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

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

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

 

Acting Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

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

 

Friday 26 May 2017

 

Dear Committee

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“To all those affected we say sorry.”

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Minister Dick concluded his speech by noting that:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Sincerely

Alastair Lawrie

 

Palaszczuk

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

The State of Homophobia, Biphobia & Transphobia Survey Results, Part 3: Where Discriminatory Comments Occur & Their Impact

This post is the third in a series of six, reporting the results of The State of Homophobia, Biphobia & Transphobia survey I conducted at the start of 2017[i].

In all, 1,672 lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) Australians provided valid responses to that survey.

In this article, I will be focusing on their answers to two questions, which asked about the ‘location’ where they witnessed anti-LGBTIQ comments in 2016, and the impact that these comments had on them.

The results of the first may or may not be surprising (depending on whether you use social media or not), while the responses to the second are, as expected, often heartbreaking to read.

The State of Homophobia, Biphobia & Transphobia-11

Question 1: Over the past 12 months, have you witnessed homophobic, biphobic, transphobic or intersexphobic comments in any of the following (select as many as appropriate):

Media

Social Media

Politics

Religion

Public Space

None of the Above

1,645 people answered this question, and this was the overall response (ranked from highest to lowest):

  • Social Media 92% (1,506 responses)
  • Politics 83% (1,367)
  • Religion 81% (1,330)
  • Media 80% (1,308)
  • Public Space 67% (1,109)
  • None of the Above 3% (50).

It is clear that, in 2016, more LGBTIQ Australians witnessed homophobic, biphobic, transphobic or intersexphobic comments on social media than in any other category – and by a considerable margin.

There is an important caveat to this finding, because a significant proportion of these anti-LGBTIQ comments may in fact be posts incorporating homophobia, biphobia, transphobia and intersexphobia from politics, religion or the media (for example, sharing media stories about the joint Liberal-National Government/fundamentalist christian campaign against Safe Schools).

Even if we accept that, it is nevertheless apparent that the primary medium through which we receive anti-LGBTIQ comments, of any kind, is via platforms such as Facebook, Twitter, YouTube and Instagram (or, for people younger than me, Snapchat and other apps I probably haven’t even heard of).

The next three highest-ranked answers – politics, religion and the media – were all very close together.

But, it should also be noted that a higher proportion of LGBTIQ people reported witnessing religious homophobia, biphobia, transphobia or intersexphobia than the proportion of Australians who identify as religious[ii]. That is a pretty impressive effort by the Australian Christian Lobby, Catholic Church and others.

Thankfully, the proportion of respondents who indicated they witnessed anti-LGBTIQ comments in a public space was lower than for other categories – although, at two-thirds of all respondents, it is still depressingly high.

However, the most depressing statistic of all is that just 3% of LGBTIQ people who answered this question – or 50 people in total – reported that they had not witnessed homophobia, biphobia, transphobia or intersexphobia via social media, politics, religion, media or in a public space during the past 12 months.

The next time a conservative politician – or NewsCorp columnist or Christian Lobby spokesperson for that matter – tries to claim that anti-LGBTIQ prejudice no longer exists, or isn’t a problem in contemporary Australia, simply show them these findings.

LGBTIQ Status

There was remarkable consistency across the lesbian, gay, bisexual, transgender, intersex and queer communities in their respective answers to this question[iii]:

  • Lesbian: Social media 91.4%; Politics 82.4%; Media 78.6%; Religion 77.7%; Public space 69.3% and None of the above 1.8%
  • Gay: Social media 85%; Religion 78.6%; Politics 78.2%; Media 72.8%; Public space 58.8% and None of the above 3.6%
  • Bisexual: Social media 89%; Politics 80.6%; Media 79.9%; Religion 76.6%; Public space 70% and None of the above 3.3%
  • Transgender: Social media 92.7%; Media 87%; Politics 85.4%; Religion 81.8%; Public space 75.5% and None of the above 1%
  • Intersex[iv]: Social media 75%; Religion 70%; Media & Public space both 65%; Politics 60% and None of the above 0%
  • Queer: Social media 90.4%; Politics 84.7%; Media 83.4%; Religion 79%; Public space 76.7% and None of the above 1.1%.

As can be seen, the highest-ranked response – for each category – was Social media, with percentages ranging from 75% to 92.7%, confirming the role of Facebook and other platforms as conduits for anti-LGBTIQ comments.

