Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

The Australian Law Reform Commission is currently conducting an inquiry into Traditional Rights and Freedoms – Encroachment by Commonwealth Laws (at the behest of Commonwealth Attorney-General, Senator the Hon George Brandis). They have released an Issues Paper for public consultation, with submissions due by Friday 27 February 2015. For more information about the inquiry, see <http://www.alrc.gov.au/inquiries/freedoms The following is my submission, focusing on LGBTI vilification, religious exceptions to anti-discrimination law, and asylum-seekers and refugees, including LGBTI refugees.

The Executive Director

Australian Law Reform Commission

GPO Box 3708

Sydney NSW 2001

c/- freedoms@alrc.gov.au

Sunday 15 February 2015

To whom it may concern

SUBMISSION TO TRADITIONAL RIGHTS AND FREEDOMS INQUIRY

Thank you for the opportunity to provide a submission to the Traditional Rights and Freedoms – Encroachment by Commonwealth Laws Inquiry.

The subject of human rights and freedoms, and how they should best be protected, both by and from Government, is an important one, and is worthy of substantive consideration.

In this submission, I will focus on three particular areas in which the rights of people are currently being breached as a result of Commonwealth Government action, or in some cases, inaction:

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification
  2. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians, and
  3. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

Before I move to these issues in more detail, however, I wish to express my concern about the Terms of Reference (provided by Attorney-General, Senator the Hon George Brandis) and therefore the overall direction of this inquiry.

The way in which the Terms of Reference have been formulated, and consequently the manner in which the Issues Paper has been drafted, appears to prioritise some rights above others, merely because they are older, or are found in common law, rather than being more modern rights or founded through legislation or international human rights documents.

This is an unjustified distinction, and makes it appear, at the very least, that property rights or ‘the common law protection of personal reputation’ (aka protection against defamation) are more important than other rights, such as freedom from vilification or discrimination.

My criticism of this inquiry is therefore similar to that of the Rights & Responsibilities 2014 Discussion Paper released by the Human Rights Commissioner Mr Tim Wilson. From my submission to that inquiry[1]:

“Specifically, I would argue that the prioritising of certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society.

From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that:

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

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[2]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community. For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights.

Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia”… but which then only focuses on a small number of freedoms, including the right to property, but which neglects others.”

[End extract]

Encouragingly, the ALRC at least acknowledges, on page 31, that “[f]reedom from discrimination is also a fundamental human right.” But the Issues Paper does not include a chapter on this right, nor does it include it within the list of “[o]ther rights, freedoms and privileges” in Chapter 19.

I believe that this imbalance, in examining and prioritising some fundamental rights, while essentially ignoring others, undermines the utility of this process – and is something which must be redressed in the Final Report, expected by December 2015.

I turn now to three particular areas in which the Commonwealth Government either itself breaches human rights, or authorises others to do so.

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification

[NB This topic relates to Chapter Two: Freedom of Speech, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?]

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Issues Paper’s acknowledgement that there are possible justifications for encroachment on this right. In particular, the Issues Papers notes, at paragraph 2.2.4 on page 26:

“Similarly, laws prohibit, or render unlawful, speech that causes harm, distress or offence to others through incitement to violence, harassment, intimidation or discrimination.”

This obviously includes the prohibition on racial vilification contained in section 18C of the Commonwealth Racial Discrimination Act 1975[3].

My primary question is why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status.

The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification, and therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission last year in response to the Senator Brandis’ Exposure Draft Bill seeking to repeal section 18C, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984[4].

In short, if there should be a law to protect against the incitement to discrimination, hostility or violence on the basis of race, then there should also be a law to protect people on the basis of sexual orientation, gender identity and intersex status.

The fact that there is no such Commonwealth law means that the Government is currently failing in its duty to protect LGBTI Australians from vilification.

Finally, I note that this answer is, in some respects, contrary to the intention of “Question 2-2: [w]hich Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?” because it instead proposes an additional area where freedom of speech should be limited.

