Today marks the one-year anniversary of the election of the federal Albanese Labor Government. Looking back on those first 12 months, there have been some small but important wins, and some disappointing losses. But above all, there has been plenty of unfinished – and in many cases, un-started – business.
First, to the wins. In November last year, as part of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 reforms, the Government added gender identity and intersex status as protected attributes in relation to the Fair Work Act’s adverse action and unlawful termination provisions. These amendments ensured trans, gender diverse and intersex workers were explicitly included in this law for the first time (although the Government still needs to update the out-dated terminology of intersex status, replacing it with sex characteristics, something Employment and Workplace Relations Minister Tony Burke has thankfully committed to do).
The second set of wins were the announcements from the Government which coincided with Sydney World Pride earlier this year, including:
Development of a 10 Year National Action Plan for the Health and Wellbeing of LGBTIQA+ Australians,
$26 million in grants for research projects seeking to improve the treatment and care of LGBTIQA+ people, through the Medical Research Future Fund, and
A new inclusion and equality fund to support LGBTIQ human rights in the Asia-Pacific region, with initial funding of $3.5 million.
On the other hand, the second half of 2022 saw some disappointing losses. This includes the decision by the Government to reject Greens amendments, supported by the cross-bench, to create an LGBTIQA+ Discrimination Commissioner at the Australian Human Rights Commission. Even if the Government believed the Bill being amended at the time (which related to the method of appointment for Commissioners) was the wrong vehicle for these amendments (which is the excuse they used), they have still not committed to introducing their own legislation to establish this stand-alone independent national voice on LGBTIQA+ rights which, based on recent events, is more needed than ever.
Another disappointing loss was the complete exclusion of LGBTIQ groups, and issues, from one of the major set-pieces of the first year of the Albanese Government: the Jobs and Skills Summit. Not only were LGBTIQ organisations not invited to attend the Summit itself, the Government also did not hold any specific consultations with LGBTIQ groups in the lead-up to it (out of more than 100 it conducted). It is therefore no surprise that the outcomes document from the Summit did not address any specific LGBTIQ issues – at a time when many cohorts within the LGBTIQ community experience significant workplace discrimination and exclusion (especially trans and gender diverse workers).
The above wins and losses could, in some respects, be seen as a decidedly mixed scorecard. Instead, I see it as a fundamentally incomplete one – after all, the issues identified are a long way from a comprehensive LGBTIQ agenda. There are many, many more priorities that the Government has not reached an outcome on – including plenty that haven’t even commenced.
Take, for example, one of the few explicit LGBTIQ commitments the Albanese Government took to the May 2022 election: to protect LGBTQ students and teachers in religious schools against discrimination.
In November 2022, Attorney-General Mark Dreyfus asked the Australian Law Reform Commission to undertake an inquiry on this topic, with a deadline of 21 April 2023. Except, the day before the final report of that review was due to be handed to the Government, the ALRC was given an 8-month extension to 31 December. There is really no need for such an extension – especially when this law reform itself is actually quite straight-forward (after all, Tasmania, the ACT, Victoria and NT all already protect both LGBTQ students and teachers).
The outcome of this process is that it is highly unlikely LGBTQ students and teachers will be protected this year, with any amendments not taking effect until well into 2024. As I wrote at the time of this delay in The Canberra Times, it is example of the ways in which the LGBTQ class of 2023 has been comprehensively failed, by Governments of both persuasions.
On a related note, the Government has not made any commitments to remove broader religious exceptions, found in both the Sex Discrimination Act 1984 and Fair Work Act, which allow religious organisations to discriminate against LGBTQ workers, and people accessing services, across health, housing, disability, aged care and other welfare and community services. The majority of these services are funded by us, the taxpayer, including in aged care – meaning the large increases in aged care funding in the recent federal Budget are going to organisations that can use that money to discriminate against LGBTQ workers.
There are a range of other important LGBTIQ policy areas where the Government has not yet taken concrete action, including:
Inclusion in the 2026 Census. While the Australian Bureau of Statistics has started consultation on the questions which should be included in the next Census, the Government has not given an unequivocal promise that questions on sexual orientation, gender identity and sex characteristics will be included. Such questions are necessary to help deliver essential services to our communities – after all, if we are not counted, we do not count.
Medicare funding for gender-affirming health care. Far too many trans and gender diverse Australians still cannot afford what are vital, and in many cases life-saving, health services. Gender-affirming health services should be publicly-funded via Medicare, removing out-of-pocket costs for this community.
Ending non-consenting surgeries on intersex kids. With the ACT Government soon to pass historic legislation banning many non-consenting surgeries and other medical interventions on children born with variations of sex characteristics (the first jurisdiction in Australia to do so), I am unaware of any Commonwealth Government actions to help ensure intersex kids are protected around the country.
Re-introduction of Safe Schools. The Albanese Government continues to fund the National School Chaplaincy Program to the tune of more than $60 million per year (and even though they have formally removed the requirement that these office-holders must be appointed on the basis of religion, the vast majority still are). In contrast, the Government has had two Budgets to date but is yet to find any money to re-introduce what was an effective, and necessary, program against anti-LGBTIQ bullying in schools.
LGBTIQ policy infrastructure. In addition to an LGBTIQA+ Human Rights Commissioner at the AHRC, there is a clear need for a Minister for LGBTIQ Communities, as well as formal consultative bodies in the Department of Prime Minister and Cabinet, as well as portfolios like Health, Education and Attorney-General’s. Currently, none of these exist.
Even on more symbolic matters, the Government’s record is mixed. While in late February Anthony Albanese became the first Prime Minister to march in the Mardi Gras Parade, and also participated in the World Pride March over Sydney Harbour Bridge in early March, these efforts at visible (some might say performative) inclusivity are undone by his apparent aversion to even saying the word transgender, let alone doing the bare minimum to publicly combat the growing culture war against trans and gender diverse Australians.
Speaking of which, it certainly feels like the Government is missing in action as the LGBTIQ community comes under increasing attacks, and even threats of violence, including the TERF and neo-Nazi rally on the steps of Victorian Parliament, the Christian Lives Matter riot in Belfield in Sydney, and the wave of intimidation against Drag Story Time events in Victoria and now elsewhere around Australia.
Local Councils have been left on their own to deal with what is a growing national crisis of far-right extremism, in a way that may not have happened if the targets had been from other communities. This is perhaps illustrated by the Attorney-General’s ill-timed announcement this week of $40 million in ‘Securing Faith-Based Places’ grants, to protect religious schools and places of worship against violence and discrimination.
Without debating the merits of this scheme – and I obviously agree people should be free to worship in safety – it was a mistake to announce this on IDAHOBIT, certainly without providing equivalent funding for LGBTIQ community security against similar (and in some cases, probably the same) extremists. Nor has the Government made any promises to introduce Commonwealth anti-vilification protections for LGBTIQ Australians, despite committing to prohibit religious vilification.
The Albanese Government still enjoys a large amount of public goodwill, including from many LGBTIQ people – at least partly due to the fact it is not the Morrison Liberal/National Government, a dreadful period during which our community came under relentless and sustained attack.
However, simply not being Scott Morrison is not enough as the Albanese Government enters its second year in office. From an LGBTIQ community perspective, they clearly need to do better, and do more, on the issues which affect us.
Oh, and one final thing. I raise the spectre of Scott Morrison here quite deliberately (despite the risk of PTSD, including my own). Because the coming 12 months is also likely to see the Albanese Government introduce its own Religious Discrimination Bill.
As a community we will need to be on high-alert to ensure this legislation protects people of faith against discrimination on the same basis as existing anti-discrimination laws, without permitting lawful discrimination against others, including LGBTIQ Australians. If it does include anti-LGBTIQ provisions, the Government should be in no doubt we will fight against its law just as hard as we fought against Morrison’s Bill.
Anthony Albanese on election night, 21 May 2022.
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This week saw the 100-day milestone for the new Albanese Labor Government, with lots of attention on issues like climate change, a federal Independent Commission Against Corruption, a referendum to create a constitutionally-enshrined Voice to Parliament, and of course the Jobs and Skills Summit (which I have written about here, and here).
One issue that has received comparatively little focus, but which will be considered by the Senate next week (beginning 5 September), is the possible creation of a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHCR).
I bring this to your attention because there is a strong chance the Government will reject amendments to establish this much-needed position, and this weekend is your last chance to take action to let Prime Minister Albanese and his ministerial colleagues know that you support an LGBTIQA+ Commissioner. But first, some background.
Why an LGBTIQA+ Commissioner?
The AHRC is our national anti-discrimination body, with responsibility for receiving and conciliating discrimination complaints under Commonwealth anti-discrimination laws, including the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004.
The AHRC also has a number of statutory office-holders, with responsibility for publicly advocating for equality and human rights generally, including the President and the Human Rights Commissioner, as well as positions dedicated to specific attributes or communities, including the:
Aboriginal and Torres Strait Islander Social Justice Commissioner
Age Discrimination Commissioner
Children’s Commissioner
Disability Discrimination Commissioner
Race Discrimination Commissioner, and
Sex Discrimination Commissioner.
Notice who’s missing? That’s right, there’s no Commissioner with responsibility for LGBTIQA+ issues.
That’s because the 2013 amendments to the Sex Discrimination Act which added sexual orientation, gender identity and intersex status as protected attributes in that law did not create such a position. These are now the only attributes in the four main Commonwealth anti-discrimination laws not to have a Commissioner attached to them.
This omission has left LGBTIQA+ Australians at a distinct disadvantage over the past nine years, with no Commissioner with primary responsibility to speak on issues affecting our community, including during the marriage equality debate (while former Human Rights Commissioner Ed Santow did a good job, it was still only a small part of his overall role).
With ongoing attacks on LGBTIQA+ rights, including the rise of transphobia in both politics and the media, I believe it is beyond time there was a Commissioner within the AHRC empowered to advocate on our behalf, without other competing responsibilities.
The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022
The absence of an LGBTIQA+ Commissioner has become topical in the context of the Government’s Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022, one of the first laws introduced since the election.
This is an important Bill, which seeks to enforce a transparent and merit-based appointment process for the statutory office-holders discussed above, both to prevent a repeat of the previous Government’s appointments which failed to meet these criteria, and to maintain the AHRC’s international accreditation as an ‘A-status’ national human rights institution (which is under threat because of those same non-transparent appointments). I support its passage.
However, introducing legislation which focuses on the appointment of Commissioners under national anti-discrimination laws obviously draws attention to the lack of an LGBTIQA+ Commissioner under those same laws.
In this context, and responding to lobbying from LGBTIQA rights group Just.Equal Australia, new Greens MP for Brisbane Stephen Bates introduced the following amendment during the Bill’s Second Reading debate in the House of Representatives in early August:
‘whilst not declining to give the bill a second reading, the House calls on the Government to establish a Human Rights Commissioner for LGBTIQA+ people within the Australian Human Rights Commission.’
In the words of Mr Bates:
‘The lack of such a commissioner is an obvious oversight that we can remedy here today. This remedy would send a strong and clear message to the LGBTIQA+ community that the era of the homophobia and transphobia from the previous government has come to an end, and signal a new approach in engaging with and protecting communities that have suffered systemic oppression for centuries. The community is not asking for anything unreasonable. There already exist commissioners for race discrimination, disability discrimination and so many others. It is vitally important that the LGBTIQA+ community have the same protection of our rights afforded to us.’
This amendment was supported by a number of cross-bench MPs. This includes MP for Kooyong, Dr Monique Ryan, who said:
‘There is a clear and urgent need for a dedicated LGBTIQA+ human rights commissioner. The absence of such diminishes the reality of discrimination against this group of individuals. The absence of such means that no-one at the AHRC has the resources or experience to advocate for and articulate the concerns of the community in legislation, policy reform or public education.’
And the MP for Goldstein Zoe Daniel, who noted:
‘Traditionally, the human rights of the LGBTQI+ community were part of the Human Rights Commissioner’s portfolio, but with that portfolio also holding religious freedom, in recent history I think there’s been a conflict between those two areas. We know that in the last parliament this led to a toxic debate that caused great distress to members of the LGBTQI+ community, particularly trans people, compounding mental health issues for children in this community particularly. For that reason, I think that direct representation is needed.’
While the MP for Warringah Zali Steggall spoke of her front-row view of the transphobic campaign of her failed Liberal Opponent during the recent election:
‘it is clear that in Warringah during the election we had very inflammatory debates about members of our community and their opportunity for inclusion. I have to say that it did raise concerns for me. There was a lack of information in the public domain about the real status of the law when it came to transgender rights and issues within the LGBTQI community. I am concerned that issues that are specific to members of the LGBTQI community do at times get overlooked or submerged into the greater responsibilities of the Sex Discrimination Commissioner, so I think there is merit in there being a more specific mandate for addressing those issues.’
Despite these, what I would describe as compelling, reasons, the Government chose to vote against the Bates amendment, ensuring its defeat.
