enough for them to travel to undertake it – is confiscated, without any compensation. Surely an argument could be mounted that this amounts to “the acquisition of property on [un]just terms”?

Something else which is stolen from LGBTI couples is the ability to celebrate their wedding with their desired guests. This happens in two ways. For those who choose to travel to get married, many of their family and friends will be unable to attend the ceremony due to cost, or the need to take extended time off work. For other couples, like my fiancé Steve and myself, who instead choose to wait until they can legally wed in Australia, the passage of time will have the same effect.

In our case, we both have elderly grandmothers who we love dearly and who we would love to have at our nuptials. That would have been possible when we first got engaged, at the start of 2010, although, sadly, my grandmother is probably now too frail to travel to our wedding, even in Australia. By the time marriage equality is eventually passed, I fear the same will be the case for Steve’s grandmother – and he will be devastated by that.

The ability to celebrate our wedding with the people who matter most to us has been ripped from our grasp by the Commonwealth Parliament. We, and other couples like us, feel it acutely. As an aside, perhaps so-called ‘family values’ campaigners should consider how they would react to government intervention on their wedding guest list – because that is what has been imposed on us.

The theft which is a consequence of the ban on marriage equality will not even stop whenever a Bill is finally passed – it will keep on stealing from us into the future. Explaining this ‘future theft’ is what eventually helped my rural, LNP-voting conservative parents understand why I feel so passionately about this issue.

Earlier this year, they had their 40^th wedding anniversary. Which is something worthy of celebration – and so they did. Because these things, anniversaries, matter. One day, Steve and I hope to do likewise. Except that, the longer the ban on our marriage lasts, the less likely we will both be alive in order to celebrate a 50^th, or even 40^th, wedding anniversary. Even after the ban is eventually lifted, it will still be lifting precious things from our pockets.

Of course, what is being stolen from us is likely too intangible to be considered by the High Court under sub-section51(xxxi). But this theft is exactly what should be reflected upon by any Parliamentarian who is considering voting against the right of LGBTI couples to get married.

What makes the current ban ever harder to stomach is that, everyone, from Tony Abbott down, knows that marriage equality is inevitable. Which makes the ongoing refusal of our MPs to pass it seem extremely petty. Especially when what they are stealing from us, both now and in the future, is something grand.

The ABCs of Health & Physical Education Must Include LGBTI

Posted on November 22, 2013 by Alastair Lawrie

Next week, a decision will be made that will have a profound and long-lasting influence on the health and wellbeing of an entire generation of young lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. And it has nothing (or at most, very little) to do with marriage equality.

On Friday, 29 November, the COAG Standing Council on School Education and Early Childhood, which includes Commonwealth, state and territory Education Ministers, will decide whether to approve the national Health and Physical Education (HPE) curriculum. The HPE curriculum, developed by the Australian Curriculum, Assessment and Reporting Authority (ACARA), has largely been ignored, struggling to compete for attention against photogenic images of same-sex couples in wedding attire, and empowered adults advocating for the right to marry the person they love.

While I obviously support that campaign (indeed, I am engaged to be married myself), the national HPE curriculum will arguably have a far greater impact on young LGBTI people, right across the country, than any other possible reform.

We already know that young LGBTI people experience significantly higher rates of mental health issues, and, tragically, suicidality, than other groups. Figures from the Don’t Ask, Don’t Tell report reveal that young same-sex attracted people are roughly six times more likely to attempt suicide (20-42% compared to 7-13% of heterosexual young people). While there is less research, similar, if anything even worse, statistics affect young transgender people.

And we already know what causes poorer mental health outcomes for younger LGBTI people – the homophobia, bi-phobia, trans-phobia and anti-intersex discrimination that still occurs all too frequently. The 2010 Writing Themselves In 3 report found that 61% of same-sex attracted and gender questioning young people had experienced verbal abuse because of homophobia, 18% had suffered physical abuse, and 26% reported other forms of homophobia.

Disturbingly, “the most common place of abuse remained school with 80% of those who were abused naming school” (WTI3 pIX). Our young LGBTI people are being abused in one of the places that they should feel safest. And the trend is worsening, with that figure markedly up since 2004 (when 74% reported homophobic abuse at school) and 1998 (69%).

Just as worryingly, young LGBTI are not receiving an inclusive education in terms of content either. While just over a third of young people reported receiving useful information about homophobia and discrimination from school (WTI3, p80), less than one fifth were able to access information about gay or lesbian relationships (p81).

Our schools are also comprehensively failing to provide adequate, and appropriate, sexual health education to young LGBTI people. Writing Themselves In 3 found that less than one in five students were taught relevant information about gay or lesbian safe sex (by comparison, approximately 70% reported receiving information about heterosexual safe sex: p82). Young people themselves are aware of this gross inadequacy – 84% of LGBTI respondents found their Sexuality Education to be either not useful at all (44%) or at best only partly useful (40%) (p84).

I have painted this confronting picture because the development of a national Health and Physical Education curriculum was an ideal chance to rectify some of these deficiencies. An inclusive HPE curriculum, which specifically included LGBTI students and content relevant to their needs, could have gone some way to reducing the disparities in health outcomes experienced by young LGBTI people. But it seems likely the document that will be agreed at the end of next week will fall spectacularly short of this goal.

Two drafts of the HPE curriculum have been released for publication consultation: the first, an 82-page draft in December 2012, the second, a pared-down 50 page revised draft in July 2013. In neither draft are the terms lesbian, gay, homosexual or bisexual even used, let alone defined. The words transgender and intersex do make a solitary appearance in the revised draft: in the glossary, erroneously included together under the heading gender-diverse.

Not only is the national HPE curriculum not going to overcome the silence about LGBTI students and content which exists in many schools across Australia – it is more likely to perpetuate and further entrench it.

To be fair, the curriculum does include a single aspirational – some might say, less kindly, token – paragraph on the subject of ‘same sex attracted and gender diverse students’ (SSAGD) on page 18 of the July 2013 revised draft. But even this includes vague, and seemingly unenforceable, commitments.

It says the curriculum “is designed to allow schools flexibility to meet the needs of these [SSAGD] students, particularly in the health context of relationships and sexuality” (emphasis added). This leaves open the possibility that some schools, including but not limited to religious schools, will exercise that same flexibility to exclude LGBTI content.