I submit that such an answer is necessary to redress the imbalance contained in the Terms of Reference, and Issues Paper, because the right to freedom from vilification is equally worthy of recognition, and protection, in Commonwealth law. It is a right that should be extended to LGBTI Australians as a matter of priority.

  1. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians

[NB This topic relates to Chapter 3: Freedom of Religion, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of religion is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?]

I acknowledge the fundamental importance of the right to freedom of religion. However, just as importantly, I support the statement on page 31 of the Issues Paper that:

“[f]reedom of religion is fundamental, but so too is freedom from discrimination on the grounds of gender, race, sexual orientation or some other protected attribute. Freedom from discrimination is also a fundamental human right.”

Indeed, the case at paragraph 3.20 on the same page, namely R v Secretary of state for education and employment; ex parte Williamson (2005) from the UK, provides a useful formulation:

“… there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest, is qualified. This is to be expected, because the way a belief is expressed in practice may impact on others.”

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religion, and protecting others from the harms caused by the manifestation of those beliefs, including through breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous.

In practice, these exceptions provide Government approval and endorsement of the discriminatory treatment of lesbian, gay, bisexual and transgender (LGBT) Australians by religious bodies in a large number of areas of public life[5].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984[6] and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate against both LGBT employees/potential employees, as well as LGBT individuals and families accessing these services, with impunity; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[7]

It is difficult to see how these exemptions, which allow LGBT people to be discriminated against simply as they seek to obtain an education, or access healthcare (which are themselves fundamental international human rights), and to be treated unfairly in employment in a large number of jobs across a wide range of areas, is not a gross breach of their human rights.

Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I submit, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[8], if supplemented by exemptions covering how religious ceremonies are conducted, are both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. These are the only religious exemptions that, I believe, should be retained.

This, much narrower, form of religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others.

Finally, as with my previous answer, I note that this discussion is potentially contrary to the intention of “Question 3-2: Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?” because it highlights an area where, arguably, freedom of religion should be further restrained.

I believe that providing this answer is nevertheless important because, in Australia, freedom of religion is not unduly limited. Instead, freedom of religion is unjustifiably privileged, including where it tramples upon the rights of others, and especially the rights of lesbian, gay, bisexual and transgender Australians not to be discriminated against in public life.

A mature discussion of rights and freedoms would recognise this serious imbalance and seek to redress it, by ensuring that religious exceptions to and exemptions from anti-discrimination law only protected genuine freedom of religious worship, not establishing a supposed ‘right’ to discriminate against people on the basis of sexual orientation and gender identity.

  1. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government

I am not an expert in migration and refugee law, nor in the international human rights instruments that apply in this area.

Nevertheless, I know enough about this subject matter to submit that:

  • Seeking asylum is a human right, and is not a criminal act, irrespective of the manner of arrival (whether by plane or by boat),
  • Responding to people exercising their right to seek asylum by detaining them in offshore processing centres, indefinitely, in inhumane conditions, and without free and fair access to justice, is a fundamental breach of their human rights, and
  • An inquiry into the encroachment by Commonwealth laws upon traditional rights and freedoms would be incomplete without a thorough examination of this issue.

As a long-term LGBTI advocate and activist, I also feel compelled to raise the specific issue of LGBTI asylum seekers and refugees being processed and ultimately resettled in countries that criminalise homosexuality, namely Nauru and Papua New Guinea.

As I have written to several Commonwealth Immigration Ministers, under both Labor[9] and Liberal-National[10] Governments, such a policy clearly abrogates the responsibilities that the Commonwealth Government has towards LGBTI asylum-seekers.

From my letter to then Minister for Immigration the Hon Scott Morrison MP:

“… the mistreatment of LGBTI asylum seekers and refugees raises particular problems, problems that do not appear to be recognised by the Australian Government. Nor does there appear to be any evidence the Government is taking action to remedy them.

Even if the offshore processing and permanent resettlement of refugees continues, this must not include the processing and resettlement of LGBTI asylum seekers and refugees in countries which criminalise homosexuality (which both PNG and Nauru currently do).