Attorney-General Mark Dreyfus made two main arguments against the amendment in his own speech:
‘The government will not support that second reading amendment. Let’s be clear about this: the effect of the second reading amendment, if it succeeds, would be to negate the bill, to stop these important measure that are contained in this bill from coming into effect…
‘While we of course understand the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ commissioner, this bill is not the vehicle to create such a position. The government recognises that it is important to consider how best the commission can operate to promote and protect the human rights of all members of the Australian community, including LGBTIQA+ people. I acknowledge and commend the work that the commission already undertakes in relation to LGBTIQA+ rights, which is led by the Sex Discrimination Commissioner, Kate Jenkins. There will no doubt be further discussion on this proposal, as well as, I hope, discussion on other opportunities to strengthen the work of the commission in the future.’
The first argument is a matter of debate around the wording of the Bates amendment, and may or may not be correct. It is also probably not relevant to the different, substantive amendments proposed by Greens Senator David Shoebridge and to be voted on in coming days (discussed in more detail below).
However, the second argument is incredibly weak. Claiming LGBTIQA+ rights are already worked on by the Sex Discrimination Commissioner is simply not good enough, for at least two reasons. First, the Sex Discrimination Commissioner has a full-time role of their own, with plenty to focus on in terms of sexism, and sexual harassment – they, understandably, have limited capacity to simultaneously focus on anti-LGBTIQA+ discrimination.
Second, this arrangement does not seem to be working, especially when checking the LGBTI section of the AHRC website itself. Where not only are there no current projects on LGBTI issues – and haven’t been any since October 2021 – there are no news items from the past eleven months either. After all, it’s not like there are any substantive issues of LGBTIQA+ equality which still need to be addressed, or any major debates involving transphobia which have happened during that time… [sarcasm]
What is perhaps most disappointing about the Attorney’s comments is that, irrespective of the Government’s position on the specific Bates amendment, he was unwilling to make a commitment to creating an LGBTIQA+ Commissioner at all, even at some point in the future.
This disappointment was compounded two days later when the Government and Opposition united to defeat a Greens motion in the Senate to at least hold an inquiry into the Bill, to allow for consultation with the LGBTIQA+ community about the need to create a Commissioner within the AHRC.
All hope is not lost
While there is no denying those two votes were setbacks, there is still a third chance for this issue to be progressed.
As mentioned above, Greens Senator for NSW David Shoebridge has introduced a more comprehensive set of amendments to the Bill, which would create an LGBTIQA+ Commissioner on exactly the same basis as the other attribute-based Commissioners. You can see the details of those amendments here.
I understand these amendments are likely to be voted on in the Senate this coming week, and potentially on Tuesday 6 September. Which means we have just days left to convince the Government, as well as cross-benchers like David Pocock, Jacqui Lambie and Tammy Tyrrell, to support these amendments.
The easiest thing you can do, right now, is to sign and then share this petition from Just.Equal Australia calling on the Government to support an LGBTIQA+ Commissioner.
If you have more time, you can also write to the Prime Minister, Attorney-General and/or other members of the Government (like your local MP or Senator), urging them to support the equal treatment of LGBTIQA+ people by establishing an AHRC Commissioner for our community.
Below is the letter I have sent this morning to Attorney-General Dreyfus.
*****
3 September 2022
The Hon Mark Dreyfus QC MP
Attorney-General
PO Box 6022
House of Representatives
Parliament House
CANBERRA ACT 2600
Dear Mr Dreyfus
Please create an LGBTIQA+ Commissioner within the Australian Human Rights Commission
I am writing to call on you to create a Commissioner for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer and Asexual (LGBTIQA+) issues within the Australian Human Rights Commission (AHRC).
The establishment of this position is long-overdue. While there are Commissioners at the AHRC for a number of other attributes within Commonwealth anti-discrimination law, there are none with specific responsibility for advocating for LGBTIQA+ equality and human rights.
This has caused a distinct disadvantage for the LGBTIQA+ community when our rights are up for debate, including during the emergence of transphobic campaigns in politics and in the media over the past 12 months.
The creation of an LGBTIQA+ Commissioner within the AHRC would also be consistent with the 2021 ALP National Platform, which was developed ahead of the election. This included commitments that:
‘Labor will work closely with LGBTIQ Australians and advocates to develop policy that will… strengthen laws and expand initiatives against discrimination, vilification and harassment on the basis of sexual orientation, gender identity or sex characteristics’ (page 64), and
‘All Australians should be able to go about their lives free from discrimination. Labor is the primary architect of the anti-discrimination law framework in Australia. We will continue to defend and enhance that framework to ensure that it is fit for purpose, accessible and promotes equality’ (page 66).
I hope you would agree that creating an LGBTIQA+ Commissioner will ‘strengthen’ and ‘enhance’ initiatives against discrimination on the basis of sexual orientation, gender identity and sex characteristics, while ‘enhancing’ the Commonwealth anti-discrimination framework.
I note that you, and therefore the Government, opposed a second reading amendment in the House of Representatives to your Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022 from the Greens which called on the Government to ‘establish a Human Rights Commissioner for LGBTIQA+ people’ within the AHRC.
While one of your arguments was technical (which has hopefully been addressed by the revised, comprehensive amendments proposed by the Greens in the Senate), I am disappointed by another argument you raised, that this work is already being performed by the Sex Discrimination Commissioner.
In my opinion, the Sex Discrimination Commissioner already has a (more than) full-time role in advocating on issues of sexism, and sexual harassment. They do not have the capacity to address LGBTIQA+ discrimination as well, nor should addressing LGBTIQA+ discrimination be treated as some kind of add-on to somebody else’s role, with the consequence that our community’s issues are inevitably ignored (noting, for example, that the AHRC has no current projects on LGBTI discrimination listed on its website, and have not posted even a news item since October 2021).
Now that the Bill has progressed to the Senate, I urge you and the Albanese Labor Government to support Senator David Shoebridge’s amendments to create an LGBTIQA+ Commissioner with the same powers and responsibilities as existing office-holders within the AHRC.
In the event you continue to oppose these specific amendments, for whatever reason, I call on you to:
Commit to the Government itself creating an LGBTIQA+ Commissioner within the AHRC, and
Provide a clear timeline for when this position will be established.
Thank you in advance for considering the issues raised in this correspondence. Please do not hesitate to contact me at the details provided should you like to discuss the above.
Sincerely
Alastair Lawrie
*****
Update: I received the following reply from a Director in the Human Rights Branch of the Attorney-General’s Department:
4 October 2022
Dear Mr Lawrie
Thank you for your email of 3 September 2022 to the Attorney-General, the Hon Mark Dreyfus KC MP, regarding the creation of a LGBTIQA+ Commissioner at the Australian Human Rights Commission (the Commission). The Attorney-General has requested that the Attorney-General’s Department respond to you on his behalf.
The Government believes that all Australians are entitled to respect and dignity, the opportunity to participate in society, and receive the protection of the law regardless of their gender identity, sexual orientation and intersex status. The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the grounds of gender identity, sexual orientation and intersex status in many areas of public life, including employment, education, in the provision of goods, services and facilities. The Government acknowledges the work that the Commission already undertakes in relation to LGBTIQA+ rights, led by the Sex Discrimination Commissioner, Kate Jenkins.
The Government recognises that it is important to consider how best the Commission can operate to promote and protect human rights of all members of the Australian community, including LGBTIQA+ people. The Government understands the strong sentiment expressed by members of the community in support of a dedicated LGBTIQA+ Commissioner. There will no doubt be further discussion on this proposal, as well as other opportunities to strengthen the work of the Commission, in the future.
Thank you for bringing your concerns to the Attorney-General’s attention.
Yours sincerely
[Details redacted]
Commonwealth Attorney-General Mark Dreyfus QC MP.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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The Albanese Labor Government’s Jobs and Skills Summit will be held on September 1 and 2, 2022, now just eleven days away.
While there has been significant coverage of a wide range of issues relevant to this conference, there has been little to no reporting of how it will affect lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers.
The letter below, to Prime Minister Albanese, Treasurer Chalmers and a number of other Ministers, seeks to place at least two important and urgent LGBTIQ policy matters onto the Jobs and Skills Summit agenda.
As always, I will publish any responses received.
*****
Prime Minister Anthony Albanese
Treasurer Jim Chalmers
Attorney-General Mark Dreyfus
Minister for Employment and Workplace Relations Tony Burke
Minister for Health and Aged Care Mark Butler
Minister for Aged Care Anika Wells
Minister for Education Jason Clare
Minister for Social Services Amanda Rishworth
Minister for the NDIS Bill Shorten
Sunday 21 August 2022
Dear Prime Minister Albanese and other Ministers
Please include LGBTIQ workers in the Jobs and Skills Summit
I am writing to you about the upcoming Jobs and Skills Summit, and the need to include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) workers and the issues which affect them.
I was initially encouraged to observe the Summit would include a focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’[i]
However, I am both concerned and deeply disappointed by the Jobs and Skills Summit Issues Paper, released on 17 August,[ii] which completely omits LGBTIQ Australians as one of the groups which should be considered as part of this focus.
Specifically, page 2 of that document states:
‘While the participation rate is around historically high levels, many Australians still face barriers to secure and well-paid employment. In particular, women, First Nations people, people with disability, older Australians, migrants and refugees, and those living in certain regional and remote areas face specific barriers to entering the workforce. This means there are further opportunities and obligations to ensure the benefits of strong labour market conditions are accessible to all people in Australia.’
There is no mention of LGBTIQ workers here, nor on any other of the Issues Paper’s 14 pages.
This is despite the fact employment-related discrimination against LGBTIQ workers, including and perhaps especially transgender and gender diverse workers, is well-documented.
For example, a 2021 paper[iii] found that for transgender, including gender diverse and nonbinary (trans), people:
‘The unemployment rate of 19% was three times that of the Australian general population rate of 5.5% in May 2018 and well above the youth unemployment rate (12.2%). Notably, 33% of respondents perceived discrimination in employment. Unemployment may also occur due to difficulty with name and identity documents, discrimination in basic housing and health care, and the impact of mental health conditions such as depression and anxiety on an individual’s ability to seek or maintain employment. Conversely, levels of depression and anxiety may be higher due to unemployment.’
The omission of LGBTIQ workers from the Jobs and Skills Summit Issues Paper also comes despite many LGBTIQ workers enjoying lesser workplace rights and protections than other employees, and a large number of employers being legally entitled to fire, to refuse to hire, or to otherwise discriminate against, LGBTQ workers simply because of their sexual orientation and/or gender identity. This often includes the use of taxpayers’ money in said discrimination.
These issues must be addressed if the Jobs and Skills Summit is to indeed focus on ‘expanding employment opportunities for all Australians including the most disadvantaged.’
I include below two fundamental, urgent issues which therefore must be included in the Summit’s agenda.
Protect transgender, gender diverse and intersex workers under the Fair Work Act
Currently, transgender, gender diverse and intersex workers do not enjoy the same legal status under the Fair Work Act 2009 (Cth) as other employees, including women, people with disability, and even lesbian, gay and bisexual people.
This is because the adverse action protections in section 351, and unlawful termination protections in section 772, contain a long list of protected attributes – such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ – but omit the protected attributes of gender identity and sex characteristics (intersex status).
In practice, this means transgender, gender diverse and intersex workers may not have the same guaranteed access to the low-cost, low-barrier Fair Work Commission as other employees who are subjected to mistreatment or unfair dismissal simply because of who they are.
Despite raising the lack of explicit Fair Work Act protections for these workers with the previous Government for several years,[iv] they refused to take any action to address this discrepancy, even voting against straight-forward Greens amendments to the 2021 Respect@Work Bill which would have remedied the situation, providing much-needed remedies to workers.[v]
I note the then-Labor Opposition voted for some, although not all, of those Greens amendments.[vi] I also note that, as a result of advocacy from myself and others, the 2021 ALP National Conference passed the following special resolution:[vii]
‘Aligning the Fair Work Act and Sex Discrimination Act
Labor will amend the relevant sections of the Fair Work Act to align with the Sex Discrimination Act to cover workers who are currently not protected.’
Unfortunately, while implementing this commitment – which would involve adding gender identity and intersex status as protected attributes in the Fair Work Act – would achieve some improvement, it would not bring that legislation up to best practice.
This is because sex characteristics[viii] is considered a more accurate, and more inclusive, protected attribute, and is the terminology preferred by intersex advocates, including Intersex Human Rights Australia.
Therefore, at least part of the response to this question on page 5 of the Jobs and Skills Summit Issues Paper:
‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’
is to add gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth), including in relation to adverse action (s351) and unlawful termination (s772), so that transgender, gender diverse and intersex workers have the same rights and protections as everyone else.