As with verbal harassment and abuse, analysed in Part 1, the figures reported by bisexual, and especially gay, respondents were significantly lower than for LTI or Q people.

This is particularly apparent in terms of the answer for ‘None of the Above’: 3.6% of gay people, and 3.3% of bisexuals, checked this answer, whereas the next highest rate for any group was lesbians at around half that (1.8%).

On the other hand, and again consistent with earlier figures for verbal harassment and abuse, transgender and to a slightly lesser extent queer respondents were most likely to witness homophobic, biphobic, transphobic and intersexphobic comments.

In fact, trans people reported the highest rates of anti-LGBTIQ comments in all of social media, politics, religion and media (which is perhaps not that surprising after 12 months of sustained attacks on safe schools and ‘gender fluidity’), while the highest rates for anti-LGBTIQ comments in public spaces were reported by queer people.

Meanwhile, only 1% of trans, and 1.1% of queer, respondents answered none of the above – just one-third of the rates for gay and bisexual people.

The answers to this question once again confirm two things:

  1. Rates of homophobia, biphobia, transphobia and intersexphobia are unacceptably high in Australia, and
  2. Anti-LGBTIQ prejudice disproportionately impacts trans, intersex and queer people.

Aboriginal and Torres Strait Islander People

In contrast to Parts 1 and 2 of the survey results, the figures for Aboriginal and/or Torres Strait Islander LGBTIQ people were not significantly higher than for their non-Indigenous counterparts – although nor were they significantly lower (except for perhaps in relation to politics):

  • Social Media 90.3%
  • Religion 79%
  • Media 75.8%
  • Politics 72.6%
  • Public Space 67.7%
  • None of the Above 1.6% (or just 1 out of 62 respondents).

Age

The responses in terms of different age groups threw up a couple of surprises:

  • Aged 24 and under: Social media 91.5%; Politics 81.2%; Media 78.8%; Religion 78.1%; Public space 70.8% and None of the above 2.5%
  • 25 to 44: Social media 89%; Politics 85.7%; Religion 81.7%; Media 80.5%; Public space 67.3% and None of the above 2.5%
  • 45 to 64: Social media 85.8%; Religion 77.6%; Politics 75.8%; Media 71.9%; Public space 52% and None of the above 3.9%
  • Aged 65 and over[v]: Social media and Religion both 67.6%; Politics 59.4%; Media 54%; Public space 24.3% and None of the above 10.8%.

As expected, people aged 24 and under were more likely to report witnessing anti-LGBTIQ comments in social media than any other cohort – although it was only slightly higher than for people aged 25-44, and social media remained the highest-ranked answer (either stand-alone, or equal) for all age groups.

Young people were also more likely to witness homophobic, biphobic, transphobic and intersexphobic comments in public spaces.

However, perhaps more surprisingly, it was their counterparts aged 25 to 44 who were actually most likely to witness anti-LGBTIQ comments in the contexts of politics, religion and the media.

Both groups also reported similar rates for ‘none of the above’: 2.5% or around 1 in every 40 people said they did not witness anti-LGBTIQ comments in these contexts in the last 12 months.

In short, people aged between 25 and 44 appear just as likely to have witnessed homophobic, biphobic, transphobic and intersexphobic comments in 2016 as their younger LGBTIQ equivalents (although people aged under 25 may nevertheless feel the impact more, particularly if they are yet to develop coping mechanisms to deal with encountering such prejudice).

Less surprisingly, the answers for the two older age cohorts show reduced exposure to anti-LGBTIQ comments, especially in public spaces (just 52% for people aged 45 to 64 and 24.3% for those aged 65 and over). The rates for none of the above also increased significantly for both groups.

[NB Unlike previous – and planned – posts, this article will not examine the different responses for each Australian state and territory because the results are not considered relevant.]

**********

Question 2: If you feel comfortable, please indicate the impact that these homophobic, biphobic, transphobic or intersexphobic comments had on you [Optional]

This question allowed respondents to describe, in their own words, the impact that witnessing anti-LGBTIQ comments during 2016 had on them – and the answers provided are, to put it frankly, depressing.

As with Part 2 of the survey results, at this point I would recommend that you only read further if you are emotionally prepared to do so.

To help you decide whether to continue, please be aware that comments include descriptions of mental health issues, depression and suicide (including suicide ideation). Relevant help numbers are provided at the end of the article.