If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.

If you, as Minister for Immigration and Border Protection, cannot guarantee that LGBTI asylum seekers and refugees will not be subject to homophobic bullying and harassment, and will be free to lodge claims for protections on the basis of persecution due to their sexual orientation, gender identity or intersex status, then you must not detain them in such facilities.”

[End extract]

As I indicated at the beginning of this section, I am not an expert in this area of law, and therefore am not in a position to provide a more thorough analysis of the (multiple) breaches of human rights law involved in the offshore processing and resettlement of asylum seekers and refugees. I am confident, however, that there will be a number of submissions from human rights and refugee organisations in coming weeks that will do exactly that.

Nevertheless, I felt obliged to include this issue in my submission, given both the severity of the human rights breaches involved, and because of their particular impact on LGBTI asylum seekers and refugees, whose only ‘crime’ is to have sought the protection of our Government.

In conclusion, I wish to thank the Law Reform Commission again for the opportunity to provide this submission, and consequently to raise issues of concern for LGBTI people, namely the absence of anti-vilification protection in Commonwealth law, the breach of our right to non-discrimination because of religious exemptions in the Sex Discrimination Act, and the mistreatment of asylum seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

I look forward to these issues being addressed in the inquiry’s Final Report, to be released by the end of 2015.

Sincerely

Alastair Lawrie

[1] Full submission at: https://alastairlawrie.net/2014/10/27/submission-to-rights-responsibilities-2014-consultation/

[2] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000.

[3] “Offensive behaviour because of race, colour or national or ethnic origin.

  • It is unlawful for a person to an act, otherwise than in private, if:
  • the act is reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate another person or a group of people; and
  • the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

[4] Full submission at: https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/

[5] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity.

[6] Which provides that “[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibility of adherents of that religion.”

[7] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services.

[8] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice…”

[9] My letter to Labor Immigrations Ministers, the Hon Chris Bowen and the Hon Brendan O’Connor from 2012 and 2013: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/

[10] My letter to then Immigration Minister the Hon Scott Morrison from February 2014: https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees Sent to Manus Island, PNG

UPDATE: Sunday 20 July 2014

On Friday 18 July, I received the following response from the Department of Immigration and Border Protection, to my correspondence about the treatment of LGBTI asylum seekers and refugees:

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

Thank you for your letter of 2 February 2014 to the Hon Scott Morrison MP, Minister for Immigration and Border Protection, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I regret the delay in responding.

As a party to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), Australia takes its international obligations seriously. Australia is committed to treating asylum seekers fairly and humanely, and providing protection to refugees consistent with the obligations set out in the Refugees Convention, and other relevant international treaties to which Australia is a party.

The Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to Nauru and Papua New Guinea (PNG) where any asylum claims they may have will be assessed, and if found to be a refugee, they will be resettled in Nauru and PNG or in another country.

Any claims made against Nauru and PNG by an IMA, including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration or exemption from transfer.

Nauru and PNG are also both parties to the Refugee Convention. The Memoranda of Understanding (MOU) they have signed with Australia on the offshore processing arrangements reaffirm their commitment to the Refugees Convention and to treating people transferred with dignity and respect in accordance with human rights standards.

The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

If homosexual activity should occur in the OPC, there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.

The department notes the release of the reports by both the United Nations High Commissioner for Refugees (UNHCR) and Amnesty International on the Manus OPC. Any reports received by the department will be reviewed, and observations or comments verified. Where reports make practical observations that can be implemented and would improve the operations of the centres, the government will address these in partnership with Nauru and PNG to address any deficiencies in good faith.

Any claims of mistreatment at the Manus OPC would be primarily a matter for the Administrator of the OPC. The Manus OPC is administered by PNG under PNG law, with support from Australia. The PNG Minister for Foreign Affairs and Immigration appoints the Administrator of the Centre (a PNG national) under section 15D of the Papua New Guinea Migration Act 1978 (the Act). The Administrator, who, under the Act has control and management of the Centre (currently the Chief Migration Officer, Head of the PNG Immigration and Citizenship Service Authority) has an Operations Manager at the OPC reporting to him, who has oversight of the day-to-day operations of the OPC.

To assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met, including through the provision of health and welfare services. Transferees can report any concerns to OPC staff.

Regarding the distribution of condoms, I can assure you that condoms are available at the Manus OPC, and the department’s contracted health service provider, International Health and Medical Service, conduct regular health information sessions on safe sex practices.

Thank you for bringing your concerns to the Minister’s attention.

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

Some quick thoughts on the above:

  • Even though we are more than a decade into our post-Tampa nightmare of refugee policy in Australia, it is still shocking to see people simply seeking asylum in Australia described, by government officials, as Illegal Maritime Arrivals (IMAs). And it is probably almost as shocking realising that the same government official doesn’t even need to spell out what an OPC is anymore, instead it is taken as a given.
  • While the letter acknowledges there is no mandatory reporting of homosexual activity under PNG law, it explicitly does not state that there is no reporting of homosexual activity to PNG Police, or refute the claim that asylum seekers have been told they will be reported if found to engage in such activity.
  • It is difficult to accept the statement that “[t]o assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met” from the same Government that is responsible for the death, in custody, of Reza Berati just over two weeks after I wrote my initial letter.
  • It is obviously welcome that, at least on paper, the Government claims it makes condoms available to asylum seekers on Manus Island – although whether they are made available in reality would be difficult to verify (given the shroud of secrecy surrounding, and lack of journalist access to, the detention facilities in PNG and Nauru).
  • The main problem remains however, and that is there is no firm commitment not to send LGBTI asylum seekers for ‘processing’ to countries which criminalise homosexuality, and no commitment that LGBTI refugees will not be permanently resettled in countries where they are liable to punishment merely for sexual intercourse.
  • The process outlined in the letter – that an asylum seeker must make a claim against the laws of PNG or Nauru prior to their transfer, is farcical given what we know about the current way asylum seekers are being assessed: while they are detained on navy or customs vessels, on the open sea, through a short interview (with as few as four questions by some reports) via teleconference to officials in mainland Australia. It is outrageous to suggest that the only way a gay asylum seeker can avoid being sent to another country which criminalises their sexual orientation is to declare their sexual orientation at short notice, whilst intimidated by naval or customs personnel (and potentially while intimidated by other asylum seekers, including possible family members), and to specifically claim protection against countries which they may not even be aware they are being taken to, and may not know criminalise homosexuality.

While I certainly wasn’t expecting to take much comfort from this response from the Department of Immigration and Border Protection, it is still depressing to realise that, yet again, so little solace is to be found.

ORIGINAL LETTER

The Hon Scott Morrison MP

Minister for Immigration and Border Protection

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 2 February 2014

Dear Minister

TREATMENT OF LGBTI ASYLUM SEEKERS AND REFUGEES SENT TO MANUS ISLAND, PAPUA NEW GUINEA

I am writing regarding the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers and refugees sent to Manus Island, Papua New Guinea, both for offshore processing and permanent resettlement.

In particular, I am writing about concerning allegations raised in the Amnesty International Report This is Breaking People: Human rights violations at Australia’s asylum seeker processing centre on Manus Island, Papua New Guinea, which was released on 11 December 2013.

Chapter 8 of that report, titled ‘Asylum claims on the basis of sexual orientation’ (pages 73-75), details a range of serious allegations about the mistreatment of LGBTI asylum seekers sent to Manus Island for processing.

Specifically, Amnesty International found that:

  • Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
  • Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there
  • Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police (despite no requirement for mandatory reporting)
  • Gay asylum seekers have reported being subject to bullying and harassment from other detainees and staff, including physical and verbal abuse and attempted molestation, but are not reporting this abuse because of fear of prosecution for their homosexuality
  • Interviewees have indicated that some gay asylum seekers have changed or are considering changing their asylum claim, from persecution on the basis of sexual orientation to persecution on another ground, in order to avoid prosecution (thereby jeopardising the chances of their claim ultimately being accepted)
  • Interviewees have indicated that some gay asylum seekers have chosen to return home, despite the risks involved to the personal safety/liberty, rather than be subjected to ongoing mistreatment because of their sexual orientation on Manus Island and
  • Condom distribution has been banned within the Manus Island detention facility, despite the risk of HIV transmission.