Recommendation 1: The Jobs and Skills Summit must ensure transgender, gender diverse and intersex workers have the same rights and protections under the Fair Work Act as other employees, including in relation to adverse action and unlawful termination.
2. Remove special exceptions allowing religious organisations to discriminate against LGBTQ workers
That same question – ‘How can we ensure workplaces are safe and fair, particularly for those people at higher risk of harassment, discrimination and other breaches of workplace minimum standards?’ – is also relevant to the second issue which I submit must be on the Jobs and Skills Summit agenda: removing special exceptions which allow religious bodies to discriminate against lesbian, gay, bisexual, transgender and queer (LGBTQ) workers.
In fact, this issue is pertinent to a range of discussion, and questions, covered in the Issues Paper, including this statement on pages 6 and 7:
‘Addressing the barriers to participation and promoting equality of opportunity will contribute to a stronger and more inclusive economy, enable more Australians to realise their full potential, and help address current labour market challenges. This, in turn, will help ensure that the benefits of full employment are shared fairly across our community.’
And the associated questions on page 7:
‘How can we reduce the barriers to employment for some Australians? How should governments, unions, business and the broader community best coordinate efforts to achieve this?’ and
‘What strategies can be used to reduce discrimination and increase awareness of the value that diversity can bring to business and the broader economy?’
And on page 11: ‘How do we navigate workforce shortages in the care economy while supporting our frontline workers?’
Many people are aware of this issue because of public debate over the past five years surrounding ‘religious freedom’, the previous Government’s proposed (but thankfully-defeated) Religious Discrimination Bill, and the discriminatory (mis)treatment of LGBTQ students, teachers and other staff under the Sex Discrimination Act 1984 (Cth).
Many people may not be aware of how broad these exceptions are in practice, not just under the Sex Discrimination Act, but also under the Age Discrimination Act 2004 (Cth), Fair Work Act itself (undermining both its adverse action and unlawful termination protections), and the majority of state and territory anti-discrimination laws (including in my home state of NSW where the Anti-Discrimination Act 1977 has the broadest religious exceptions in the country).
The effects of these exceptions are all-too-real for LGBTQ workers.
Not only can LGBTQ teachers be denied, or fired from, jobs for which they are otherwise eminently qualified, simply because of their sexual orientation and/or gender identity.
But so too can LGBTQ aged care workers, nurses, doctors, social workers, disability workers and other employees across what is described in the Issues Paper as the care economy.
There are a range of serious consequences which flow from this discrimination, including:
For LGBTQ workers, obviously this includes being denied employment, and losing significant financial benefits, or alternatively being forced to stay closeted while in the workplace, with associated mental health harms.
For the LGBTQ community more broadly, this discrimination reinforces poorer health and well-being outcomes, as well as entrenching economic disadvantage.
For the services themselves, they are rejecting the best person for the job on the basis of criteria which has nothing whatsoever to do with their ability to do the job. Alternatively, they are forcing some employees to not bring their whole selves to work, thereby diminishing the quality of the work those employees do.
This also means that, for people accessing these services, they are effectively denied being served by the most qualified person for the role. A person in an aged care home deserves the best aged care worker possible, not the best cisgender-heterosexual worker. A student deserves to learn from the most qualified teacher, not the most qualified cisgender-heterosexual one. And so on. And so on. Across society.
It should be remembered that the vast majority of these roles are delivering what are basically public services, like education, health, aged care, or social and disability services, and in nearly all cases using public – or taxpayers’ – money to do so. That means every Australian is helping to fund this discrimination, and even more egregiously, that LGBTQ workers are being asked to subsidise their own oppression.
Finally, in an era of large and growing worker shortages across education, health, aged care, and social and disability services, permitting lawful discrimination on the basis of sexual orientation and gender identity discourages at least some members of the LGBTQ community from considering careers in these areas – which is perhaps a rational response to the knowledge that large employers in your chosen profession may be lawfully able to refuse to hire you, or fire you, just because of who you are.
For all of these reasons, a Jobs and Skills Summit that is focused on ‘expanding employment opportunities for all Australians including the most disadvantaged’ must seriously consider the harmful impacts of special exceptions which allow religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
And I submit it should recommend that such exceptions be abolished, not just for the benefit of those LGBTQ workers, but for the benefit of people accessing publicly-funded services in education, health, aged care, and social and disability services, and the benefit of the Australian community generally.
Recommendation 2: The Jobs and Skills Summit should call for the repeal of special exceptions allowing religious organisations to discriminate against LGBTQ workers simply because of their sexual orientation and/or gender identity.
Thank you in advance for considering the above issues ahead of the Jobs and Skills Summit. Please do not hesitate to contact me at the details provided should you require additional information.
Sincerely
Alastair Lawrie
Will Prime Minister Anthony Albanese ensure that significant issues affecting LGBTIQ workers are considered at the Jobs and Skills Summit?
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
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[vi] The Labor Party supported the inclusion of gender identity and intersex status as protected attributes in the Fair Work Act – which are the same attributes already covered under the Sex Discrimination Act 1984 (Cth) – but did not support amendments which would have added gender identity and sex characteristics as protected attributes, with the latter terminology now considered best practice, and supported by intersex community organisations including Intersex Human Rights Australia.
This is the second in a two-part series of articles reflecting on the recent federal election and its impact on LGBTIQ Australians, with this post focusing on what it means for the upcoming Parliamentary term. You can read the first post, looking back on the past three years, ‘The worst of times’, here.
The same thing could just as easily be written now after the federal election on May 21 which saw the Morrison Liberal/National Government defeated.
Yes, this outcome is a massive relief for LGBTIQ Australians, who, as I wrote last weekend, have just endured the worst Commonwealth Parliamentary term for our rights in my lifetime.
And it obviously means the threats of the Coalition’s damaging and divisive Religious Discrimination Bill (or ‘Religious Freedom Bill’ in disguise), and Liberal Senator Claire Chandler’s legislation attacking trans women and girls’ participation in sport, have receded (for now).
But, just like in NSW, not going backwards on LGBTIQ rights is not the same thing as going forwards: the many changes to Commonwealth laws and policies to make our lives better which were needed on May 20 were not somehow magically introduced on May 22.
Progress still needs to be delivered. In many, many areas.
I wrote about some of those LGBTIQ law reform priorities earlier this year, here.
But perhaps a better and more comprehensive outline of what needs to happen is found in the Just.Equal Australia pre-election survey of the LGBTIQ community and its priorities, which included (but was definitely not limited to):
Removing current exemptions in the Sex Discrimination Act that allow discrimination against LGBT people, for example, by faith-based schools, hospitals and charities
Improving LGBTIQA+ safety and inclusion in schools
Improving LGBTIQA+ access to appropriate and inclusive aged care
Establishing LGBTIQA+ policy groups in federal government agencies such as health, education, the federal police, justice and the Prime Minister’s department
Developing mechanisms to consult with all existing LGBTIQA+ organisations and fund them to properly represent their constituents
Developing strategies around suicide and mental health, aged-care, homelessness, Indigenous LGBTIQA+ people and family violence prevention
Recognising LGBTIQA+ people in the Census by asking questions about sexual orientation, gender identity and variations of sex characteristics
Removing the ban on sexually-active gay/bi men, and trans women, giving blood and replacing it with a policy of individual risk assessment for all potential donors
Medicare funding for gender transition and other gender-affirming health care, and
Legislative prohibition of unconsented and deferrable medical interventions on children born with innate variations of sex characteristics.
I can almost hear the reactions of the ACL, and extremist columnists in the Murdoch media, to such a list: that it represents some kind of radical and dangerous left-wing agenda. Or, to transphobic bigots like Katherine Deves, that its implementation would be a ‘Rainbow Reich’.
But is it, really? Or are these priorities actually eminently reasonable, reflecting nothing more than the aspiration to enjoy what many (although not all) Australians already take for granted?
There is nothing radical about wanting all children to learn and to grow in safe and inclusive school environments, free from discrimination on the basis of who they are.
There is nothing dangerous in suggesting that teachers and other workers should be employed on the basis of their skills and qualifications, not their sexual orientation or gender identity.
The desire to grow old with access to high-quality, safe and supportive aged care services must be a universal one.
As is the basic want for essential Medicare-funded health services to allow people to live the lives they were meant to enjoy.
And surely very few people could argue against protecting children born with innate variations of sex characteristics from deferrable medical interventions until they are old enough to consent to them themselves?
While many of the other priorities (establishing policy groups and developing strategies, providing funding for LGBTIQA+ organisations and including LGBTIQA+ people in the Census) are merely the formal mechanisms required to ensure these objectives are achieved, and maintained.
Seen in this way, the above priorities are neither radical, nor dangerous. Instead, they are both reasonable, and the bare minimum of what needs to happen.
The fact this list (and the much longer list in the Just.Equal Australia survey report itself) is so lengthy is instead a reflection of the lack of action on these issues over the past nine years, with the Abbott, Turnbull and (especially) Morrison Governments either ignoring the LGBTIQ community and our needs, or in some cases (like the safe schools debate, plebiscite and postal survey, and proposed Religious Discrimination Bill) going out of its way to make our collective lives much more difficult.
So, we know what the needs are. How likely are they to be met under the new Albanese Labor Government?
The answer to that question is both complicated, and also pretty straight-forward (which we’ll return to later).
To begin, we should acknowledge that many LGBTIQ Australians are viewing the new Government with complex emotions, including an understandable sense of caution, anxiety even.
This is due both to what many perceived to be a failure to adequately call out the toxic transphobia of Katherine Deves during the election campaign itself. As well as the decision in February to vote for the Morrison Government’s Religious Discrimination Bill despite the failure of Labor’s amendment to remove the damaging statement of belief provision, and the failure of Labor to support cross-bench amendments to remove the Bill’s override of state and territory anti-discrimination protections for teachers in religious schools.
As with many other areas, the Albanese Labor Government also went to the election with what could be described as ‘small target strategy’ in relation to LGBTIQ policy.
In The Conversation, Paula Gerber noted this included commitments to:
Count LGBTIQ people in the 2026 Census
Protect LGBT students in religious schools against discrimination, and
Increase funding for LGBTIQ+ health, mental health and family violence prevention services.
Professor Gerber also describes the much vaguer, and far less reassuring, policy to ‘amend anti-discrimination laws so that… all teachers are protected from discrimination at work (while maintaining the right of religious schools to preference people of faith in the selection of staff)’ [emphasis added]. It remains to be seen how much (unjustifiable) discrimination against LGBT teachers such a policy would continue to permit.
On a broader range of LGBTIQ policy issues, such as discrimination against LGBT workers and people accessing services by other religious organisations, Medicare funding for gender transition, and ending coercive surgeries on intersex children, the then-Opposition was largely silent.
Which means the Albanese Government’s LGBTIQ policy agenda is simultaneously far superior to that of the Government it replaced and far less than what is necessary to deliver genuine equality.
Our first challenge therefore is to push the new Government to go much, much further in its policy commitments.
The second challenge is related to the first – and that is, even if we secure additional LGBTIQ policy commitments, we will need to keep up the pressure to ensure they are actually delivered amidst what will be an incredibly packed legislative agenda.
After all, it is not just LGBTIQ issues on which the previous Government held back progress. In this term of Parliament alone, the Albanese Government will need to deliver on real climate change commitments, creating a federal independent commission against corruption, implementing all of the Respect@Work recommendations, and holding a referendum to enshrine a Voice to Parliament in the Constitution as part of the Uluru Statement from the Heart (and plenty more besides, such as dealing with the energy and cost of living crises).
It will take sustained advocacy from the LGBTIQ community to ensure our issues are not forgotten, or put in the ‘second term basket’ (with no guarantee they will ever be dealt with).
The third challenge is a familiar one – the return of a Religious Discrimination Bill, which incoming Attorney-General Mark Dreyfus has confirmed will come before Parliament at some point this term.
Now, I know many people will be triggered simply by hearing that three-word legislative title alone, but we should remember that prohibiting discrimination on the basis of religious belief is not a negative thing in and of itself (with most states and territories already doing so, including jurisdictions with strong LGBTI anti-discrimination protections like Tasmania, the ACT and, following recent reforms, Victoria).
But we will also need to be prepared to push back, firmly, against any provisions which go beyond prohibiting discrimination on the basis of belief to instead entrench the ability of religious individuals and organisations to discriminate against women, LGBT people, people with disability and people of minority faiths (which were the problematic features of the Morrison Bill).
The good news is the make-up of the new Parliament looks to be conducive to meeting these challenges.
That includes the presence of people who I would consider allies to the LGBTIQ community inside the Government itself, including in key portfolios (starting with Mark Dreyfus himself, who was Attorney-General under the last Labor Government when the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was passed).
And of course it includes the expanded Parliamentary presence of the Australian Greens, now with four seats in the House of Representatives (up from one) and 12 in the Senate (up from nine).