The next sentence reads “[a]ll school communities have a responsibility when implementing the HPE curriculum to ensure teaching is inclusive and relevant to the lived experience of all students” (emphasis added). That could be interpreted, optimistically, to mean all schools must include SSAGD content – or it could be interpreted, by less progressive school bodies (or indeed state and territory governments), to mean HPE education must be inclusive only where they are aware of the presence of LGBTI students.

That might seem, on the face of it, to be an overly-negative reading – except that a statement that “students facing these issues [SSAGD] exist in all schools”, which appeared in the first draft of the curriculum, was axed from the revised draft. It is hard to ignore the possibility that religious and independent schools have ensured the removal of such a clause, thereby allowing them to continue to ignore LGBTI students and content unless those students identify themselves.

These schools know that many young people will not disclose their sexual orientation, gender identity or intersex status at school (often in – quite legitimate – fear of punishment from that same school), meaning that heterosexual and cisgender-only health education can continue on much as before. Even where LGBTI students do ‘come out’, the onus should never be put on them to do so in order to receive an inclusive education: all students have the fundamental right to be taught LGBTI relevant content, whether they have disclosed their status or not.

That right exists no matter which state or territory they live in, and irrespective of whether they attend a public, religious or other private school. The right to be taught LGBTI-inclusive content also supersedes whatever views the school, or its employees, may hold, based on religion or otherwise. To me, that is the definition of putting children first, something which conservatives and family values campaigners consistently tell us to do.

Any optimistic view of the curriculum, based on the ‘aspirational paragraph’ referred to earlier, is further undermined by the lack of specific content in the individual year band descriptions, which is the practical guide to what students are expected to learn (on pages 25-42). There are no sections that guarantee detailed LGBTI-relevant content will be taught. In fact, a single reference to ‘homophobia’, which was included in the original December 2012 draft, was excised from the revised draft released in July 2013.

Even worse, there does not appear to be any section which mandates that students be taught comprehensive sexual health information (and that absence even includes heterosexual sexual health). There are no references to safe(r) sex education, to condoms, or to sexually transmissible infections (STIs). Above all, there is not a single reference in the entire draft HPE curriculum to HIV.

Imagine that for a second. More than 30 years into the HIV epidemic in Australia, and in the same year that the Annual Surveillance Reports showed a 10% increase in HIV notifications (24% in NSW), our national Health and Physical Education curriculum does not even mention HIV (nor does it include other Blood Borne Viruses (BBVs) like hepatitis B or C, which themselves each affect 1% of the entire Australian population).

The idea that, just two days before World AIDS Day, Commonwealth, state and territory Education Ministers could sit around a table and agree to an HPE curriculum that excludes HIV and other BBVs is simply astounding (and a lot of other words which I am too polite to write here).

Taken together, these omissions – LGBTI students and content, comprehensive sexual health education, and HIV and other BBVs – from the national Health and Physical Education curriculum, mean that the document that has been drafted (or the public versions of it at least) is an abject failure.

And it is a collective failure, too. The original December 2012 draft, and the July 2013 revised draft, were both released under the previous federal Labor Government. Of the state and territory Education Ministers present next Friday, five will be from the Coalition, two from Labor and even one from the Greens, and they will each bear some of the responsibility.

But above all, this is a test for the new Commonwealth Education Minister, the Hon Christopher Pyne MP. He has come to Government expressing concerns about the ACARA process for developing the national curriculum, and the outcomes it has produced. Here is his opportunity to show that he is genuine, and to help ensure that the national Health and Physical Education Curriculum is genuinely-inclusive.

If he does not, if the document that is approved on 29 November excludes LGBTI students and content, comprehensive sexual health education, and HIV and other BBVs, then Minister Pyne will earn a large red “F” on his first term report card. He can – and must – do better.

Update (3 December): The Standing Council on School Education and Early Childhood met last Friday, but did NOT endorse the national Health & Physical Education curriculum. Instead, they have noted its development, while also noting that the Commonwealth is reviewing ACARA and the curriculum development process more broadly. Basically, the curriculum is on hold until that review is finished, meaning it could be adopted at some point in 2014, amended and then adopted in 2014, or could be sent back for complete redraft, either by ACARA or someone else. I will obviously post further updates as I become aware of important developments.

LGBTI Voices Absent from the Chamber

Posted on November 16, 2013 by Alastair Lawrie

This week marked the first sittings of the 44^th Parliament of the Commonwealth of Australia. It also marked the 44^th sittings in which there have been no openly lesbian, gay, bisexual, transgender or intersex (LGBTI) members of the House of Representatives. The achievements of prominent Senators over the past 15 years – most notably former Greens Leader, Bob Brown, and current Leader of the ALP Opposition in the Senate, Penny Wong – mean many people, including some within the LGBTI community, are unaware of this fact.

However, the truth remains that, 38 years after the first Australian state decriminalised homosexuality (South Australia in 1975), and 16 since the last (Tasmania in 1997), no openly LGBTI MP has ever occupied a seat in our federal lower house. This ongoing absence is both an embarrassment, and means Australia is a statistical outlier amongst similar countries.

Above: now retired, Senator Bob Brown, former leader of the Greens.

The United Kingdom has a long, and mostly proud, history of ‘out’ House of Commons MPs. Leaving aside the ‘outing’ of Labour’s Maureen Colquhoun in 1976, fellow Labour MP Chris Smith voluntarily came out just a year into his first term, way back in 1984. The first Tory to come out in office – Matthew Parris – did so the same year. In fact, with roughly 20 current openly LGBTI House of Commons Members (there’s so many it’s getting hard to keep up), even adjusting for size Westminster features the equivalent of 4 or 5 openly LGBTI Australian House of Reps MPs.

New Zealand is similarly a long way ahead of Australia. Like the UK, our Trans-Tasman cousins had a female MP who was ‘outed’ whilst in office (Marilyn Waring from the Nationals, in 1976), with the first MP to publicly come out being Labour’s Chris Carter, shortly after his election twenty years ago. New Zealand even had the world’s first openly transsexual Member of Parliament, Georgina Beyer, before the turn of the last millennium. And, despite having a national list as part of their electoral system, these (and several other openly LGBTI) MPs represented single-member geographic electorates.