In these circumstances, it is perhaps unsurprising that Ms Renate Croker, the senior official from the Department of Immigration & Border Protection located at the Manus Island detention facility, told Amnesty International that “she was unaware of any asylum claims being made on the basis of LGBTI identity.”

Not only is this contradicted by the Amnesty Report – which interviewed a man who reported that his claim was based on persecution due to his sexual orientation, and who expressed concern about being transferred to Manus Island for this reason – it also ignores the fact that some gay asylum seekers may have changed their claims to other grounds (for the reasons outlined above), or that some asylum seekers may happen to be LGBTI but their claim is in fact based on persecution on other grounds (for example, race or religion).

Irrespective of how their claim is being dealt with, the Australian Government has a responsibility to protect the human rights of any and all LGBTI asylum seekers who have sought protection in Australia. This includes the right to freedom from prosecution on the basis of sexual orientation, gender identity or intersex status, the right to claim asylum and the right to health.

From the information contained in the This is Breaking People report, it seems the Australian Government is falling well short of its obligations in this area.

I should note at this point that I am strongly opposed to the offshore processing and permanent resettlement of any asylum seekers by the Australian Government. This policy does not constitute a humane response, nor does it live up to our international humanitarian and legal responsibilities.

However, the mistreatment of LGBTI asylum seekers and refugees raises particular problems, problems that do not appear to be recognized by the Australian Government. Nor does there appear to be any evidence the Government is taking action to remedy them.

Even if the offshore processing and permanent resettlement of refugees continues, this must not include the processing and resettlement of LGBTI asylum seekers and refugees in countries which criminalise homosexuality (which both PNG and Nauru currently do).

If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.

If you, as Minister for Immigration and Border Protection, cannot guarantee that LGBTI asylum seekers and refugees will not be subject to homophobic bullying and harassment, and will be free to lodge claims for protection on the basis of persecution due to their sexual orientation, gender identity or intersex status, then you must not detain them in such facilities.

If you, as Minister for Immigration and Border Protection, cannot guarantee that all asylum seekers and refugees, including but not limited to LGBTI people, have access to condoms, then you are potentially endangering their lives and you should be held accountable for any health problems which occur as a result (noting that HIV continues to be life-threatening in the absence of treatment).

It has been clear since the reintroduction of offshore processing of asylum seekers in Nauru and Papua New Guinea, passed by the previous Labor Government and supported by the Liberal-National Opposition in mid-2012, that the criminalisation of homosexuality in these countries constituted a significant threat to the human rights of LGBTI asylum seekers sent there.

Indeed, I wrote to you as Shadow Minister for Immigration expressing my concerns about this exact issue in September 2012. I did not receive a response addressing the subject of LGBTI asylum seekers prior to your assumption of the role of Minister for Immigration and Border Protection in September 2013.

I sincerely hope, now that you are the person directly responsible for the health and wellbeing of asylum seekers and refugees, and especially after the Amnesty International Report This is Breaking People has confirmed that these human rights abuses are real, that you take this issue, and your responsibilities, seriously.

I look forward to your response on this important issue.

Yours sincerely,

Alastair Lawrie

A copy of the Amnesty International Report This is Breaking People, can be found here: <http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf

LGBTI Refugees and the 2013 Federal Election

It appears that my previous post on LGBTI asylum seekers was overly optimistic (well, to be perfectly honest it wasn’t that optimistic to begin with – it’s just that the reality has turned out to be even worse than the already dire situation).

After more than 9 months of trying to get an answer out of the Commonwealth Immigration Minister (first Chris Bowen, and then Brendan O’Connor), when I eventually received a response from the Immigration Department instead in June, it failed to answer whether the criminal laws against homosexuality of Nauru and Papua New Guinea applied to refugees in processing centres there.