Throughout the last term, not just on the Religious Discrimination Bill but on other issues like amendments to the Fair Work Act 2009 (Cth) to explicitly protect trans, gender diverse and intersex workers against discrimination, the Greens consistently demonstrated their support for LGBTIQ law reform (which is a testament to the great work of their then-spokesperson for LGBTIQA+ issues, Senator Janet Rice – new spokesperson Stephen Bates has big shoes to fill).
The independent cross-bench has also grown significantly too. We already had Helen Haines, Rebekha Sharkie, Zali Steggall, and Andrew Wilkie, all of whom voted to support our community throughout the Religious Discrimination Bill debate.
They have been joined by six new so-called ‘Teal’ MPs. While they are obviously yet to have a voting record against which we can judge them, they all represent electorates which voted strongly in favour of marriage equality:
Kate Chaney in Curtin (72.2% Yes)
Zoe Daniel in Goldstein (76.3%)
Monique Ryan in Kooyong (73.7%)
Sophie Scamps in Mackellar (68%)
Kylea Tink in North Sydney (71.8%), and
Allegra Spender in Wentworth (80.8%).
Given those results, if any of them choose to vote against LGBTIQ equality this term, they could find themselves exiting the Parliament at the next poll.
The Senate also looks promising, with the cross-bench including new Senator for the ACT David Pocock (who was an early and passionate supporter of marriage equality), and now two members of the Jacquie Lambie Network (noting that Lambie herself had been a strong advocate against the Religious Discrimination Bill, including seeking to protect Tasmania’s best practice anti-discrimination laws from Commonwealth override).
Overall, then, while there are challenges ahead in terms of making long-overdue progress on LGBTIQ equality, and navigating how and when to advance particular issues might sometimes be complex, there is also plenty of opportunity, if only we can take advantage of it.
Or, in the more straight-forward words of my National Party-voting parents on the night after the election (yes, we have some interesting discussions about politics): ‘There might never be a better election outcome to achieve the changes you have been campaigning on for so long.’
I agree, and will be doing my best to make sure they happen.
Because LGBT students in religious schools have already waited long enough.
LGBT teachers and other workers, too.
Trans and gender diverse people have waited long enough to have access to Medicare-funded gender-affirming healthcare, including transition.
And children born with innate variations of sex characteristics have waited far, far too long to have their fundamental rights to bodily autonomy protected.
The last term of Commonwealth Parliament truly was the worst of times. There is absolutely no guarantee the current term of Parliament will be the best. But there’s also no reason why it can’t be. So let’s get to work.
NB This post is written in a personal capacity, and does not reflect the views of employers past or present.
Prime Minister Anthony Albanese on election night. There is plenty of work to do to ensure it is ‘A Better Future’ for LGBTIQ Australians.
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
The Senate Legal and Constitutional Affairs Committee has been conducting an inquiry into the Religious Discrimination Bill 2021 over summer.
As part of that inquiry, it held two days of public hearings, on Thursday 20 and Friday 21 January, with a range of witnesses from religious organisations, civil society, business, legal groups, the Australian Human Rights Commission and Attorney-General’s Department.
Here are five things we learned from those hearings, ahead of the Committee’s final report, which is due to be tabled this afternoon (Friday 4 February), prior to debate on the Bill resuming in the House of Representatives next Tuesday (8 February).
Citipointe’s conduct is not an outlier – in fact, it’s exactly the point
By now, most people will be familiar with the situation at Citipointe Christian College in Brisbane, which this time last week, issued a new enrolment contract seeking to discriminate against LGBT students generally, and trans and gender diverse students in particular.
What is also important to note is the way in which they sought to justify this discrimination. Clause 26 of their contract in particular tries to dress it up as discrimination on the basis of religious belief about gender identity, rather than on the basis of gender identity itself:
‘The Parents acknowledge and accept that, should I/we not share the College’s commitment to fostering these fundamental doctrinal precepts, this will constitute a serious departure from the religious precepts upon which Citipointe Christian College is based and will afford Citipointe Christian College the right to exclude a student from the College who no longer adheres to the College’s doctrinal precepts including those as to biological sex, which constitute an important tenet of the College’s Christian religion (emphasis added).’
Now, it is highly likely that Citipointe’s actions would be unlawful under the Queensland Anti-Discrimination Act 1991, not just because that legislation does not allow religious schools to discriminate against students on the basis of gender identity, at all, but also because neither does it allow them to discriminate against students on the basis of religious belief beyond the point of initial enrolment.
Therefore, even if the school was successful in arguing this was indeed discrimination on the ground of religious belief about gender identity, it still couldn’t lawfully discriminate against existing trans and gender diverse kids.
Unfortunately, the same safeguard does not exist in the Religious Discrimination Bill, which allows religious schools to discriminate against students on the basis of religious belief not just at the point of enrolment, but throughout their education.
And this right will exist, even if Liberal moderates are successful in amending the Sex Discrimination Act 1984 (Cth) to remove specific exceptions allowing religious schools to discriminate under that law.
Which means, if the Religious Discrimination Bill is passed in its current form, religious schools will continue to discriminate against LGBT students, ‘under the guise of religious views’, rather than sexual orientation and gender identity.
But the outcome will still be the same: LGBT kids mistreated because of who they are.
Above all, the attempted actions by Citipointe on this issue are not an outlier – in fact, multiple religious organisations at the Senate hearings told us this is what they would do.
For example, there was this exchange involving Mr Mark Spencer, Director of Public Policy, Christian Schools Australia:
Senator Andrew Bragg (Liberal): Finally – I’m just conscious of time – on the issue of children in schools, I understand that there was some discussion earlier about the different clauses that may or may not be considered by this parliament. My question is really more on the principle here, which is: do you want to have a right in the law to expel gay kids?
Mr Spencer: Again, you’re making a sweeping statement there that needs a bit more nuance. For a start, you talk about gay kids. Are you talking about same-sex attracted kids who might be committed to living a biblical authentic life? Are you talking about young people who may be, by their behaviour, not meeting the conduct standards of the school? There are a whole range of difference scenarios in there that you need to be unpacking and considering. The short answer is: no, no child has been, and no child do we want to sack simply because they might be same-sex attracted.
Senator Bragg: So your answer is no?
Mr Spencer: The answer is: no child do we want to expel simply because they’re same-sex attracted (emphasis added).
Translation: Christian Schools Australia reserve the right to discriminate against, and even expel, any gay student who is not ‘committed to living a biblical authentic life’. Which means affirming statements like ‘homosexuality is intrinsically disordered’, and pledging to be celibate for life.
In other words (or my words in fact): If a gay kid hates themself enough, they can stay. But if they do not believe who they are is inherently wrong, they can be lawfully mistreated.
Or this exchange with Right Reverend Dr Micheal Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney:
Senator Bragg: I guess the question is: should you be allowed to discriminate against someone based on their sexual preference if they are teaching in accordance with the ethos of the school?
Bishop Stead: No – sorry, I may have misunderstood your question. None of the religious bodies are arguing for the right to discriminate on the basis of sexuality or gender. What we’re arguing for is the right to be able to discriminate on the basis of religious belief. If it happens that somebody’s religious belief also reflects their sexuality or their gender in a way which is inconsistent with the belief of the organisation-
…
Bishop Stead: Yes. The religious institutions are not seeking the right to discriminate on the basis of sexuality, gender or any of the other protected attributes-
Senator Deb O’Neill (ALP): Race, disability, age-
Bishop Stead: Thank you. They’re looking for the right to, in the wrong language, ‘discriminate on the basis of religion’. We would say ‘to preference on the basis of religion’ – to act in accordance with their religious belief. It’s only at the point at which somebody’s religious belief has changed to reflect their sexuality or gender that makes it inconsistent with the school that we’re into this area of intersectionality (emphasis added).
Again, they might say it’s discrimination on the basis of religious belief (or ‘preferencing’, to use their term), but it’s clear that in practice LGBT students and teachers will be the victims.
Or this exchange with Mrs Moira Deeming, Researcher, Church and Nation Committee, Presbyterian Church of Victoria:
Mrs Deeming: There are gay Christians and teachers – I am a teacher – who are Christians first and the way that they deal with whatever their sexuality feels like is expressed in a Christian manner. It’s about religious freedom and it’s about religious association. It’s not about finding out if someone is gay and cutting them out. It’s about working out: are you like minded with us? If you are like minded, join with us. Then there shouldn’t be an issue.
Senator Bragg: That wasn’t my question, but I know I am out of time. On notice, can you come back with exactly what your position is because, frankly, it’s a bit murky.
Mrs Deeming: Would you mind restating your question clearly just one more time?
Senator Bragg: The question is: do you want to be able to discriminate based on sexual orientation or preference in the hiring of your staff?
Mrs Deeming: That’s a corollary to preferencing based on religious belief. We’re not targeting anybody- (emphasis added)
All three witnesses appear to be saying: we reserve the right to discriminate against LGBT people, we’ll just call it discrimination on the basis of religious belief.
Which is exactly what Citipointe Christian College was trying to do with its contract. Fortunately, that was unlawful because of the much stronger anti-discrimination laws in Queensland.
But, discrimination protections for students and teachers under the Religious Discrimination Bill are much, much weaker, because of the excessive and extreme exceptions provided to religious organisations under this legislation, allowing them to lawfully discriminate.
As a result, there will be plenty more Citipointes around the country in future. And that’s not ‘murky’, it’s perfectly clear.
2. Workers from minority faiths are left unprotected by the Bill
The excessive and extreme religious exceptions contained in the Religious Discrimination Bill 2021 don’t just affect LGBT people.
In fact, one of the groups who stand to lose the most are workers from minority faiths. This is because large, usually-Christian, publicly-funded service delivery organisations – including hospitals, aged care facilities, accommodation providers and disability service providers – will be able to lawfully discriminate on the basis of religious belief in employment.
That means hiring (and firing), and providing (or denying) training, promotion, and other benefits, on the basis of faith rather than ability. Workers who are Muslim, Jewish, Hindu, Buddhist, agnostic and atheist can be treated less favourably than Christians, just because of who they are.
But don’t take my word for it. Here’s Mr Surinder Jain, National Vice President of the Hindu Council of Australia, explaining the Bill’s impact on his community:
‘We have a lot of Hindus who work in aged-care services and disability services, predominantly being run by religious organisations. We have doctors working in private hospitals. We have IT people. Their jobs would be questionable. There is another category of people who are new migrants, who come here and who are desperately looking for a job and they find a job in a religious organisation. There is unsaid pressure on them that they should adapt to the religion of the organisation that they are in. This way the religious freedom [Bill] would actually be taking away their freedom of ideology and religion in declaring their faith and practising their faith and in not being pressured into adopting another faith.’
In short, the Religious Discrimination Bill privileges larger faiths at the expense of smaller ones, and especially employees of the latter.
3.A ‘mask off’ moment revealed what the statement of belief provision is really about
Through much of the hearings, and especially during the appearance by the Attorney-General’s Department on the Friday afternoon, defenders of the Bill attempted to downplay the impact of the unprecedented statement of belief override of all other Commonwealth, state and territory anti-discrimination laws that protects religiously-motivated comments that offend, humiliate, insult and ridicule others.
They tried to make it seem like it was all very reasonable, rather than an extraordinary legal privilege to allow people to make demeaning and derogatory comments about women, LGBT people, people with disability and people of minority faiths in all areas of public life.
Well, not all of them – one witness on the Thursday afternoon let the ‘reasonable’ mask slip, confirming the statement of belief provision will provide a platform for transphobia: Mrs Moira Deeming, Researcher, Church and Nation Committee of the Presbyterian Church of Victoria.
I’ll reproduce the relevant part of the transcript below, but for context, remember that Greens Senator Janet Rice’s late wife was a trans woman:
Senator Janet Rice (Greens): We’re talking about, particularly, clauses 11 and 12 of this bill and, particularly, the statements of belief. The Australian Human Rights Commission say that statements of belief that will be legal under this legislation, which will override state and territory legislation, are currently considered discrimination, and they will no longer be considered discrimination.
Mrs Deeming: Multipartisan support – let’s get a controversial statement. ‘Trans women are men’. Would you consider that, in and of itself, a discriminatory statement that should never be uttered?
Senator Rice: If that were being stated in a workplace to a trans woman, absolutely.
Senator Rice: Do you believe that’s not discrimination?
Mrs Deeming: I just think it’s a statement of belief, and I don’t think it’s necessarily a religious belief.
Senator Rice: And, if it’s offensive to that trans woman, you that it’s acceptable?
Mrs Deeming: I think-
Senator Rice: It’s deeply offensive and potentially causing that trans woman to have severe mental health illness… to not be accepted in their gender identity.
Chair: Senator Rice, I’m just going to ask you to pause here.
Senator Louise Pratt (ALP): But, in the same workplace, someone won’t have the right to call the person who said that a bigot.