A lightly-edited[vi] version of the answers to this question – outlining the personal impact of homophobic, biphobic, transphobic and intersexphobic comments – can be found at the following link:

question-2-the-impact-of-discriminatory-comments

From my perspective, a number of key themes emerge in these comments:

While a small number of respondents indicated that witnessing such comments had little or even no impact on them, the majority indicated that anti-LGBTIQ comments had caused major impacts, contributing to mental health issues, depression and even suicide ideation.

“Every day I consider suicide. My life looks normal on the surface, but why should I bother living when the majority hates me? I’m not wanted and seen as a freak. I just want to feel normal and safe, but straights will never allow that in my country (Australia). Homophobia makes me wish I was dead.”

“I feel like it raises the suicide rates and makes us feel less than human as [it] makes people feel homophobia is ok because we don’t have equality. In the last year I’ve had 4 friends commit suicide due to homophobia.”

“They make me feel worthless, like a freak, like I don’t deserve to live, like I don’t deserve anything, like I’ll be alone forever, like no one will love me, like I should just kill myself because it would be easier.”

The feeling of being ‘lesser’ than others was also common:

“It makes you feel separate. More like an oddity than a person. Like you’re… less”

“It just makes me feel like shit to be frank. Like I’m not a worthwhile human being. Like I’m a joke and not a living, breathing person with thoughts and feelings.”

“It hurts my self worth, makes me feel as though my identity is something negative and is something that I should be ashamed of.”

A sense of ‘hopelessness’ was also pervasive:

“It makes you feel that the world will never change & there is no place for you in it.”

“It is depressing to realise that, despite the progress that has been made on many fronts, just how widespread anti-LGBTI prejudice really is, including from our so-called political leaders.”

“Homophobia in media and everyday life is a constant reminder to the lgbtq community that they are and probably always will be seen as less than others.”

“It made me feel helpless, like nothing was ever going to change no matter how hard people work at being accepting.”

A number of commenters expressed despair at the level of anti-LGBTIQ prejudice in Australia, and associated alienation from their country:

“They made me feel as if my own country didn’t want me and that I wasn’t really a person.”

“I question whether Australian society is as accepting as I thought it was.”

“Disgust and shame at both myself and Australia. I feel marginalised, oppressed, fearful, frustrated and in some cases terrified of the country I live in.”

“If anything, these comments have disturbed me, and made me feel quite frightened for mine, my partner’s and Australia’s future moving forward…”

“These actions and comments make me feel like Australia is still leaving [sic] in the 1900s and I love my country and people, but sad that there a [sic] still so many closed minded people in this country.”

Or simply “Used to it. This is Australia after all.”

Another strong theme was modifying behaviour to avoid being subject to homophobia, biphobia, transphobia and intersexphobia:

“Witnessing or hearing discriminatory acts/language makes me feel unsafe. It makes me modify my behaviour in certain situations to avoid potential violence.”

“They make me feel like I have to adjust my behaviour to make straight people feel comfortable. My partner of 5 years and I don’t hold hands or kiss in public because of this. I hate being a different person in public from the one I am at home. On our train line, it would simply not be safe to hold hands or kiss.”

“It makes me feel unsafe to walk down the street ever since embracing my sexuality. I would certainly not feel comfortable walking down the street hand in hand with my partner and I am careful not to make too much eye contact if I’m wearing something that might indicate my sexuality.”

For some, this even extended to an increased fear of disclosure/’coming out’:

“Increased anxiety about people finding out I’m gay. Less likely to come out.”

“It’s made me scared to come out to some people including my mother.”

“Scares me into not coming out to the people closest to me and makes me feel ashamed for being myself.”

“I feel sad and I actively hide my sexuality.”

“They made me ashamed and want to hide myself further in the closet.”

Some indicated anti-LGBTIQ comments had little impact – but only because they were ‘used to it’, ‘numb to it’, or had developed ‘thick skins’:

“I’m fine, I’m all grown up and used to it now. But if we can stop it happening to others in the future, that should be our primary focus.”

“I’m a lot more thick-skinned now but it really affected me as a kid and teenager growing up and I spent a lot of puberty feeling very suicidal. These days it mostly just makes me angry.”

“I have quite a thick skin and don’t care what other people say, however I am disappointed that more of society have not moved on.”

Or, even more pithily:

  • “I’m used to it, kind of just get number over the years.”
  • “Very little, I have a thick skin.”
  • “I am very used to hearing phobic comments.”
  • “I’m so used to it I just switch off.”