This omission clearly implied that the criminal laws do in fact apply. However, the letter left open an interpretation that refugees who were LGBTI, and feared persecution (or prosecution) in these countries, could apply to the Minister to be transferred to Australia, on the basis that their rights could not be guaranteed in those countries.

Unfortunately, that no longer appears to be the case. In the time since that response the Prime Minister changed, and within a month of Rudd’s return he had announced the ‘PNG Solution’, with a similar deal with Nauru revealed shortly afterwards. These policies moved beyond offshore processing, to include the permanent ‘resettlement’ in those countries of any and all refugees who arrive in Australia by boat.

Now, let me say from the outset that I completely oppose these policies, and believe them to be unconscionable, inhumane, and probably contrary to international law. Australia should not be in the business of abrogating its responsibility to offer protection to people who are fleeing persecution by simply dumping these people in other countries. And my opposition applies to the ‘resettlement’ of all refugees, irrespective of the grounds of their persecution (eg race, religion, nationality etc).

However, as a gay man, and in particular as a passionate advocate for LGBTI rights, I find policies that involve the resettlement of LGBTI refugees in countries that criminalise homosexuality particularly abhorrent. That is exactly what Australia is doing – taking any LGBTI refugee who arrives by boat and sending them to countries which make male homosexuality a criminal offence, liable to up to 14 years’ imprisonment.

I know that many other people agree with me – in fact, the only pleasing thing arising from this horrible situation has been the emergence of a variety of voices condemning these policies. This has meant that the Labor Government has been unable to avoid questions on this particular topic (something which they had largely managed to successfully do in the previous 10 months).

But it doesn’t make the answers given by Government Ministers any easier to stomach. On 8 August, Serkan Ozturk of the Star Observer reported that the Attorney-General Mark Dreyfus (an intelligent man who really should know better): “confirmed the government intends to send all asylum seekers who arrive in Australia by boat without a visa – including LGBTI people fleeing persecution and people living with HIV – to Papua New Guinea (PNG) for processing and permanent resettlement despite laws criminalising homosexual sex, high rates of HIV infection and limited medical and social infrastructure on the impoverished island-nation…

When questioned by the Star Observer on whether LGBTI asylum seekers would be sent to PNG, Dreyfus was unequivocal.

“You’ve outlined an aspect of PNG law which is of general application but as I say we are not ruling out any group,” Dreyfus said.

“At the same time our Minister for Immigration, Tony Burke, has made it very clear that those transfers won’t occur until there is appropriate accommodation and appropriate circumstances for everyone who is sent.”

Pressed on whether that meant the Australian government would be placing pressure on PNG to reform legal codes, Dreyfus said he would not be drawn “giving a running commentary” on the laws of neighbouring countries, including PNG, Indonesia or Malaysia.

“We don’t think that’s necessary in order for Australia to comply with our international legal obligations and the obligations we have under the Migration Act.””

The fact that the Government is aware of this situation, and specifically the potential consequences of sending LGBTI refugees to these countries, but has continued on along this path irrespective of the dangers, is damning.

Sadly, the Foreign Minister, Senator Bob Carr, isn’t any better. On 6 August the ABC reported (from what I believe was a response to an oursay question from Senthorun Raj) that Senator Carr similarly confirmed that homosexual asylum seekers who arrive in Australia by boat will be resettled in PNG despite facing prison under local laws, even though those laws conflict with contemporary Australia values.

“I am concerned about… what we see as a grotesquely outdated, legal position applying in PNG. I understand – and I know this is little comfort – but there have been few if any charges laid or prosecutions made under laws prohibiting homosexual activity in PNG,” he said. You are right on one thing, Senator Carr: that is little comfort.

Tony Burke, the current Minister for Immigration (and the third person to hold that post this year), also believes that this policy is appropriate. However, in one of the most Orwellian moments of the 2013 federal election campaign (or indeed in recent Australian politics more generally), he stated that he had been advised that ‘no part of the caseload so far’ had arisen (ie no LGBTI person had been sent to Nauru or PNG so far).