Meanwhile, the Canadian history of openly LGBTI lower house MPs has already reached a quarter century, following Svend Robinson’s pubic declaration in 1988. Even the United States Congress has featured openly LGBTI members in their House of Representatives; after Democrat Gerry Studds was outed in 1983, fellow Democrat Barney Frank came out voluntarily in 1987. Heck, the first Republican Members of Congress to either be outed (Steve Gunderson in 1994) or come out voluntarily (Jim Koelbe in 1996) happened almost two decades ago.

So, what has gone wrong in the Australian political system such that, despite having six openly LGBTI Senators or Senators-elect (in addition to Brown and Wong, there’s Democrat Brian Greig, Labor’s Louise Pratt, Liberal Dean Smith and newly-elected Green Janet Rice), not one openly lesbian, gay, bisexual, transgender of intersex MP has ever won a seat in the House of Reps? How is it that Liberal Kevin Ekendahl, contesting the seat of Melbourne Ports in September 2013, appears to be the candidate to come closest – and even he fell more than 3.5% short?

The first possible explanation is that the party machines, in particular of the Coalition and the ALP, have actively operated to prevent LGBTI politicians from rising to the top. Given Australia’s incredibly strong two-party system (much stronger than the UK, New Zealand or Canada), it’s plausible that the increasingly powerful religious/conservative wing of the Liberal and National parties, and the virulently homophobic SDA, led by Joe De Bruyn inside the ALP, have each stopped the emergence of LGBTI politicians in Australia.

Except they haven’t been completely successful – 3 of the 6 openly LGBTI Senators have come from major parties (although none yet from the Nationals). And it ignores the Senate’s position as a quasi-‘insiders club’, where the majority of people elected have themselves emerged from, or at least have the support of, the party hierarchy. Which means that, even if discrimination within the party machine offers some of the explanation, there must be more to it.

A second possible explanation is that our political parties, operating in a system of single-member electorates with compulsory voting and compulsory preferential voting, have taken conscious decisions to find candidates who do not risk alienating any specific part of the electorate, and therefore have ruled out pre-selecting openly LGBTI candidates; or have nominated them to the multi-member Senate instead. Especially in marginal suburban or regional electorates, even a small backlash from voters motivated by homophobia (or who could be made to feel so through an exploitative campaign by opponents) could arguably be the difference between success or footnote.

At least historically, that could have been a somewhat rational, albeit craven, view from inside our major parties. But over time, with the growing acceptance of LGBTI people throughout Australian society, that perspective should have become irrelevant. And, once again, it cannot offer a full explanation, because, even accounting for different electoral systems in other countries, LGBTI candidates have had to counter, and survive, explicitly homophobic campaigns against them elsewhere. That could, and should, have happened here too.

A third possible explanation is that LGBTI people themselves have ‘self-selected’ out of becoming members of the House of Reps. There are two main ways in which this could have happened. First, if LGBTI advocates and achievers, becoming disgruntled by a (real or perceived) lack of progress on equality inside the major parties, chose instead to focus their energies on minor parties like the Democrats or, later, Greens, then they have largely ruled themselves out of being viable candidates for the House of Reps. The fact that 3 of the 6 openly LGBTI Senators to date have come from these smaller parties lends some weight to this hypothesis.

The other way in which an LGBTI person might rule themselves out is that, having progressed within the major parties and been in a position to challenge for pre-selection, they instead chose not to expose themselves to public scrutiny of their sexual orientation, gender identity or intersex status, or the possibility of outright homophobia. It’s been reported before that this is one reason why Justice Michael Kirby chose the law instead of politics (as an aside, imagine the achievements of Kirby as an activist Attorney-General?). It’s possible this fear continues to be a factor today. And, given the sexism and misogyny that is still directed at our female politicians, who’s to say they’re being irrational?

Above: Senator the Hon Penny Wong, currently Leader of the ALP Opposition in the Senate, with her family. Unfortunately, as a Senator she can no longer be promoted unless or until she moves to the House of Representatives.

Last month, Bill Shorten made addressing this issue, through the introduction of LGBTI affirmative action rules for ALP candidates, one of his policy planks in the contest for Labor Leader. The proposal, oft described as a quota, drew condemnation from a diverse range of people, including Andrew Bolt and Crikey’s Guy Rundle. Disappointingly, the debate over his solution (which, for the record, I think is worthy of consideration) ignored the fact that Shorten was talking about a real problem – that LGBTI people continue to be excluded from Australia’s House of Government, long after they have stormed the barricades in comparable nations.

It’s important this problem is addressed, not because a Parliament must automatically reflect the demographic make-up of the people it represents, but because, at a time when the rights of LGBTI people continue to be a matter of major public debate (see: marriage equality), we should at least be at the table; or on a green chair or two, anyway. But above all, removing the barriers which have, in the past, operated to prevent openly LGBTI people being elected to the House of Representatives, means clearing the way to ensure that the best possible candidates are put before the Australian people, irrespective of their sexual orientation, gender identity or intersex status. That’s something we all deserve.

**********

UPDATE 7 JANUARY 2016:

On Saturday 5 December 2015, Trent Zimmerman became the first out gay man to be elected to the House of Representatives, in the North Sydney by-election created by the resignation of former Treasurer Joe Hockey.

A Liberal, Mr Zimmerman will be the first out member of the LGBTI community to serve in the lower house of our federal parliament when he formally takes his seat on Tuesday 2 February 2016.

While his historic victory was a long time coming, there is some hope that the 2016 Federal Election may even see other out LGBTI representatives elected to join him. The best chance at this stage appears to be gay army major Pat O’Neill, standing for Labor in the marginal seat of Brisbane.

Other candidates with admittedly longer odds include Carl Katter (ALP) and Jason Ball (Greens) in Higgins which is currently held by Liberal Kelly O’Dwyer (they both had much stronger chances before Malcolm Turnbull replaced the bigoted Tony Abbott as Prime Minister), and Labor’s Sophie Ismail who is running against Green Adam Bandt in Melbourne.

Of course, even if Mr O’Neill succeeds, two MPs out of a chamber of 150 do not a landslide make. LGBTI voices will still be under-represented when the issue of marriage equality is debated (yet again) next term, as well as other issues of importance to the LGBTI community.