However, even for those who claimed to have learnt to ‘live with it’, there was still significant concern about its impact, on themselves and others:

“I usually end up numbing myself to the full effect of these comments because to truly engage with my feelings about it would mean constant pain, anger and disillusionment in humanity and I wouldn’t get through the day. But when it takes over, it’s a horrible experience.”

“It bothers me, but I learn to live with it. If someone is rude to me or if I find something rude, I can’t waste my emotional energy getting caught up in it anymore. But it is a problem, because I know these statements have a much stronger impact on others who are lgbt, who have suffered a lot more because of their sexual orientation or gender identity.”

Some respondents ‘turned lemons into lemonade’, and used homophobic, biphobic, transphobic and intersexphobic comments as motivation:

“They make me annoyed or angry. They make me more determined to help pro-lgbt causes or keep active.”

“In general, abuse makes me feel both unwanted and even more determined to promote equality so that future generations of LGBTQI people do not have to endure the abuse and discrimination that some people have received.”

“The current attitude towards the LGBTIQ community makes me angry and ever more passionate to step up and attempt to make a change.”

“It gets me fired up! I can’t help it – I have to respond. I’ve been fighting this fight for over twenty years, so I can’t let it go unchecked… I stick it to them.”

“Makes me more determined to work against the hate.”

“Makes me stronger in my resolve to educate people about LGBTIQ issues – eg being gay is not a choice, it is not a disease that other people can catch from me, I am not sick, disordered or mentally unbalanced; I don’t need to be cured or changed, I am not any more a ‘sinner’ than any other human being etc. I am perfectly happy and content.”

One of the most common type of comment was an expression of care, and concern, for younger and/or more vulnerable members of the LGBTIQ community:

“I’m fairly resilient, so these things tend not to affect me. However, they do cause me great concern for those who may not be resilient, or the young in our community.”

“They don’t worry me now because I am fully accepting of myself but I hate to think of the effect they would have on younger people.”

“I feel angry about the impact it would have on younger people (I’m older now and I’m more concerned about protecting the younger ones).”

“Mostly it’s really deflating and makes me concerned for younger lgbtiq+ people who don’t have support networks.”

“Made me feel sad for the younger ones, still coming to terms with who they are, fighting depression.”

“It’s hurtful and worrying. I’m old enough now to not let it bother me but it concerns me to think about how this affects teenagers coming to terms with their sexuality. Hatred in the public sphere is only continuing this.”

“While I’m at a point in my life where I realise that the people who publicly express these negative points of view often in a negative way are ignorant and their negativity is their problem, not mine, I feel sad and angry thinking that less secure, particularly younger LGBTIQ+ individuals, may be impacted extremely detrimentally by these comments.”

“I fear for young LGBTQ people who don’t have the support or self awareness to know that there is nothing wrong with them and that they will find their place one day, if not today.”

“Made me feel unsafe and also made me feel sad for all the young kids who’s health would be more majorly impacted by this, almost every LGBT+ person I know has attempted suicide or suffered from trauma as a response to abuse and I feel this.”

“I have witnessed friends being vilified and the victims of homophobic rants. The psychological toll as a result of the constant barrage from all forms of media, politics, religion & the public confirms the reasoning behind the high mortality rate for young LGBTI members of our community.”

These two comments probably best sum up this view:

“It really distresses me that people still act this way. I worry for the younger youth who this could have a greater impact on. Whoever says homophobia doesn’t exist in today’s society is very wrong.”

“It upsets me that young LGBTIQ children are being constantly reminded that they are not treated the same as others in this society when they watch out-of-touch, backward-thinking politicians who do not see how hurtful their words against same-sex marriage and the safe schools program are. It is so upsetting that they cannot see the damage they are doing.”

The parents in rainbow families also expressed concern for the potential harm anti-LGBTIQ comments cause to their children:

“I don’t feel homophobia has an impact on me but I often wonder if it’s upsetting to my son. He tells me it bother him sometimes.”

“I feel confident in my personal relationship however when in public spaces with my children I worry about negative reactions to my lesbian relationship if I show any form of public affection towards my partner. It is better sometimes to ‘pass’ as a parent rather than show we are a family, purely because I do not want my children to observe homophobic reactions or hear homophobic comments about their parents or family.”

The care shown by LGBTIQ people for their children, and for younger members of the community, stands in marked contrast to the ‘christian’ values too-often on display by religious fundamentalists, with some respondents nominating religious intolerance as the source of homophobia, biphobia, transphobia and intersexphobia:

“Especially the comments from people representing my religion are really painful and I find myself often thinking if I can even be part of such a community that should be about mercy and love and is often just full of hate.”