The transcript, from a media conference on 1 August, is as follows:

Question: Sorry Minister, just to go out to Manus Island for a moment. Given that homosexuality is still considered a crime in PNG, but our government has pledged to transfer all asylum seekers regardless of their sexuality, what efforts have been undertaken to make sure that those transferred will not be persecuted for their sexuality, either as detainees, or if they are then settled in PNG?

Tony Burke: In the first instance we have no part of the caseload so far where this issue has arisen, no part of the caseload where this has arisen. In…

Question: So does that mean…

Tony Burke: Please, please, when other people were talking over you I made sure you got the run so allow me to answer your question.

I’ve been very careful throughout all of this to not carve out any exclusions from the policy. And I explained the implications of that with the specific reference to what the Opposition have attempted to do with women and children. There are very deep implications if we start carving people out. And if you do that, you are by no means taking a – I’m saying you, but anyone doing that is by no means taking a compassionate response because of the automatic reaction that people smugglers will engage in.

My language on this has not changed, which is people will be sent when we are confident they will be safe, when we are confident that appropriate accommodation and services are in place, and I’m not going to define it further than that.”

Which raises far more questions than it provides answers. It is possible that what he meant to say was that no-one sent to Manus Island has lodged a refugee claim on the basis of persecution of sexual orientation, gender identity or intersex status. But that doesn’t mean those claims won’t emerge at a later point (it is definitely possible that a LGBTI refugee will not disclose their status in the limited time after arrival in Australia and before transfer, but that it would instead emerge at a later point).

And it ignores the fact that someone who is seeking refugee protection on the basis of race, religion or other grounds can also be LGBTI (even if just as someone who has sexual intercourse with someone else of the same sex). This would not be immediately apparent to an interviewer and there are foreseeably several reasons why they would NOT disclose their particular circumstances (especially if fleeing as part of a family group where their family is unaware of their sexual orientation).

But the most obvious flaw in Minister Burke’s advice is that all refugees who arrive by boat, including children, are being ‘resettled’ in PNG and Nauru. Those children could grow up to be lesbian, gay, bisexual or transgender, or they may have been born intersex, and it may not be known to that child, their family or indeed anyone else at the time of resettlement. It does not make it any more acceptable that as a country we exposed that child to future criminal prosecution (or at the very least, societal discrimination), simply because we didn’t know of their status.

We DO know that this policy is wrong and should be stopped, which means that we are collectively responsible for what happens in the future as a result of it.

Unfortunately, while some of the positive reforms of the Rudd/Gillard/Rudd Labor Governments will be dismantled by the incoming Abbott Liberal-National Government it seems there is bipartisan agreement on the idea of resettling refugees in South Pacific countries. Opposition Leader Tony Abbott, and Shadow Minister for Immigration Scott Morrison, both appeared to welcome the announcement by Rudd of the PNG policy, while they have also announced their own plans to resettle refugees in Nauru (aka “tent city”).

It should also be pointed out that, last September, at the same time that I wrote to the Immigration Minister (and Prime Minister and Attorney-General), I also wrote to the Shadow Minister, Opposition Leader and Shadow Attorney-General, raising the same concerns about the processing or resettlement of LGBTI refugees in countries which criminalise homosexuality. No-one from the Opposition ever responded to these letters, which perhaps indicates how seriously they take those concerns.

The fact that, as it stands, both major parties endorse this policy means that, no matter who is elected on Saturday, the incoming Government will continue to abrogate its responsibilities to offer protection to all refugees, including refugees who are LGBTI. That it will inevitably continue to be cheered along by sections of the press will make it even harder to endure.

Perhaps the only ray of hope in this awful mess is that the High Court might do what the public should (but won’t) on Saturday – tell our MPs, from both the ALP and the Liberal-National Coalition, that resettling refugees in PNG and Nauru is unconscionable, inhumane, and, hopefully, unlawful. So, to our distinguished High Court Justices I say: no pressure, but it seems this is now entirely up to you.