And Australia remains well behind in terms of LGBTI representation, both in comparison to similar countries elsewhere, and when we remember the fact that there has still not been an out transgender or intersex member in either house. Despite Mr Zimmerman’s victory, there is still a very long way to go.

Liberal Trent Zimmerman became the first out LGBTI person elected to the House of Representatives on 5 December 2015 [image source: The Weekly Times].

Submission on Crimes Amendment (Provocation) Bill 2013 re Homosexual Advance (or ‘Gay Panic’) Defence

Posted on November 14, 2013 by Alastair Lawrie

I am writing to make a submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013, as released by the Attorney-General, the Hon Greg Smith MP, on 17 October 2013.

First, I would like to commend the Attorney-General, and the O’Farrell Government more broadly, for developing a Bill which, if passed, would finally abolish the homosexual advance (or ‘gay panic’) defence.

The homosexual advance defence has long been a stain on the fabric of our criminal justice system, resulting in the ‘downgrading’ of convictions from murder to manslaughter where it is not justified, and in doing so implying that the victim was in some way at fault, even to a small extent that they ‘deserved’ what happened to them.

Sadly, this has not been an abstract injustice, restricted to the statute books, but a defence that has been used, successfully, in multiple criminal trials over the past 20 years. This means that there is every chance that it could be used again, unless and until this Bill is passed.

Which brings me to my first recommendation: The Crimes Amendment (Provocation) Bill 2013 should be passed as soon as possible. This will help ensure that no future victim is disrespected by the fact their murderer escapes with a lesser conviction, and probable reduced sentence, simply because that murderer had a homophobic reaction to the victim’s non-violent sexual advance.

If, for whatever reason, the NSW Government is unable to progress this legislation with the urgency that it requires then, as a fall-back, I suggest that it consider amending clause 2 of the Bill to ensure that the Act has retrospective application.

Specifically, if the legislation is not passed by the end of the first sittings in 2014 (on Thursday March 27^th), consideration should be given to back-dating the legislation to take effect from the date the Government formally confirmed its intention to introduce these reforms through the release of this Exposure Draft (ie on 17 October 2013).

I acknowledge that this would be a drastic step for any Parliament to take. No-one should casually amend the criminal law in such a way, especially where the offence involved carries significant penalties, without a compelling justification.

But I sincerely believe that a case for doing so could be made in these circumstances: that the injustice of our legal system effectively saying that a killing is less offensive, less contrary to community standards, less worthy of punishment than other killings, simply because the non-violent sexual advance involved was from one man to another, is so great that the question of retrospective application at least merits further debate.

Despite this, my overall preference would be for the Bill to be passed without including such provisions, and that this happen in the shortest possible timeframe, making retrospectivity less of a pressing concern.

My second recommendation deals with another potential issue which would remain unresolved even if the Exposure Draft Bill was passed, and that is: The new Crimes Act section 23, introduced by the Crimes Amendment (Provocation) Bill 2013, should specify that the ordinary person is not homophobic.

The Exposure Draft Bill includes multiple safeguards to help ensure that a non-violent sexual advance, whether same-sex or heterosexual, cannot be used as the basis of the partial defence of extreme provocation.

Specifically, proposed new sub-section 23(2)(b) requires that the conduct of the deceased was a “serious indictable offence”, which would clearly not include a non-violent sexual advance. Even more categorically, sub-section 23(3)(a) ensures that the partial defence cannot be raised in circumstances where “the conduct was only a non-violent sexual advance to the accused.” I strongly support the inclusion of both provisions.

However, in the event of a contested murder prosecution, there can be doubt about the boundary between what constitutes a non-violent sexual advance and a violent sexual advance. This doubt can, and often will, be exploited by a defendant, especially because the victim is not available to provide their version of events. It would be a potentially perverse, although perhaps unavoidable, consequence of the Government’s reforms that it would introduce an even greater incentive for a defendant to establish that the victim’s sexual advance was itself violent.

If the defendant is successful in establishing that the victim’s sexual advance was indeed violent (or that there is at least some evidence to support this: see proposed sub-section 23(7)), then proposed sub-section 23(2)(d) becomes relevant, and it maintains the existing ‘ordinary person’ test to assess whether the loss of self-control is accepted as the basis of this partial defence.

It is possible that, given hardening community attitudes against rape, any violent sexual advance, irrespective of the sexes or genders of the people involved, would now satisfy the ‘ordinary person’ test in terms of partially excusing that loss of self-control. If that is the case, then there would be no unjustified discrimination on the basis of sexual orientation, and the law would not require further amendment.

However, it is also possible that a male defendant could claim a violent sexual advance from another man is more egregious or offensive, and therefore more worthy of the application of the partial defence, than a violent sexual advance in other circumstances (eg a violent sexual advance from a woman to a man).

Based on the existing case-law (including Green v The Queen 1997), there is a possibility that this argument would be accepted – the consequence of which being that, once again, the killing of someone who makes a same-sex sexual advance would be treated as less serious than the killing of someone who makes a heterosexual sexual advance in the same circumstances (the only difference being that both would now be violent).

Given the significant step forward overall which would be achieved by the passage of this Bill, I do not wish to see it undermined by the ongoing possibility of such homophobic discrimination, which is why I propose that new section 23 include a provision that, at least for the purposes of this partial defence, the ordinary person is not homophobic, bi-phobic, trans-phobic or prejudiced towards intersex people (specifically, the ordinary person does not discriminate on the basis of sexual orientation, gender identity or intersex status).

As with the suggestion about retrospectivity, discussed earlier, this would be an unusual step for a Parliament to take, and leaves open for consideration a range of other factors which may or may not need to be prescribed (for example, that the ordinary person is not racist or sexist). I make no comment here about those or other factors (other than noting that, whatever list may be deemed necessary include, it should be inclusive rather than exhaustive).

Nevertheless, given we are fully aware that the law has allowed homophobic discrimination within the partial defence of provocation in the past, I believe we should be actively considering how to prevent further such discrimination in the future within the new partial defence of extreme provocation. Even if the section itself is not amended, alternatives could include either or both the explanatory memorandum and second reading speech noting that it is not the Parliament’s intention that the new partial defence should operate in a homophobic manner.