Chair: Senator Pratt, I’m just going to ask you to pause as well. Senator Rice has put a question to Mrs Deeming. Mrs Deeming, please answer the question. I don’t want any witness being interrupted, please.
Mrs Deeming: I pose that question because it’s obviously the most controversial one at the moment. It’s not specifically a religious view that biological sex cannot be altered. It’s not. There are many, many people – lesbians, in fact, and homosexual men and people from across the political spectrum, people in every single party here – that would agree with the statement that trans women are, by definition, male. They wouldn’t be making it on the basis of hate. What I’m interested her is finding out whether you’re going to try and take statements like that and class them as inherently harmful, where no offence was intended. It’s just a difference of belief. It’s a belief we don’t subscribe to.
Senator Rice: A difference of belief?… In that sort of instance, in a workplace, if that statement has been given to a young person who is attempting to affirm their gender, it leads to severe mental unwellness and severe impact on them – not being able to affirm their gender. It leads to suicidal ideation. It leads to potential suicide. That is the reality for trans and gender diverse people. So I put it to you that that is, in and of itself, a discriminatory and hateful statement if it is being made to those people.
Mrs Deeming: And I put it to you that it is psychologically abusive to coerce students and other people to say things that they do not believe, especially about the nature of biological-
*****
There’s a lot to take in there obviously, but some things stand out:
Deeming pro-actively chose to raise the statement ‘trans women are men’ – during an exchange with a Senator whose late wife was a trans woman
She argued that it’s ‘just a statement of belief’, and therefore should be legally protected
She did not agree with Rice’s comments about the harm caused by such statements to trans and gender diverse people
Instead, Deeming claimed it is ‘psychologically abusive’ to require students and other people to effectively treat trans and gender diverse people with respect.
In this exchange, Deeming confirmed that the statement of belief provision is not about providing protection for people who simply state ‘marriage is between a man and a woman’ – it is instead really about allowing people to make deeply transphobic comments to others, even to fellow employees in the workplace who are simply trying to do their job.
4. ‘The limit does not exist’ to the religious freedom agenda
There was another development over the course of the hearings which reveals a helluva lot about the ever-growing demands of the ‘religious freedom’ movement – and how it will continue to strip away the rights of others, with little care for the consequences it creates.
This relates to proposals to redraft clause 12 of the Bill – which is the ‘statement of belief’ provision – ostensibly to ensure it is constitutional. These changes were put forward by Professor Nicholas Aroney, who had previously served as a member of the Ruddock Religious Freedom Review (which helped to create the mess we are now in).
Anyway, from Mr Aroney’s submission to the Committee:
‘To maintain this policy objective while addressing any doubts about the effectiveness of clause 12 under section 109 of the Constitution it would be sufficient to amend the clause so that it reads:
(1) A statement of belief, in and of itself, does not constitute discrimination for the purposes of this Act.
(2) Notwithstanding any of the following State of Territory laws, it is not unlawful to make a statement of belief, in and of itself:’
The redrafted amendment then lists all four of the Commonwealth anti-discrimination Acts (Racial, Sex, Disability and Age), and each of the primary state and territory anti-discrimination laws (such as the NSW Anti-Discrimination Act 1977).
Now, I am not a constitutional lawyer, so I can’t tell you whether it has made the provision more, or less, constitutional.
However, I am an expert on the Religious Discrimination Bill and I can tell you that with this drafting Mr Aroney has made sure the ‘statement of belief’ clause would explicitly override section 18C of the Racial Discrimination Act 1975 (Cth).
As well as all state and territory anti-vilification provisions found in their primary Acts (like the prohibitions on racial, homosexual, transgender and HIV/AIDS vilification in the NSW Anti-Discrimination Act 1977).
This is because his version of clause 12 overrides all parts of these laws (by using the general phrase ‘it is not unlawful’), whereas even the current version of the Religious Discrimination Bill applies to discrimination only (it uses the phrase ‘does not constitute discrimination’ instead).
I can’t speak for Mr Aroney, so I don’t know whether this drafting is deliberate – and he meant to ensure religiously-motivated comments that breach laws like s18C should be protected – or whether it is simply careless.
But even if it was the latter, I think it is symptomatic of the overall ‘religious freedom’ agenda – and that is it is only ever concerned with securing more, and more, and more, rights for religious fundamentalists, like the right to be a bigot towards women, LGBT people, people with disability and people of minority faiths.
And rarely, if ever, do religious freedom advocates bother to step back to consider what is being stripped away from other groups in society. Such as, in this instance, racial minorities.
My view is reinforced by the fact, on Thursday 20 January, multiple witnesses, from a variety of different religious organisations, were asked whether they supported Mr Aroney’s changes. Those that offered their support for his drafting include:
Mr John Steenhof, Principal Lawyer, Human Rights Law Alliance
Mr Mark Sneddon, Executive Director, Institute for Civil Society
Professor Patrick Parkinson, Director, Freedom for Faith
Right Reverend Dr Michael Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney
Reverend Christopher Duke, Convener, Church and Nation Committee, Presbyterian Church of Victoria
Pastor Michael Worker, General Secretary and Director, Public Affairs and Religious Liberty, Seventh-day Adventist Church in Australia, and
Pastor Mark Llewellyn Edwards, Australian Christian Churches.
Again, I have no idea if they each consciously support overriding s18C of the Racial Discrimination Act 1975 (Cth), and other state and territory anti-vilification laws. But they absolutely supported amendments that have this practical effect. And at the very least it seems nobody even stopped to think about who was going to lose out as a result.
That is the insatiable religious freedom agenda in action. And you had best believe that, even if the Religious Discrimination Bill is passed, it will not stop eating away at the rights of others to live their lives free from discrimination.
5. Government Senators still haven’t grasped the full dangers of the Religious Discrimination Bill
It is fair to describe the Religious Discrimination Bills as complex, particularly because it contains a number of unique provisions that do things no other Australian anti-discrimination law has ever done before (like clauses 11 and 12, which specifically override, and undermine, anti-discrimination protections in other jurisdictions).
Nevertheless, it was disheartening when, on the final afternoon of two Senate hearings – which followed another three days of hearings into the Bill by the Joint Committee on Human Rights – the Chair of the Committee (Senator Sarah Henderson), was involved in the following exchanges, demonstrating she still hadn’t fully understood one of the Bill’s main problems:
Chair: Do you have to believe that it’s part of the doctrines and tenets of that religion? There has got to be a factual basis for that. You can’t just subjectively believe that.
Mr Walter [from the Attorney-General’s Department]: It’s a test of whether the individual believes it or not…
…
Chair: Does it have to be genuinely held in relation to you’ve got to factually be able to demonstrate that what you hold as your genuine belief reflect the doctrines and tenets of that religion? Your so-called relationship with God can’t be separated from, or not connected with, the doctrines and tenets of that religion. In other words, you can’t just make something up.
Senator Rice: You can. If you genuinely believe that your religion says so, you can.
Chair: That’s what I’m seeking to clarify. There’s been a genuine concern that many have expressed during these two days of hearings.
Mr Walter: Yes. What it doesn’t do is it doesn’t apply an objective text of saying, for example, ‘I believe X’…
…
Chair: Just to give you an example, could someone who is pro-euthanasia and has made some comments in relation to that issue genuinely consider that such a position is in accordance with the doctrines and tenets of Catholicism, for instance? The concern is that when you start to rely on the individual’s-
Senator Rice: It’s how it’s drafted.
Chair: genuine belief, which might not be connected in any way with the doctrine or tenet of that particular religion, isn’t there an issue with an objective test not applying?
Mr Walter: In that particular example, in theory, yes. However, that person needs to establish that they genuinely believe that. You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways-
Chair: Surely that doesn’t make sense, because that’s not consistent with the Catholic doctrine. How can they genuinely believe that that’s part of a tenet of that faith when it clearly, on its face, does not accord with the doctrines or tenets of Catholicism? How could that-
Senator O’Neill (ALP): That’s before we get to the religions that are new and don’t have such a body of evidence.
Senator Rice: Exactly.
Chair: That’s what makes this very complicated. Is there not a difficulty because there’s not an objective text; it’s a subjective test?
*****
At the very end, Senator Henderson was finally at least starting to ask the right question – because yes, there is a massive difficulty in that the definition of statement of belief is entirely subjective (with clause 5 of the Bill stating that only the person making the statement needs to ‘genuinely consider’ it to be in accordance with the religion).
That’s why this provision will protect an almost unlimited array of fringe beliefs – including white supremacist speech, as long as the person making it ‘genuinely considers’ it relates to their particularly-warped views of Christianity. It would not matter if every single church in Australia disagreed with them.
And the Attorney-General’s Department’s response – You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways – only makes things worse.
Apparently, if you can show you’ve made white supremacist comments, dressed up as religious belief, many times before, then it makes it more likely your comments will be protected from discrimination claims under Commonwealth, state and territory law.
The statement of belief provision is a mess. The whole Religious Discrimination Bill is a mess. And it must be rejected.
Conclusion
The above are just five of the issues which arose during the two days of hearings by the Senate Legal and Constitutional Affairs Committee into the Religious Discrimination Bill. There were many more I could have chosen to highlight here.
Despite this, based on media reports this morning, it seems likely that both Liberal and Labor Senators will recommend that the legislation be passed.
Which gives us just a matter of days to help stop this extreme, radical and unprecedented assault on the human rights of everyday Australians.
The Religious Discrimination Bill might have been introduced by PM Scott Morrison, but it is just as big a test for Opposition Leader Anthony Albanese: will he support legislation that takes away rights from women, LGBT people, people with disability and people from minority faiths?
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[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]
Anthony Albanese became Leader of the Australian Labor Party in May 2019. It’s now March 2021, and we still don’t know where he stands on key issues affecting the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.
In his 22 months as Opposition Leader, Mr Albanese (commonly referred to as ‘Albo’), has only explicitly referred to LGBTIQ rights once in Parliament. On 2 July 2019, he made the following statement:
‘In an article in the NewDaily and in a number of other articles reporting on that article, it’s been suggested that I supported watering down Labor’s commitment to LGBTIQ rights. As someone who in their first speech in parliament mentioned removing discrimination on the basis of sexuality and is a strong advocate for the rights of gay and lesbian people, that is not true; it did not happen.’
Despite this, and unfortunately for LGBTIQ Australians, that article foretold what appears to have occurred in the period since.
As happens every term, the Labor Party is engaged in updating its National Platform, the document setting out its core principles.
As part of this process, Albo has expressed a clear desire for the Platform to be streamlined. The current draft, which will be considered at an online Special Platform Conference on 30 and 31 March 2021, stands at 111 pages – compared to 268 pages of policy detail in former Leader Bill Shorten’s 2018 version.
Based on that level of reduction, you might expect that LGBTIQ policy commitments would have decreased by a similar ratio (to be two-fifths of the previous document).
However, the axe seems to have fallen disproportionately on issues affecting our communities. From 46 separate mentions of LGBTIQ issues in 2018, there are just nine in the 2021 draft Platform.
Admittedly, that is a somewhat superficial criterion. Nevertheless, looking at the substantive policy commitments in closer detail, and the cuts are just as bad. Worse, in fact, with Labor’s Platform now missing in action on some of the most important challenges we face.
That includes what I consider to be the worst human rights abuses affecting any part of the LGBTIQ community today: coercive medical interventions, including surgeries, on children born with intersex variations of sex characteristics.
The 2015 and 2018 ALP Platforms included clear commitments to address these abuses. From the 2018 version:
‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’
In contrast, the draft 2021 ALP National Platform is completely silent on this issue. That is simply not good enough.
Another important policy commitment from 2015 and 2018 that has disappeared relates to the out-of-pocket costs which far-too-frequently prevent trans and gender diverse people from being able to access gender-affirming health care. Again, from the 2018 Platform:
‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Cost should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’
In 2021, Labor has so far found no room in its core principles document to address one of the biggest challenges affecting the everyday lives of trans and non-binary Australians.
A third major omission from the draft Platform is HIV – and that omission is total. If passed in its current state, the 2021 Australian Labor Party Platform would be the first in at least a generation not to even mention the term HIV.
I would argue the middle of a global pandemic is possibly the worst time to abandon commitments relating to another epidemic that, despite popular misconceptions, remains far from over. Instead, I believe the Platform should (at a minimum):
Highlight that lessons learned from HIV have assisted Australia in dealing with COVID-19
Emphasise the fundamental importance of working in partnership with affected communities, including people living with HIV and those at risk, and
Recommitting to ending the HIV epidemic in Australia, and globally.
The fourth and final major problem I would like to focus on is the lack of clarity around much-needed improvements to LGBTIQ anti-discrimination and anti-vilification protections. On this issue at least the draft 2021 Platform includes some detail:
‘Labor will work closely with LGBTIQ Australians to develop policy to:
(a) ensure they enjoy equality before the law and have access to public services without discrimination; [and]
(b) strengthen laws and expand initiatives against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status’.