Letter to Chris Bowen/Brendan O’Connor on LGBTI Asylum Seekers

Update 6 February 2013: So, this correspondence was never answered by Minister Bowen, before he left the portfolio in last week’s reshuffle. I don’t know for sure what that is a reflection of, but can only assume that not answering in 6 months means he was not open to scrutiny on the issue of LGBTI asylum-seekers and in particular their treatment on Nauru, Manus Island and, eventually, in Malaysia.

With the appointment of Brendan O’Connor as the new Minister for Immigration I have resent the original correspondence, including the questions below, to Minister O’Connor. If I have not received a response within 4-6 weeks it will be time to pursue this again but in a more public format. Thanks for reading.

Original Post: Like many Australians, I was appalled by the recent decision of the Australian Government to accept the recommendations of the Houston Report and send asylum seekers to Nauru and Papua New Guinea for indefinite periods (and by the Government’s refusal to rule out sending asylum seekers to Malaysia in the longer-term). I am also appalled by the potential consequence of this decision for LGBTI asylum seekers, and have written the following letter to Australia’s Immigration Minister, Mr Chris Bowen. I will of course write a similar letter to the Opposition’s Immigration spokesperson Scott Morrison, given the Liberal and National Parties supported the move to ‘offshore processing’. As always I will post any response received.

Dear Minister Bowen,

I am writing to express my disagreement and disappointment with the Australian Government’s decision to implement the offshore processing of asylum seekers.

I think that this decision is a failure of our human rights obligations under international law, not to mention a failure of our moral obligations as human beings to open our arms and our hearts to people fleeing persecution.

Given that your government has now committed to process asylum seekers in Nauru, Papua New Guinea and, in the medium term, through ‘regional processing’ in Malaysia, I am also writing with several questions which I would like answered about one particular issue – the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers.

  1. Do you acknowledge that there are many countries around the world where being LGBTI is illegal and/or subject to government harassment and intimidation?
  2. Do you accept that LGBTI people have the right to seek asylum on the grounds of persecution of their sexual orientation or gender identity?
  3. Do you agree that this means LGBTI asylum seekers should be accepted by countries like Australia, rather than be returned to their originating country and asked to ‘return to the closet’ or conceal their sexual orientation or gender identity? (Disturbingly, there have been some cases within Australia suggesting that LGBTI asylum seekers can be returned in such circumstances, something which is not required of people fleeing persecution on political, religious or other grounds. I am simply seeking your confirmation that you do not support this special and discriminatory imposition on LGBTI asylum seekers).
  4. Do you support the right of LGBTI people to seek sexual companionship, form loving relationships and found families no matter where they are in the world? Are these fundamental rights which should be protected?
  5. Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?
  6. Are you aware that homosexuality is currently illegal in all three countries to which the Australian Government currently intends to send asylum seekers?
  7. Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian government (or, in the case of Malaysia, to asylum seekers who may be living in the community)?
  8. What representations have the Australian Government made to, and what agreements have the Australian Government sought with, the governments of Nauru, Papua New Guinea and Malaysia, on the specific treatment of LGBTI asylum seekers?
  9. Do you agree that, if LGBTI asylum seekers are unable to seek sexual companionship, form loving relationships or found families in Nauru, Papua New Guinea and Malaysia, that this is a fundamental breach of their human rights?
  10. As a fellow human being, are you comfortable that the Australian Government will reject someone who is fleeing the death penalty in another country for simply being who they are and instead send them to a third country where it remains a criminal offence to be who they are?

I have copied this letter to the Prime Minister, Foreign Affairs Minister and Attorney-General given these issues cut across several portfolios. I look forward to your prompt response.

Yours sincerely,

Alastair Lawrie

As an illustration of why there remain so many LGBTI refugees, the following map indicates the countries in which homosexuality remains illegal – while there has been significant progress over the past 50 years, there remains far too many countries shaded black, including of course Papua New Guinea:

Decriminalization_of_homosexuality_by_country