Leaving aside these two recommendations, it is my firm belief that the passage of the Crimes Amendment (Provocation) Bill 2013 would be a significant, and long-overdue, achievement. This is something that the lesbian, gay, bisexual, transgender and intersex (LGBTI) community has been campaigning on for many years: it is my sincere hope that the homosexual advance (or gay panic’’) defence will finally be consigned to the dustbin of history in the very near future.

Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Posted on September 30, 2013 by Alastair Lawrie

The following is my submission, lodged today, in response to a discussion paper and Bill released by the Member for Sydney, Mr Alex Greenwich. The Paper and Bill seek to remove exceptions which allow private educational authorities, including religious schools, the right to discriminate against lesbian, gay and transgender students. Unfortunately, I think that to achieve that goal, more amendments to the NSW Anti-Discrimination Act 1977 may need to be made. In any event, I believe that there are a range of other amendments which should also be made at the same time, including the removal of section 56 generally. Anyway, here it is:

Mr Alex Greenwich

Member for Sydney

Sydney@parliament.nsw.gov.au

Monday 30 September 2013

Dear Mr Greenwich

Submission on Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Thank you for the opportunity to provide a submission in response to your discussion paper on anti-discrimination law reform, released in August 2013, and in particular in relation to your Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013 (the Bill), which you introduced into NSW Parliament on 19 September 2013.

First of all, let me say that I welcome your strong commitment to removing the discrimination that can be experienced by lesbian, gay and transgender students in private educational institutions, including private schools. As has been demonstrated by the Writing Themselves In reports, and countless other research projects over the years, schools can be one of the major sources of homophobia and trans-phobia in the lives of young people.

It is vital that any ‘exceptions’ in the NSW Anti-Discrimination Act 1977 which may authorise schools to discriminate against lesbian, gay and transgender students are removed, and this must apply to all types of private schools, including religious schools. From what I have read, both in the Discussion Paper and associated media, as well as in your Second Reading Speech, I believe this is what your Bill is attempting to achieve.

However, I do have some concerns about the Anti-Discrimination (Private Educational Authorities) Bill 2013, in particular:

It is unclear whether the Bill, as drafted, will accomplish this aim
There are a range of other amendments which also need to be made to the Anti-Discrimination Act 1997 and
If the Bill is aimed at removing the right to discriminate from religious schools, thereby provoking an expected negative response from religious organisations, then I believe that the right of religious organisations to discriminate more broadly under s56 should be removed at the same time.

Turning first to the question of whether the Bill, if passed, would actually achieve the aim of removing the right to discriminate from all schools, including religious schools, I note that the Bill simply removes those provisions of the Anti-Discrimination Act 1997 which provide a specific right to discriminate (namely, sections 31A(3)(a), 38K(3), 46A(3), 49L(3)(a), 49ZO(3) and 49ZYL(3)(b)).

However, the Bill does not amend or seek to repeal the catch-all section which provides exceptions to religious organisations to discriminate – and that is found in section 56(d) which states: “Nothing in this Act affects: (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.”

I am concerned that, by leaving this section unamended, the effect of your Bill would be to remove the right to discriminate from private educational authorities that are not religious, but that religious schools would retain the right to discriminate against lesbian, gay and transgender students on the basis of their ‘religious principles or beliefs’. The practical effect of the Bill would therefore have a positive outcome for a much, much smaller cohort of students than what is intended.

This reading of the Anti-Discrimination Act 1977, and in particular s56(d), appears to be supported by the main case in this area in recent years: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293. This case involved a service operated by the Wesley Mission, which sought to utilise the ‘protections’ offered in s56(d) to discriminate against gay male foster carers. The Wesley Mission was ultimately successful in its appeal.

While foster care is obviously not exactly the same as providing education in religious schools, I believe that it is potentially analogous in terms of indicating how broad the religious exceptions under s56(d) are in practice, and in particular in suggesting that they would operate to shield religious schools that discriminate against lesbian, gay and transgender students from the scope of the Anti-Discrimination Act 1977.

This also appears to be the opinion of the current Attorney-General of NSW, the Hon Greg Smith SC MP. In a speech titled Religious Vilification, Anti-Discrimination Law and Religious Freedom, which he gave on 24 August 2011, the Attorney-General discussed the operation of s56:

“116. Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to:

The training, education, ordination or appointment of religious leaders [s56(a)&(b)];
The appointment of any other person [s56(c)];
Any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of thast religion [s56(d)].

117. Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:

a. While section 56(c) of the ADA exempts the appointment of persons ‘in any capacity’ by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;

b. Some other jurisdictions have provisions equivalent to s56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice [NT], or don’t extend the exemption to discrimination in work or education [Qld], or limit the grounds of discrimination that are exempt.” [emphasis added]

The implication from this speech, and in particular from para 117(b) above, is that the Attorney-General believes that the protections offered by s56(d) would be available to a school or educational facility run by a religious organisation. This also appears to be the interpretation of s 56(d) by other organisations and advocacy groups which work in this area, including the Inner-City Legal Centre and Public Interest Advocacy Centre.

If that is the case – that either your Bill does not operate to limit the right of religious schools to discriminate against lesbian, gay and transgender students, or that there may be some ongoing uncertainty in this area – then might I suggest you seek additional legal advice on the scope of s56(d), and whether further amendments to your Bill might be necessary to guarantee the rights of lesbian, gay and transgender students in religious schools not to be discriminated against. Obviously, if the Bill is to be debated and ultimately voted upon in late 2013 or early 2014, it would be useful to have clarity about the exact protections to be offered by the Bill beforehand.

Moving on to my second concern about the Bill, which applies irrespective of whether students at religious schools are covered or not, specifically that there are a range of other serious problems with the NSW Anti-Discrimination Act 1977, and it is my belief that these issues should be considered at the same time by the Parliament.

For example, as well as protecting lesbian, gay and transgender students, anti-discrimination protections should also be offered to teachers and other employees at the same schools, irrespective of their sexual orientation or gender identity.

In fact, I believe that religious exceptions should be limited to only cover the appointment of ministers of religion, and the conduct of religious ceremonies. In short, religious organisations should no longer be sanctioned by the State to discriminate in employment and service delivery in places like hospitals or social services – and a reform to the existing law is a perfect opportunity to make such changes.