However, these commitments do not go nearly far enough. It is possible (although by no means certain) that para (a), above, means Labor will remove anti-discrimination exceptions which allow religious schools to discriminate against students on the basis of sexual orientation and gender identity. But there is no equivalent commitment to protect the employees of religious organisations, including teachers and other staff in religious schools.
As with the other three areas identified earlier, these anti-discrimination principles are also a significant step backwards from their 2015 and 2018 equivalents. There is no longer a commitment to introduce a stand-alone Commissioner for LGBTIQ issues within the Australian Human Rights Commission.
Nor is there a policy to introduce long-overdue LGBTIQ anti-vilification protections in Commonwealth law (despite the draft 2021 Platform twice committing to address religious vilification). Or a commitment to finally include gender identity and sex characteristics as protected attributes in the Fair Work Act 2009 (Cth) on the same basis as sexual orientation.
There are plenty of other problems with the draft Platform – perhaps most notably a policy to ensure schools are ‘welcoming and supportive environments for all’ which has removed previous explicit references to gender identity and sexuality, and added a qualifier (‘initiatives… as selected by schools’), thus rendering it close to meaningless.
Nevertheless, if the ALP wishes to demonstrate it is still committed to improving the rights of LGBTIQ Australians then I suggest the four main issues described above (ending coercive surgeries on intersex children; reducing out-of-pocket costs for gender-affirming health care; including policies addressing HIV; and improving commitments to LGBTIQ anti-discrimination and anti-vilification laws) would be a good place to start.
The defence of the Australian Labor Party to these criticisms has been to reiterate that the draft 2021 National Platform is intentionally a high-level, principles-based document, and to explain that more-specific LGBTIQ policies will be released closer to the election.
The problem with that defence, from my perspective, is that the clear message the ALP sent to all stakeholders back in 2019 was that all policies were under review, that in effect ‘everything is up for grabs’. Since then, as far as I can ascertain, there have been exactly zero policy announcements explicitly relating to LGBTIQ issues.
At the same time, the rights of LGBTIQ Australians have come under sustained attack at both Commonwealth level (including through the proposed Religious Discrimination Bill which Labor has not, to date, unequivocally opposed) and in the states and territories (including Mark Latham’s own ‘Religious Freedom’, and anti-trans kids, Bills in NSW).
In this context, it is only natural for the LGBTIQ community to closely examine the words and actions coming from the Leader of the Opposition and the Party he represents. So far, the only substantive document which we can scrutinise is the draft Platform and, particularly when compared to its 2015 and 2018 iterations, it is a disappointment.
The good news is that its deficiencies can still be fixed. The Special Platform Conference is not for another nine days, and the Leader of the Opposition, Shadow Ministers and conference delegates all have the opportunity to reinsert genuine commitments around intersex surgeries, trans health costs, HIV, and anti-discrimination and anti-vilification laws.
The bad news is that, more broadly, time is running out. We are nearly two years into a three-year term. Indeed, Prime Minister Morrison has the option of holding the next election as early as August, just five months away. There is little time left for Albo and the ALP to show us where they stand on key issues affecting the LGBTIQ community.
And I use that phrase deliberately – show us your current policies, don’t tell us about your past public positions.
Which brings me back to Albanese’s statement to Parliament in July 2019. It is interesting that, in defending his approach to LGBTIQ rights as Leader, he directly referred to his first speech which he gave on 6 May 1996.
To be fair, Albo’s comments then (‘The bigots who criticise programs aimed at the special needs of sections of our community ignore the fact that there is not equality of opportunity across class, gender, sexual preference and ethnicity’) were undoubtedly progressive for the time.
But times change. As does terminology (thankfully), as well as the needs of the LGBTIQ community which are much more complex and diverse than a general commitment to ‘equality of opportunity’.
Frankly, I am far less interested in what Anthony Albanese said as a new backbencher 25 years ago than I am in what he has to offer the country as its alternative Prime Minister for the next three years.
From my position as an advocate for LGBTIQ rights, I believe it’s time for Albanese to outline what a Government he leads would do for our community. Clearly, and in detail.
It’s time for him to answer the question ‘What for art thou Albo?’ Because, as of today, I and other LGBTIQ Australians genuinely don’t know.
Caption: It’s great that Albo is a regular participant in the Sydney Gay & Lesbian Mardi Gras Parade, including this year’s event (pictured). It would be even better if he could articulate, clearly and in detail, what he will do for LGBTIQ Australians if he becomes our Prime Minister for the next three years.
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Submission re 2020 ALP National Platform – Consultation Draft
I am writing to provide my individual feedback on the 2020 ALP National Platform, as released for public consultation.
I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, and as someone who was responsible for providing wording on multiple policy issues which were included in the 2015 National Platform (many of which were retained in the 2018 National Platform, although most have subsequently been excluded from the current version).
I acknowledge the intent of the Consultation Draft: ‘A Platform of this kind would be much more significant and carry much more weight. But it also needed to be much shorter’ [emphasis added]. This is reflected in the abbreviated document released this year: at 96 pages, it is just over one-third the length of the 2018 version (which was 268 pages, plus the Party’s constitution).
However, Labor’s LGBTIQ policy commitments have been reduced by much more than this ratio. Indeed, it would not be an exaggeration to say that the LGBTIQ content of the 2018 National Platform has been gutted in the 2020 Consultation Draft.
At a simplistic level, this can be seen in the decline in usage of the term LGBTIQ itself: from 45 times in the 2018 National Platform, to just six times in the 2020 consultation draft. This is a massively disproportionate reduction.
But this decline is much more than just the use of fewer words. This reduction represents large, and substantive, cuts to the ALP’s policy commitments to achieving LGBTIQ equality. The LGBTIQ community should be alert and alarmed about the potential for the Labor Party to walk away from its previous policies to improve the lives of LGBTIQ Australians.
In this submission, I will start by focusing on four particular, and particularly-important, issues (three where previous commitments have been abolished entirely, and one where the proposed commitments are seriously inadequate) before providing comments on the specific chapters of the Consultation Draft, as well as the statements in detail.
Ending Coercive Medical Interventions on Intersex Children
In my view, the most egregious human rights abuses against LGBTIQ people in Australia are the ongoing coercive medical interventions, including surgical and hormonal interventions, to alter the sex characteristics of children born with intersex variations.[i]
For this reason, the inclusion of this commitment, on para 75 on page 144 of the 2018 National Platform, was welcome:
‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’
Conversely, the removal of this policy, and the total absence of any equivalent commitment to preventing involuntary medical treatments on intersex kids in the 2020 Consultation Draft, are deeply worrying.
I strongly urge the National Policy Forum, and ALP generally, to recommit to ending these abhorrent and harmful practices, by including the following statement (as proposed by leading intersex advocate Morgan Carpenter):
Recommendation 1.
‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons’ right not to undergo sex ‘normalisation’ treatment. Labor commits to supporting the development and implementation with community participation of human rights-affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’
2. Removing out-of-pocket costs for trans and gender diverse healthcare
Another significant issue for Australia’s LGBTIQ community where the 2020 Consultation Draft represents a backwards step compared to the 2018 National Platform is removing out-of-pocket costs for trans and gender diverse healthcare. Paragraph 74 on page 144 of the 2018 document previously provided that:
‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Costs should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’
Once again, there is no equivalent commitment in the 2020 Consultation Draft. Instead of axing this policy, I believe the Labor Party should be strengthening its commitment, by including a modified version of the above paragraph:
Recommendation 2.
‘Labor supports the rights of trans and gender diverse people to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming treatment, including surgery. Costs should not be a barrier to accessing these services. Labor commits to overcoming these barriers by removing out-of-pocket costs for trans and gender diverse healthcare.’[ii]
3. Restate commitment to ending the HIV epidemic
Perhaps the most surprising omission in the 2020 Consultation Draft is the complete exclusion of any and all references to HIV, likely for the first time in decades. In the midst of the coronavirus pandemic, it seems strange to remove commitments to addressing the HIV epidemic, especially when lessons from our best practice approach to HIV are valuable in responding to COVID-19 – and, above all, when the HIV epidemic is ongoing.
I note that paragraphs 103 and 104 on page 150 of the 2018 National Platform included the following:
‘Labor has a proud record in HIV policy. Bipartisan national leadership in partnership with affected communities and other organisations, clinicians and researchers has prevented a generalised epidemic.
‘HIV notifications, however, remain too high. Labor is especially concerned that HIV notifications have steadily increased among Aboriginal and Torres Strait Islanders and are now double the rate of other Australians. Notwithstanding these challenges, Australia has an unprecedented opportunity to end HIV transmission. Labor commits to the United Nations Political Declaration on HIV and AIDS, which provides the global framework for action on HIV, including through the UNAIDS Fast-Track 95-95-95 targets to end the HIV epidemic. Labor’s commitment to making HIV history will include restoring the capacity that the Liberals have cut from HIV peak organisations; funding new efforts to promote HIV prevention, testing, and treatment in ‘hidden populations’; and ensuring affordable access to pre-exposure prophylaxis (PrEP) via the PBS.’
Recommendation 3.
The National Policy Forum should restate the ALP’s commitment to ending the HIV epidemic, and consult with the Australian Federation of AIDS Organisations (AFAO), National Association of People with HIV Australia (NAPWHA), and leading HIV advocates and experts, on what specific policy proposals are required to achieve this in the 2020s.
One area where the ALP’s commitments have not been completely removed (although some have nevertheless been excised) – but where the 2020 Consultation Draft remains highly deficient – is the issue of LGBTI anti-discrimination law reform.
Paragraph 30(b) on page 53 includes the following, general and very high-level statement: ‘Labor will work closely with LGBTIQ Australians to develop policy to… strengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status.’
While obviously welcome, the lack of specificity in this paragraph means it is unclear what position a future Labor Government would take on a range of important measures that fall within this over-arching statement, including:
Protecting LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
Protecting LGBT employees and people accessing services in relation to other religious organisations delivering public services like healthcare, housing and accommodation, and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
Updating terminology in anti-discrimination legislation, including replacing the protected attribute of intersex status with ‘sex characteristics’, as advocated by Intersex Human Rights Australia and in the March 2017 Darlington Statement
Introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, on an equivalent basis to existing racial vilification prohibitions in the Racial Discrimination Act 1975 (Cth) (with the necessity of this reform highlighted by the homophobia, biphobia, transphobia and intersexphobia whipped up by the Liberal/National Government’s unnecessary, wasteful and harmful 2017 same-sex marriage postal survey),[iii] and
Appointing an LGBTIQ Commissioner within the Australian Human Rights Commission (noting that paragraph 90 on pages 213-214 of the 2018 National Platform included a commitment that: ‘Labor will… [e]stablish under the Australian Human Rights [Commission] Act 1986 a new Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, to work across government and the private sector to reduce discrimination’).[iv]
Another LGBTI discrimination-related issues which is not addressed in the 2020 Consultation Draft is the fact neither gender identity nor sex characteristics are explicitly included as protected attributes in the Fair Work Act 2009 (Cth), leaving trans, gender diverse and intersex employees with uncertain workplace rights, including unclear protections against adverse action and unlawful termination.[v]
Perhaps most concerningly, at least in the short term, the 2020 Consultation Draft does not express a position on the Commonwealth Government’s proposed Religious Discrimination Bill, legislation that would significantly undermine the rights of lesbian, gay, bisexual, transgender, intersex and queer Australians to engage in public life without fear of discrimination.
I strongly urge the National Policy Forum to take a stand on this issue, and in particular to commit to only supporting anti-discrimination laws covering religious belief and activity where they do not undermine the rights of others, including women, LGBTIQ people, people with disability, single parents, divorced people and even people of minority faiths.[vi]
Recommendation 4.
‘Labor will work closely with LGBTIQ Australians to develop policy to strengthen laws and expand programs against discrimination, harassment and vilification on the basis of sexual orientation, gender identity, sex characteristics and queer status, including by:
Amending the Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth) and related laws to:
Protect LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
Protect LGBT employees and people accessing services against discrimination by religious organisations delivering public services including healthcare, housing and accommodation and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
Update the protected attribute of intersex status to sex characteristics
Introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics, and
Appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.
Amending the Fair Work Act 2009 (Cth), to explicitly include gender identity and sex characteristics as protected attributes, including for the purposes of adverse action and unlawful termination provisions.
Only supporting the introduction of Commonwealth anti-discrimination legislation covering religious belief and activity where it does not undermine the rights of women, LGBTIQ people, people with disability, single parents, divorced people, people of minority faiths and others to live their lives free from discrimination.
**********
I will now provide specific comments in relation to the individual Chapters of the Consultation Draft (where relevant), as well as the Statements in Detail.
Chapter 1: Building Australia’s Prosperity
No comments.