There are also a range of problems with the current scope of, and definitions included in, the NSW Anti-Discrimination Act 1977, including the fact that it protects homosexuals (in s49ZF) rather than people with different sexual orientations (with the effect that, while lesbians and gay men are covered, bisexuals are not).

The NSW Act also includes what I understand to be an out-dated definition of transgender (in s38A), rather than the preferred definition of gender identity as passed in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. Indeed, the NSW Act does not even cover intersex status at all, unlike its Commonwealth counterpart. I hope that you, and other MPs involved in this area of public policy, are consulting with groups representing the transgender and intersex communities about whether, and how, to deal with these issues.

There are also other problems with the current Act, including what I find to be an objectionable difference in financial penalties for individual offenders found guilty of vilification; the maximum financial penalty for racial or HIV/AIDS vilification (set at 50 Penalty Units) is five times higher than that for homosexual or transgender vilification (set at 10 Penalty Units). There can be no justification for this discrepancy, which effectively creates a hierarchy of offensiveness, with some types of vilification considered more serious than others.

The above problems with the NSW Anti-Discrimination Act 1977 are simply those which I have identified from my own reading and research. I am sure that there are other issues which also need to be addressed. This to me suggests that there is sufficient impetus for a more comprehensive re-write of the Act. While the subject of protecting lesbian, gay and transgender students is an incredibly important one, I believe that the range of problems identified above should all be dealt with at the same time.

Which brings me to my third concern with the draft Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013, and that is a concern around tactics or strategy.

By attempting to limit the right of religious organisations to discriminate against lesbian, gay and transgender students in their schools, you are taking on something which many churches take to be an inalienable ‘right’ – the ability to indoctrinate young people with their religious teachings against homosexuality or transgender identity.

As a result, I would expect a significant backlash from those same religious organisations against your Bill. The size or scale of that backlash might only be slightly less than that which could be expected from an attempt to narrow the broader exceptions contained in section 56 (by limiting its coverage to the appointment of ministers and conduct of religious ceremonies).

In that case, it is my personal view that, as well as removing the specific provisions concerning private educational authorities (as featured in your Bill), any attempt to reform the NSW Anti-Discrimination Act 1977 should also contain provisions which significantly reduce the scope of s56. If people such as yourself are going to take on the right of religious organisations to discriminate, then why not do so more comprehensively, rather than in what could be described a piecemeal (or at the very least, narrowly-targeted) fashion?

Which is not to say that moves to protect lesbian, gay and transgender students from discrimination are not welcome – they obviously are. And I also wish to restate my support for the overall intention of the Bill; protecting young people who are lesbian, gay and transgender from homophobia and trans-phobia is an incredibly important objective.

However, any attempt to do so must ensure that the Bill captures all private schools, including religious schools. And, even if that drafting issue is resolved, it remains my personal view that reform to the NSW Anti-Discrimination Act 1977 should go much further, and address broader issues including but not limited to restricting the scope of section 56.

Thank you for considering this submission.

Yours sincerely,

Alastair Lawrie

Letter to Christopher Pyne re LGBTI Exclusion from National Health & Physical Education Curriculum

Posted on September 29, 2013 by Alastair Lawrie

With the election of the Abbott Liberal/National Government on September 7 2013, Christopher Pyne has been appointed the new Commonwealth Minister for Education.

I have written the below letter to Minister Pyne about the exclusion of LGBTI students and issues (as well as sexual health and HIV) from the draft national Health & Physical Education curriculum. It is my third letter on this subject to the third Commonwealth Education Minister over the past 6 months (with previous letters to Minister Peter Garrett and Minister Bill Shorten).

Given there is little evidence these problems have been addressed by ACARA so far, here’s hoping for third time lucky.

The Hon Christopher Pyne MP

Minister for Education

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 29 September 2013

Dear Minister

LGBTI INCLUSION IN NATIONAL HEALTH AND PHYSICAL EDUCATION CURRICULUM

Congratulations on your recent appointment as the Commonwealth Minister for Education. As you are aware, in this role you are now the Minister responsible for overseeing the development of the national Health and Physical Education (HPE) curriculum.

A draft national HPE curriculum was released by the Australian Curriculum, Assessment and Reporting Authority (ACARA) in December 2012. Public consultation on this document closed in April 2013. A redrafted HPE curriculum was released for limited public consultation in July, although submissions on that document have now also closed. This means that final drafting is currently taking place by ACARA, leading to potential agreement between the Commonwealth and the States and Territories in the final three months of 2013.

Unfortunately, the draft HPE curriculum as released by ACARA (and even the redraft released in July) does not guarantee an inclusive and relevant education for all Australian students, because it neglects to address the needs of lesbian, gay, bisexual, transgender and intersex (LGBTI) students.

For example, throughout the entire 80-plus page original document the words lesbian, gay, bisexual, transgender or intersex did not appear even once. The redraft still did not include the words lesbian, gay or bisexual, and, while it did include the terms transgender and intersex (once each), it erroneously included both under the definition gender diverse (intersex is a biological characteristic and not a gender identity). It is impossible for a HPE curriculum to deal with the health needs of these students without being able to name them.

Unfortunately, an introductory paragraph from the original document which at least acknowledged that ‘same-sex attracted and gender diverse students’ (which in any event does not include intersex) exist in all schools across Australia has been amended such that this statement has been omitted. That same paragraph states that the curriculum is designed to allow schools ‘flexibility’ to meet the needs of same-sex attracted and gender diverse students, rather than mandating that all schools must provide an inclusive education. This falls short of the basic requirement that every student, in every classroom, has the right to a comprehensive health education, irrespective of their sexual orientation, gender identity or intersex status.

There are two other significant problems with the draft HPE curriculum as released. While it now at least refers to both reproductive and sexual health, it fails to provide any detail of how this topic is intended to be taught, and omits any mention of safer sex and/or detailed instruction on condom usage and other vital sexual health messages. In short, it does not include sufficient detail for the health needs of the next generation.

The second additional problem is that the entire document (both original and redraft) does not use the term HIV, or AIDS, once. While new treatments have significantly improved the health outcomes of people living with HIV, an HIV diagnosis remains a serious thing. I think it is irresponsible not to specifically mention this virus, together with the ways that it can be prevented, in a HPE curriculum. The 2012 NSW notifications data released in July 2013, which showed a 24% increase in HIV diagnoses, reinforces the need for HIV education to be included in the curriculum. Please find attached a copy of my submission to the original ACARA public consultation process, which outlines my concerns in these, and other, areas in greater detail.

Most importantly, please find attached a copy of a Change.org petition which I initiated on this topic addressed to one of your predecessors as Commonwealth Minister for Education, the Hon Peter Garrett MP, and his state and territory counterparts. Given these issues were not addressed in the redraft, the burden of rectifying these glaring omissions from the HPE curriculum now falls upon you as the new Commonwealth Minister for Education, as well as your state and territory colleagues.

This petition – calling for the HPE curriculum to be LGBTI inclusive, include sexual health and include HIV – was incredibly well-received, and secured more the 6,000 signatures in just over 3 weeks. This shows the depth of the community’s concerns that LGBTI students are included in the school curriculum, and ensuring that the content is relevant to them.

I would strongly encourage you to also read the reasons which people provided explaining why they signed this petition. They include descriptions of harm that people experienced because they had not received an inclusive education themselves when they were at school. Future students should not experience the same silence and stigma that these people suffered.

The reasons which people provided for signing the petition also demonstrate that this is an issue which matters to people from right across the community – young and old, LGBTI and their family and friends, and general members of the community who understand that all students have a right to be included.

Thank you for taking the time to read this letter, my submission to ACARA and the Change.org petition and comments which are attached. Thank you for considering this issue.

Yours sincerely,

Alastair Lawrie

Liberal-National Policies on LGBTI Issues for Federal Election 2013

Posted on September 5, 2013 by Alastair Lawrie

I was tempted to leave the content of this article completely blank, because that would be a reasonably accurate reflection of the LGBTI policies of the Liberal-National Parties for the election that is now only two days away. That is because, outside of two not very encouraging exceptions, the Coalition doesn’t appear to have any LGBTI policies for this year’s poll.

The Real Solutions booklet, which Tony Abbott and his team have been clutching tight for most of this year, makes no mention of LGBTI Australians. And, as far as I can tell, none of the policies which have been put up on the Liberal campaign website do so either (although I am happy to be corrected).

The two exceptions that I mention include Abbott’s signature Paid Parental Leave scheme (covered in my blog post earlier this week, a commitment which does not include references to same-sex couples in the formal policy document, but which Abbott, Hockey and O’Dwyer have subsequently been forced to confirm will include LGBTI parents).

And the second exception is marriage equality, which does not actually involve a policy commitment at all, only that the decision will be left to a post-election party-room to decide whether to have a conscience vote in the next term, rather than having a formal position against (although the Opposition Leader has made his own views – which remain strongly opposed to marriage equality – very clear).

This paucity of policies was confirmed through the 2013 LGBTI Federal Election Survey, which was recently conducted by the NSW Gay & Lesbian Rights Lobby, Victorian Gay & Lesbian Rights Lobby, Transgender Victoria and Organisation Intersex International Australia. This was a question and answer document, with 43 different questions spread over 12 distinct topics.

Unfortunately, while the ALP and Greens provided individual answers to all 43 questions, the Liberal-National Coalition did not provide individual answers, instead they provided a cover letter, and two-and-a-bit page attachment, which provided broad brushstrokes but very few details of what they will (and won’t) do.

The LGBTI groups I mentioned then analysed this response according to four different categories: Yes/Good Response, Qualified/Partial Response, No/Bad Response and Response does not answer the question. (For a copy of the survey documents, including the Liberal-National letter and the assessment made by the four groups, go to www.lgbti2013.org.au)

The result: for a full 29 of the 43 questions asked (ie two thirds of the total), the Liberal-National Parties’ response was deemed to not answer the question at all. In fact, in only 4 out of 43 responses (less than 10%) were the Liberal-Nationals deemed to give a positive response, with 8 qualifieds, and 2 outright nos. By way of comparison, the LGBTI groups deemed that the ALP did not answer 4 questions out of 43, and the Greens only 1 out of the 43 questions, and the clear majority of both responses were deemed to be Yes/Good.

Given that they answered less than a third of the questions asked, it is no surprise that there are entire policy areas which the Liberal-National Coalition have simply not taken a position on, and these touch a number of things which are very important to different sections of the LGBTI community.

Specifically, the Abbott Liberal-National Coalition failed to provide an answer on:

Whether they support the recent amendments to the Sex Discrimination Act which have prohibited discrimination against LGBT people by religious organisations in aged care services
Whether they oppose the introduction of civil unions before the passage of marriage equality
Whether they will continue to issue Certificates of No Impediment, which currently allow Australian couples to marry in other countries which have already legislated for marriage equality
Whether they will attempt to overrule States and Territories that introduce marriage equality (either through new legislation or High Court challenge)
Whether they will continue to fund dedicated LGBTI health initiatives, outside of HIV, and (possibly) some mental health initiatives
Whether they will retain the dedicated National LGBTI Ageing and Aged Care Strategy, and keep LGBTI as a special needs group in the Aged Care Act
Whether they will provide public funding for trans* surgeries
Whether they would help end ‘normalising’ surgery (including coerced sterilisation) on intersex infants
Whether they will use foreign policies resources to advocate specifically for decriminalisation of homosexuality around the world and
Whether they support the ‘resettlement’ of LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and Nauru).

As you can see, that is a pretty impressive roll-call of issues which the Liberal-National Coalition failed to provide an answer on. In my personal opinion, I think that this is a pretty disappointing (*alert: possible understatement) level of detail from people who will likely be occupying the Government benches from next week.

One interpretation of this would be that, by not answering these questions, they are leaving open the possibility of doing any and all of them (which could include doing positive things which they have not answered, but could equally involve doing a range of negative things, including taking away rights for LGBTI people or funding for LGBTI initiatives).

Another interpretation would be that, by failing to outline any concrete negative plans – for example, by failing to state that they will bring back religious exemptions in aged care services in the Sex Discrimination Act – even after being specifically asked, they will not have a mandate to do these when in Government. After all, it is difficult to claim a mandate to roll back rights or strip funding when you keep those policies (if you have them) a secret. And that is an argument that I expect the LGBTI community will be using if the Abbott Government does adopt negative policies in these areas after the election.