Chapter 2: Developing Our People
On page 22, at paragraph 8, the sentence ‘Labor will continue to support policies that aim to remove remaining barriers, including those based on gender, age, race, ethnicity, sexuality or disability status’, should be amended to also include gender identity and sex characteristics.
On page 23, at paragraph 19, I note this would be an appropriate place to include the commitment to explicitly protect gender identity and sex characteristics in the Fair Work Act 2009 (Cth) (as outlined as part of recommendation 4, above).
I also suggest the National Policy Forum include a commitment here that the ALP will work with trans and gender diverse communities to introduce workplace entitlements to paid transition leave, to help support increased participation by trans and gender diverse Australians in the workforce.
On page 29, at paragraph 63, I note the detailed commitments around the national curriculum no longer include the following policy from page 150, paragraph 109 of the 2018 National Platform:
‘Labor will ensure sex education includes all sexualities and gender identities. Labor will ensure the sex education curriculum is kept up-to-date and reviewed regularly by both non-government organisations and experts working in LGBTI health.’
I urge the National Policy Forum to reinstate a commitment to ensuring the national curriculum, including the health and physical education curriculum, is inclusive of LGBTI students and has content relevant to their needs.
Chapter 3: Climate Change, Energy and the Environment
No comments.
Chapter 4: A Strong and Healthy Society
On page 42, after paragraph 21, I note this would be an appropriate place to include a restated commitment to ending the HIV epidemic, and associated policy proposals as agreed with AFAO, NAPWHA and others (as detailed at Recommendation 3, above).
Chapter 4 would also be an appropriate location for a strengthened policy to remove out-of-pocket costs for trans and gender diverse healthcare (as outlined at Recommendation 2).
Finally, I note the 2018 National Platform included a commitment to ‘develop a national LGBTIQ health plan, to [among other things] address the particular health needs of LGBTIQ people, working in partnership with these communities and LGBTI health bodies.’
I believe the National Policy Forum should reinstate this commitment, given ongoing health issues across the LGBTIQ community, including in relation to mental health.
Chapter 5: An Equal and Inclusive Nation
I note the section ‘Equal rights for LGBTIQ Australians’ would be an appropriate place for the contents of Recommendation 4 described above to be included (and in particular replacing paragraph 30(b) on page 53).
I further note the LGBTIQ health-related commitments in paragraph 30(c) are not a substitute for a national LGBTIQ health plan (mentioned in relation to the previous chapter), while policies to support national intersex-led organisations in paragraph 30(d) do not obviate the need for specific policies to end involuntary medical interventions on intersex children (as called for in Recommendation 1 of this submission).
In terms of paragraph 30(e), and its commitments in relation to trans and gender diverse identity documentation, I note major problems still exist at state and territory level, and especially in NSW, Queensland and Western Australia.[vii]
The National Policy Forum should be urging Labor Governments in Queensland and Western Australia to urgently amend their respective births, deaths and marriages laws to allow trans and gender diverse people to update their identity documents on the basis of self-identification, without the need for surgery or other medical approval or ‘gate-keeping’.
Similarly, the NSW Labor Opposition should be encouraged to support equivalent reforms there – and, if the NSW Liberal/National Government does not progress these changes, for Labor to introduce them in the first 100 days of any incoming administration.
I have two particular concerns about paragraph 31 on page 53, which currently reads:
‘Labor will ensure schools are welcoming and supportive environments for all students and teachers, regardless of their gender identity and sexuality. We will support programs that promote understanding, tolerance and respect for every student.’
First, this commitment could be strengthened to provide absolute certainty that it applies to all schools: government, private and/or religious.
Second, the commitment in the second sentence is a significantly watered-down version of the position in the 2018 National Platform (paragraph 60 on page 119):
‘Schools must be safe environments for students to learn and for teachers to teach – including same sex attracted, intersex and gender diverse students and teachers. Labor will continue working with teachers, students and schools to stop bullying and discrimination, ensuring a safe place for LGBTI students to learn by properly resourcing inclusion and anti-bullying programs and resources for teachers. Labor will continue to support national programs to address homophobia, biphobia, transphobia and anti-intersex prejudice in schools. This includes ensuring gender diverse students are able to express the gender they identify with.’
I believe the 2020 version, and its absence of specific support for targeted programs addressing homophobia, biphobia, transphobia and intersexphobia, underestimates the prevalence of such discrimination, and the harms that continue to be caused to LGBTI students.
Recommendation 5.
Paragraph 31 on page 53 be replaced with the following:
‘Labor will ensure all schools are welcoming and supportive environments for all students, teachers and other staff, regardless of their sexual orientation, gender identity and sex characteristics. We will support programs that promote understanding, acceptance and respect for every student, including programs to specifically address homophobia, biphobia, transphobia and intersexphobia.’
In my view, paragraph 32 on page 54, is also deeply flawed, this time for three reasons. First, as survivors have consistently advocated, bans on ‘reparative’ or conversion practices must be exactly that – aimed at practices, rather than the much more limited, and potentially only health-related, ‘therapies’.
Second, it must capture both sexual orientation and gender identity conversion practices (rather than just ‘gay conversion’).
Third, I am concerned that the wording ‘will work with advocates to ensure people are not coerced into undergoing such therapies’ potentially misses the point – it is not just ‘coercion’ that is the problem, it is the practice itself. Policies in this area should be aimed at banning sexual orientation and gender identity-change practices broadly, not just ‘coercion’ into undergoing these practices.
Recommendation 6.
The National Policy Forum consult with survivors of conversion practices in relation to the commitments in paragraph 32 on page 54, and in particular to ensure that:
-It applies to conversion practices (and not just therapies)
-It includes both sexual orientation and gender identity conversion practices, and
-It bans the practices themselves, rather than preventing ‘coercion’ into undergoing such practices.
I am also concerned at the wording on paragraph 33 on page 54, which is an abbreviated form of the commitment at paragraph 105 on page 233 of the 2018 National Platform. In particular, in my view the abbreviation has omitted the more important part of that policy, namely:
‘Labor will work first with our Pacific neighbours, our Indo-Pacific region and the nations of the Commonwealth to encourage the repeal of discriminatory laws, especially criminal laws against homosexual sexual conduct and most urgently against such laws where they impose the death penalty, and will encourage steps to implement the actions required by the Yogyakarta Principles. Labor will work strategically to support and assist both local and international civil society organisations in promoting LGBTIQ human rights.’
I encourage the National Policy Forum to amend the abbreviated commitment in the Consultation Draft to capture these elements, and especially supporting the push for decriminalisation in the Pacific, Indo-Pacific and Commonwealth.
My final comment in relation to the section ‘Equal rights for LGBTIQ Australians’ on pages 53 and 54 is to highlight that it does not include support for any formal mechanisms to consult with, and represent the interests of, LGBTIQ communities. For example, the National Policy Forum should consider expressing support for both:
A Commonwealth Minister for Equality, and
An LGBTIQ Ministerial Advisory Committee, including sub-committees in relation to health, education, justice and other portfolios as required.
I have a further, important comment to make about the section ‘Freedom of thought, conscience and religion’ on page 55 of the 2020 Consultation Draft.
Specifically, paragraph 41 states:
‘Labor believes in and supports the right of all Australians to manifest their religion or beliefs, and the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith. Such rights should be protected by law. Labor recognises that the freedom to have or adopt a religion or belief, or not to have or adopt a religion or belief, is absolute.’
While elements of this commitment are appropriate, the way in which it is worded is dangerous. In particular, the right to manifest religion or beliefs must always be limited by the need to protect the fundamental human rights of others, including the right to be protected against discrimination.
As the International Covenant on Civil and Political Rights itself notes, at Article 18.3:
‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’
This vital nuance is currently missing from paragraph 41. In its absence, people of faith and especially religious organisations would be given a blank cheque to discriminate against others, including LGBTIQ Australians.
Recommendation 7.
Paragraph 41 on page 55 be redrafted such that the right to manifest religion or beliefs is limited by the need to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, including the right to participate in public life free from discrimination.
Chapter 6: Strengthening Australian Democracy
No comments.
Chapter 7: Australia’s Place in the World
On page 68, at paragraph 41, I suggest the inclusion of an additional dot point, to the effect that ‘Labor will ensure Australian international development addresses… the empowerment of people with diverse sexual orientations, gender identities and sex characteristics.’
Statements in Detail
On page 82, under the hearing ‘Public sector industrial relations’, where it says ‘Labor will… [l]ead by example on addressing the ill effects of family and domestic violence by introducing public-sector wide standards of paid leave and other supporting entitlements for workers who are affected by family and domestic violence’, I suggest the inclusion of the following:
‘Labor will lead by example on addressing the disadvantage and exclusion experienced by trans and gender diverse people in the workforce by supporting public-sector wide entitlements to paid transition leave.’
Finally, I express my strong personal support for the retention of explicit commitments in the Statements in Detail in relation to LGBTIQ refugees and people seeking asylum. This includes paragraph 24 on page 93:
‘Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.’
And paragraph 13 on page 95:
‘Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.’
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In conclusion, I acknowledge even this detailed submission is unable to substantively address all of the many LGBTIQ policy commitments that were included in the 2018 National Platform, but which have subsequently been excluded from the 2020 Consultation Draft.
Some of these now-omitted policies covered:
Providing LGBTIQ-inclusive aged care (paragraph 34 on page 110)[viii]
Addressing LGBTIQ housing and homelessness issues (paragraphs 166-167 on page 171,[ix] and paragraph 90, on page 214)
Ensuring LGBTIQ statistics are collected by the Australian Bureau of Statistics (paragraph 85 on page 213)[x]
Establishing a National Gender Centre ‘to provide support and advocacy for transgender Australians, which could have an education and training role to promote awareness about transgender issues to the wider public’ (paragraph 88 at page 213), and
Supporting programs to make sport inclusive for LGBTIQ participants (page 195).
To some extent, it is perhaps inevitable that, by choosing to reduce the length of the Platform from 268 pages to 96, the Australian Labor Party’s 2020 Consultation Draft would include fewer detailed commitments in support of LGBTIQ equality and human rights.
What is not inevitable, however, is that these commitments should be cut in such a disproportionate way, as I have demonstrated through this submission. Or that it now excludes important policies around ending coercive medical interventions on intersex children, removing out-of-pocket costs for trans and gender diverse healthcare, restating a commitment to ending the HIV epidemic, or making much-needed improvements to Commonwealth LGBTI anti-discrimination laws.
I strongly urge the National Policy Forum to consider amending the draft Platform to strengthen the Party’s policy commitments in these four areas, and in other ways suggested in my comments on specific chapters and the statements in detail.
Nevertheless, irrespective of what happens in the redrafting process, or at the National Conference in early 2021, it seems highly likely that the Platform adopted next year will be the first in at least a decade, and perhaps the first in a generation, to include fewer commitments in support of LGBTIQ equality and human rights than its predecessor.
In which case, the onus will be on the Leader of the Opposition Anthony Albanese, Shadow Ministry and Federal Parliamentary Labor Party generally to work with the LGBTIQ community in the lead-up to the next election to make detailed policy commitments outside of the Platform so that urgent community needs are still addressed.
Thank you in advance for taking these comments into consideration. Please do not hesitate to contact me at the details provided should you require additional information.
Sincerely
Alastair Lawrie
Opposition Leader Anthony Albanese is highly likely to release the first ALP National Platform in a generation which contains fewer commitments in support of LGBTIQ equality and human rights than its predecessor.
[iii] Noting that the 2018 National Platform included a commitment to provide effective sanctions against anti-LGBTIQ hate-speech (at paragraph 137, on page 218):
‘When prejudice against LGBTIQ people contributes to harassment by the written or spoken word, such harassment causes actual harm, not simply mere offence, to people who have suffered discrimination and prejudice, and causes particular harm to young same-sex attracted, gender-questioning or intersex people. Labor considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will ensure that anti-discrimination law provides such effective sanctions.’
[viii]‘As they age, LGBTIQ deserve care and support that reflects their diversity. Labor will ensure policies in relation to ageing take into account the needs of people with different sexual orientations, gender identities and sex characteristics by building on Labor’s previous LGBTIQ Ageing and Aged Care Strategy.’
[ix]‘There is a significant connection between homelessness and people being subjected to discrimination and harassment for being same-sex attracted or transgender and specifically understands the discrimination and exclusion affecting transgender people seeking to access support. Accordingly, Labor will work with affected communities to enhance housing support for LGBTIQ Australians.’
‘Labor acknowledges that young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.’
[x] An especially significant omission given the decision of the current Liberal/National Government to not include LGBTI questions as part of the 2021 Census. For more on this topic see Census 2021 – Count Me In.
Finally, the 2020 ALP National Platform – Consultation Draft:
Let’s be honest, when I started this blog almost three years ago, that’s not a headline I ever imagined writing.
And nor is the following sentence – thank you Tony Burke for committing to vote for marriage equality the next time it comes before Federal Parliament.