Abbott’s Paid Parental Leave Scheme and Same-Sex Parents

Posted on September 3, 2013 by Alastair Lawrie

On Saturday (7 September), it is highly likely that the Liberal and National Parties will together win at least 76 seats (and possibly many more) and that therefore Tony Abbott will be our Prime Minister when he wakes up on Sunday.

There are a range of things which he has promised which essentially amount to undoing, whether in part or in full, things that the Rudd/Gillard/Rudd Governments have done (eg the Carbon Price or the NBN), or simply taking things further in the same direction (such as the mistreatment of refugees). There have been very few major new policies or policy directions from Abbott and the Coalition.

However, there has been one major social policy commitment from Tony Abbott. Indeed, it comes with a substantial financial cost, and he has gone as far as to call it his ‘signature’ policy. That is of course Paid Parental Leave (PPL), for women who earn up to $150,000 per year, paid by the Government for 26 weeks (meaning that it is significantly more expansive in both the size of the payment, and its duration, than the existing Labor scheme).

The full details of Abbott’s PPL scheme were announced on Sunday 18 August, through a pre-release with News Corp papers, followed up by a policy launch, complete with a 14 page glossy document, outlining how the policy would operate in practice. It even included a range of scenarios, using different women’s names and estimating how much they stood to gain (and how much more that would be than the Labor scheme).

From an LGBTI activist’s point of view, however, there was a glaring omission: there was not a single mention of parents who did not neatly fit into a ‘traditional heterosexual/opposite-sex couple’. In none of the 14 pages was there a single mention of non-heterosexual or same-sex couples. Which left me, and countless other LGBTI people around the country, asking two questions:

Are same-sex couples even covered by the scheme?
If they are covered, how are their payments calculated? (which is a legitimate and not necessarily straight-forward question, given the PPL scheme states that, where a heterosexual father is the primary carer, he is entitled to PPL – but if he earns more than the mother, his payments are reduced according to the wage of his female partner).

On the morning of the 18^th, I scanned both traditional and social media in an effort to see whether there was an answer to one or both of these questions. I could find very little outside of an assertion from Samantha Maiden on twitter that yes, same-sex couples would be covered – although that turned out to be based on nothing more than her assumption that they should be covered (I would post the full twitter exchange here except that it took a lengthy back and forth before establishing that she had absolutely no evidence for her original assertion).

I then turned to social media to ask questions directly of Tony Abbott, and, given he represents one of the most populous LGBTI electorates in Australia, Malcolm Turnbull, but neither responded. I even tried to ask the Liberal Party direct: nada. Eventually, in the evening, I managed to get an answer from Joe Hockey. I reproduce a screenshot of that exchange here:

Taking him at his word would mean that, for lesbian couples, if the non-birth mother is the designated primary carer, they would be able to receive the payments based on their own wage, even if it was higher than the birth mother’s. For male same-sex couples, the primary carer’s wage would apply irrespective of whose was higher (those are the clear implications from his response).

Wanting to have more to go on than just a tweet, through my involvement in the NSW Gay & Lesbian Rights Lobby, I also helped to ensure that Paid Parental Leave, and specifically whether it covered same-sex couples on a no less favourable basis than opposite-sex couples, was one of the 42 questions which were asked in the 2013 Federal Election survey of the ALP, Liberal-Nationals and the Greens Parties. While both the ALP and Greens responses addressed this question, the Liberal Party response did not (in fact, the Liberal/Nationals did not answer the vast majority of the questions asked: see www.lgbti2013.org.au for more details, a topic I will be posting more on later in the week).

Anyway, that lack of response did not inspire much confidence in me either – both the formal 14 page policy document, and now the direct answer to a question from the NSW Gay & Lesbian Rights Lobby, Victorian Gay & Lesbian Rights Lobby, Transgender Victoria and Organisation Intersex International Australia, had failed to include any commitment that the PPL policy was intended to be non-discriminatory in its operation.

Which meant that Tony Abbott’s comments on Jon Faine on ABC Radio Melbourne on Friday 30 August were very welcome. From the Guardian Australia website:

“Abbott gets a caller during the Faine interview who is clearly unhappy with lesbian mothers – two of them – getting access to the Coalition’s PPL scheme. Will two lesbian mothers get the payment?

Abbott’s response:

If they both have kids, fine ..

Abbott says the same would happen with the government’s PPL scheme. The caller says at least they wouldn’t get $75,000.”

At the very least, Abbott has committed that his PPL scheme will cover lesbian co-parents (and, given the policy document does include adoptive parents, by rights it should cover gay male co-parents as well).

As an additional source of comfort, on Saturday 31 August at the LGBTI Policy Forum held in Melbourne, the Liberal Member for Higgins, Kelly O’Dwyer, gave the following response to an ABC journalist:

JEFF WATERS: While you’re there, if I may – will the opposition’s paid parental leave scheme include both parents in same sex relationship who is have children?

KELLY O’DWYER: Our paid parental leave scheme is non-discriminatory. We believe that the carer of the child is entitled to the paid parental leave scheme. That is what we have announced. That is what we are committed to implementing. So the person who is going to be looking after the child will be entitled to the paid parental leave scheme which is capped to ensure that that child has the best possible start in life, and that families, all families, heterosexual families, homosexual families, all families are better off. (Applause)

Overall, despite the fact that it has been much harder than it should have been to get a direct answer from Abbott and the Liberal/National Parties on this issue, we are now in a position where they have clearly promised that same-sex couples will be included in its PPL scheme.

Which means that if, for whatever reason (aka Nationals and/or backbench revolt), they do not extend Paid Parental Leave to cover same-sex parents, it will be a broken promise, and on something which Tony Abbott has claimed is his ‘signature’ policy. That would be a massive blow to the credibility of him and his new Government – put another way, given he is likely to be moving into the Lodge next week, there is significant pressure on him to live up to his commitment for his PPL policy to be LGBTI inclusive.

PS Obviously, if there are other places where the Coalition or its MPs have committed to the PPL covering same-sex couples please send them to me and I will link them here. I would hope that Serkan Ozturk at the Star Observer’s interview with Malcolm Turnbull, which is expected to be published on Thursday, will also cover this topic and I will publish his response on this as well.