Mr Burke’s announcement last Sunday (24 May)[i], that his “stance on this issue has developed considerably since the last time we voted on marriage equality” (September 2012), was, to say the least, unexpected.
It is also incredibly useful.
Not just because his vote in the House of Representatives will come in handy later in 2015, when, as seems likely, marriage equality will have its best chance of passage this term.
But also because, as a right-wing MP, and someone who is factionally-aligned with the Joe De Bruyn-led SDA, Mr Burke has demonstrated that even people who have traditionally opposed LGBTI equality can recognise that marriage equality is both a social good, and inevitable.
Indeed, it has been a long journey from voting against an equal age of consent in 2003 when he was a NSW Upper House MP, to supporting the equal right to marriage irrespective of sexual orientation, gender identity or intersex status.
If Mr Burke can make that journey, then so can his factional colleagues. He has set a powerful precedent that people like Senator Joe Bullock should follow.
Nevertheless, the most important part of Mr Burke’s conversion was the statement announcing his change of heart in which he inadvertently makes an excellent case for a binding vote within the ALP.
This is because he makes it very clear that there is no intellectual basis to vote against equality.
First, as marriage equality advocates have argued consistently from the very beginning, Mr Burke acknowledges that changing the marriage law will affect nobody other than the additional people who would be allowed to marry.
From his statement:
“The time has now come for the conversation in communities like mine to move to the fact that this change will occur. We need to get to the next stage of the conversation to explain why those who do not want the change will be unaffected by it” (emphasis added).
“The laws around the care of children have already changed. The laws around the treatment of de-facto relationships have already changed. These all occurred with little fanfare. They delivered a benefit to those who were directly affected and went largely unnoticed by those who might otherwise thought to object.”
And he reiterated that “[t]hose who want to marry will be able to do so. Those who do not want the change will be unaffected by it.”
Second, Mr Burke also made it very clear that the recognition of marriage equality in Commonwealth law would have exactly zero negative impact on religious freedom.
Again, from his statement:
“It is a long time since the law of marriage matched the various religious views of marriage. There are some laws that precisely match principles that are enshrined in religious faith. There are other religious principles such as turning up to a church, mosque, temple or synagogue each week which no one in Australia would remotely suggest should be enshrined in law.”
“The various religious faiths will continue to have their own views and rules around marriage. The law of Australia needs to respect the freedom of people to practice their faith and it will” (emphasis added).
“But the days when the law of Australia can limit access to marriage in ways that are so far removed from the modern community view have long since passed.”
So, according to Mr Burke’s own words:
This reform affects no-one other than lesbian, gay, bisexual, transgender and intersex Australians who are currently prohibited from marrying but, if marriage equality passed, would finally be allowed to do so, and
This reform has absolutely no adverse impact on freedom of religion.
If that is the case, and it should be said I agree with his assessments, then on what possible basis can anyone argue there should be a conscience vote within the Australian Labor Party on this issue, rather than a binding one?
Answer: they can’t.
Perhaps, then, as well as outlining to the citizens of Watson why he supports marriage equality, Tony Burke could also spend time between now and the ALP National Conference in July with some of his factional colleagues “explain[ing] why those who do not want the change will be unaffected by it.”
Tony Burke, an accidental advocate for a binding vote on marriage equality.
At the other end of the ALP’s factional spectrum, another Anthony made his own contribution to the marriage equality debate this week.
On Tuesday, senior Left figure and long-time marriage equality supporter Anthony Albanese made a ‘constituency statement’ to the House of Representatives following the victory for equality in the Irish referendum[ii].
In it, the Member for Grayndler reiterated his personal support for LGBTI equality, by noting that:
“Giving one group of people the rights they have been denied does not, in any way, diminish the rights that currently exist for the rest of us” (emphasis added).
“I fail to see how the institution of marriage is weakened if more people have the right to participate.”
Which, like Mr Burke, is a welcome recognition that marriage equality would not directly affect anyone outside those who would now be able to participate in it (and of course their family and friends who would be able to join them for their celebrations).
If only ‘Albo’ had left it at that.
Instead, he went on to attempt to make the case for a conscience vote within the Australian Labor Party. And in doing so, he made a number of unfortunate errors.
Mr Albanese started by saying that “I strongly believe there should be a vote in this Parliament this year. It should be a conscience vote. That would enable parliamentarians to have a mature debate in both the House of Representatives and the Senate.”
“Whilst I have strong views in support of marriage equality, I respect those who hold a different view. You cannot promote diversity and tolerance whilst not showing tolerance for those who disagree with you” (emphasis added).
Leaving aside his implication that the only way to have a mature debate on an issue in Parliament is through a conscience vote (and if that is the case, I assume he will be moving to make all ALP positions conscience votes in future), Mr Albanese then mischaracterises marriage equality as concerning ‘tolerance and diversity’ rather than something more profound – the fundamental equality of lesbian, gay, bisexual, transgender and intersex Australians.
Perhaps he should have listened to his factional colleague from the neighbouring seat of Sydney, Tanya Plibersek, when, back in April, she framed the issue in this way:
“Labor has always been a party that is opposed to discrimination… It is a clear question. Do we support legal discrimination against one group in this country? Or do we not?”[iii]
Viewed like this, while we can all acknowledge and respect the fact that ALP MPs and Senators have a diversity of views about marriage equality (and that those opposed shouldn’t be chased with pitchforks for holding that opinion), that alone is not sufficient justification to allow individual parliamentarians to actually vote against the legal equality of their fellow citizens on the basis of their sexual orientation, gender identity or intersex status.
Mr Albanese, as a stalwart of the Left, should understand that a very high threshold is required in order to abandon the standard operating procedure of a political party based on solidarity and collective action – and simply invoking the words ‘tolerance and diversity’ in a speech doesn’t even come close to clearing it.
Albo went on in his statement to claim that: “I have argued consistently that the Coalition needs to allow a conscience vote on this issue. It is inconsistent to argue something different within the Labor Party.”
Which many people might think is a reasonable point to make but, upon further analysis, is also not true.
As both Mr Burke, and Mr Albanese in his own speech, have made abundantly clear, the only people directly affected by marriage equality are LGBTI couples.
In that context, it is entirely rational to say that nobody should be compelled to vote against the equality of their fellow citizens. Which is justification to argue that the Liberal Party should move from a bound vote against marriage equality, to allowing their parliamentarians to have a conscience vote on this issue.
But there is no equivalent argument the other way – if legalising marriage equality does not negatively impact on anyone else, including those with strong religious views on the subject, there is no valid reason why an MP or Senator should not be compelled to vote for it.
And, as something that would help achieve legal equality for a marginalised group in society, there is a case for compelling parliamentarians to vote in favour.
Which provides the justification to simultaneously argue for a bound vote in support of marriage equality within the Australian Labor Party – a position that would also be consistent with how the Party approaches 99.9% of issues that come before Parliament.
Therefore, arguing for a conscience vote within the Liberal Party and a bound vote within Labor isn’t ‘inconsistent’ – in fact, it is philosophically sound, because both are in pursuit of fundamental human rights.
Unfortunately, the calibre of Mr Albanese’s argument only goes down from there. From his statement:
“In 2002, as a member of the ALP National Executive, I dealt with a report to resolve the issues surrounding the use of conscience votes in a process which included Labor’s pre-eminent authority on our internal history and processes John Faulkner.”
“There have been conscience votes on a range of issues over the year [sic] including the Family Law Bill 1974, euthanasia in 1996 and the Marriage Bill (1961).”
“The ALP National Executive decided unanimously that “the most appropriate model is the case-by-case, political model, but with consideration and tolerance of other factors relating to religion, the party platform and precedent.””
First, it is pretty brazen of Mr Albanese to name-check my old boss, former Senator John Faulkner, and his involvement in an internal 2002 process which looked at conscience votes within the ALP, thereby potentially encouraging readers to assume he would agree with him on this issue today.
The exact opposite is true – when the question of a conscience vote versus binding vote was debated at the 2011 ALP National Conference, in Albanese’s words “Labor’s pre-eminent authority on our internal history and processes” was one of the most passionate speakers in favour of a bound position.
In his speech, which is accessible on YouTube (and which I highly recommend watching[iv]), Senator Faulkner powerfully argued that “I take the view that a conscience vote on human rights is not conscionable.”
Second, simply citing 20th century examples of ALP conscience votes was not persuasive when then Prime Minister Julia Gillard adopted this tactic at the same Conference[v], and it is equally unpersuasive when used by Mr Albanese now.
How are conscience votes from 54 years ago, and 41 years ago, respectively, particularly relevant when determining what to do on this issue now? After all, marriage has changed enormously from the time Robert Menzies or Gough Whitlam occupied the Lodge.
One example: even in the past two decades, the proportion of people married by civil celebrants has risen from 42.1% in 1993, to 72.5% in 2013[vi]. It is clear that the Australian population has moved on from seeing marriage as a religious institution.
And it is also difficult to see how the ALP’s approach to the Marriage Act in 1961 – which was 14 years before the first Australian jurisdiction even legalised homosexuality – or in 1974 – which was 34 years before the recognition of same-sex de facto relationships in Commonwealth law – have all that much to say about how Labor should approach the question of lesbian, gay, bisexual, transgender and intersex equality today.
But perhaps most pertinently, why did both Prime Minister Gillard and Mr Albanese completely overlook the ALP’s much more recent, and directly relevant, history of a binding vote on marriage equality, from August 2004 (when it supported Howard’s homophobic ban on marriage equality) until December 2011?
The issue of marriage equality didn’t fully emerge on the international stage until the Netherlands became the first country to introduce it in April 2001. In the 14 years since then, the ALP has had no formal position for three years, a binding vote (opposing marriage equality) for seven and a half, and a conscience vote for only three and a half.
This shows that, if we are to look to the ALP’s past for an answer to this ‘dilemma’, there is much more of a precedent for binding on this issue than there is for a conscience vote.
Third, and finally, even applying Mr Albanese’s own test – “the case-by-case, political model, but with consideration and tolerance of other factors relating to religion, the party platform and precedent” – a binding vote in favour clearly passes it.
Politically, the vast majority of the population, Labor voters, the ALP membership and the caucus all support marriage equality, and nearly all of them (us) have long since reached the point of frustration, simply wanting our parliamentarians to ‘just pass the damn thing already’.
A binding vote on this issue would demonstrate to everyone that Labor takes this issue seriously, and will do everything within its own power to ensure it becomes law.
As we have already seen, it also satisfies the ‘religion’ criteria – remembering even Tony Burke argued that “[t]he various religious faiths will continue to have their own views and rules around marriage. The law of Australia needs to respect the freedom of people to practice their faith and it will” (emphasis added).
As for the Party platform – well, we amended that to support marriage equality at the National Conference in 2011, and there does not appear to be any substantive reason for making support for that part of the platform ‘optional’ on the part of MPs and Senators.
And, as described above, a binding vote on marriage equality would be in line with historical precedent, with the ALP having already adopted a bound position from 2004 to 2011.
Does Anthony Albanese’s argument for a conscience vote pass his own test? Nope, nope, nope.
All-in-all then, it is fair to say that Mr Albanese’s arguments for a conscience vote are unimpressive – and certainly far less impressive than Mr Burke’s rhetoric.
Although, it should be acknowledged here that making such a distinction between the two is somewhat of a false dichotomy.
Despite observing that marriage equality does not directly affect anyone outside LGBTI Australians, and certainly has no impact on freedom of religion, Mr Burke does not follow his own arguments through to their logical conclusion.
Instead, Mr Burke too believes that the right of his parliamentary colleagues to vote against marriage equality is more important than the right of lesbian, gay, bisexual, transgender and intersex Australians to actually get married.
Which means that, in substance, both Mr Burke and Mr Albanese are half-right and half-wrong.
Half-right, to personally support marriage equality and to commit to voting that way when it next comes before the Parliament.
Half-wrong, to argue that the fundamental human rights of LGBTI Australians are not worth binding for.
It is the same half-right/half-wrong position the Australian Labor Party as a whole has adopted since the 2011 National Conference, when delegates voted overwhelmingly to change the Platform to support marriage equality, but also voted (albeit much more narrowly) to make the issue subject to a conscience vote.
The delegates to this year’s Conference, to be held in Melbourne in about eight weeks’ time, still have the chance to change that equation, and ensure that, on marriage equality, our Party finally gets it completely right – that, to adapt the words of Ms Plibersek:
Labor has always been a party that is opposed to discrimination. When asked the clear question whether we support legal discrimination against one group in this country or not, the answer is an unequivocal no.
If we seize this opportunity, and make support for marriage equality binding on our parliamentarians, then it will be a proud moment in our Party’s history.
But not nearly as proud as being able to say, whenever marriage equality finally passes the Commonwealth Parliament, that members of the Australian Labor Party voted unanimously in support.
There’s still time to make that happen. There’s still time to bind.
alastairlawrie 