“The Tasmanian Archbishop’s attempts to change the anti-discrimination act have resulted in me moving school despite having a supportive school I think it is no longer appropriate for me to attend a school that is overseen by someone who has openly proclaimed his dislike of homosexuals, and is attempting to change laws to discriminate against them.”

“I went to catholic school and the church felt it right to give a pamphlet to each child outlining what a marriage is and making sure to discourage anyone who was in the LGBTQI community.”

“It’s everywhere. Every time someone mentions gay marriage or trans health there is always a rebuttal speaker from some religious group.”

“all these churchie people… they preach and say we are sinning… Yet they are being the judgmental ones. I don’t know any LGBTIQ people that go around with fliers etc saying join our church etc. So why do they try [to] pressure us to change who we are?”

“Christian people on Facebook posting anti-gay marriage and safe schools program under the guise of love the sinner not the sin…”

That last comment was typical of many that raised homophobic, biphobic, transphobic and intersexphobic comments in the context of last year’s dual anti-LGBTIQ campaigns – against Safe Schools and for a plebiscite:

“well I hear all the hate-filled rhetoric from the religious alt right that sadly have too much of a voice in gov from groups like the christian lobby and other politicians. the whole gay marriage plebiscite seemed to give every anti-gay hate group a paid advertisement on social media…”

“Made me feel unsafe being out in my work space ie political discussions about safe schools and queer people corrupting children made me feel I might lose my job at a school.”

“The same sex marriage debate and the vilification of the safe schools program has allowed homophobia to run rife in politics and in the media leading to public aping of homophobic beliefs.”

“Particularly the discussion in the media regarding the plebiscite had a huge effect on my emotional well being. I found myself harbouring a lot of stress, feeling less safe, and often feeling emotional and being brought to tears.”

“plebiscite! The very idea that our government (the same one that is apparently working for the Australian people) can legislate hate speech (or an entire campaign) against a minority under the guise of politics disgusts me and makes me ashamed to call myself Australian.”

“A feeling of being lesser than anyone else. Worry for young people, especially when the plebiscite about equal marriage was being threatened. This also gave other homophobes permission to be expressive about their hatred.”

“The constant negativity and blatant homophobia present in the political and mainstream media spheres, especially over Safe Schools and on marriage equality, has left me emotionally wrung out and uneasy, including making me less likely to decide to announce, share or defend my position on these issues in places I feel comfortable in, including my workplace in a secondary school.”

A number of commenters also highlighted the Trump factor, and the fear of Australia importing US-style anti-trans bathroom laws:

“Trump supporters have also gotten on the anti-LGBTQ movement and all over social media if you tag anything with one of those, you are instantly trolled. Trump hired people to set up fake accounts and constantly go out and attack our community so a by-product of the US election was the LGBTQ community all around the world was attacked and criminalised and marginalised.”

“While I’m not trans, I have friends who are, and even in a relatively tolerant country like Australia they still encounter discrimination every day. We hear about the horrendous bathroom law debates raging in the US and think, there’s one more place we aren’t safe. The same intolerance exists in Australia; it’s just quieter.”

In fact, the existing high-levels of transphobic comments generally was raised by several respondents:

“I only recently began to take steps to transition socially, and it feels like every other day there’s a new reminder of how much hate and harassment still exist. The thought of coming out and having to face this regularly terrifies me.”

“I see constant transphobia in people’s reactions towards trans/non binary/queer people.”

“A trans* friend of mine died and majority of the comments were transphobic of nature and it hurt me to witness how my peers felt about individuals being transgender.”

“Lyle Shelton has made incredibly transphobic remarks that have had me on the verge of tears.”

(At least) 2 people highlighted the failure of Victorian birth certificate reform late last year as a particular source of transphobic comments:

“Shocking. I am significantly affected by the ongoing ceaseless abuse we experience at the hands of media and parliament. The recent comments in the Victorian parliament voiced by the opposition were appalling. The constant transphobia lends itself to a constant low level of depression only countered by actual interaction with mainstream people who seem to be much more accepting…”

“It’s a kick in the guts every time I see the media misrepresent trans people. In politics it’s worse though – that they didn’t change the law about birth certificates last year has made my life harder at a practical level.”

Perhaps unsurprisingly, given both its popularity and the high share of respondents indicating social media as a source of anti-LGBTIQ comments, at least a dozen respondents specifically cited prejudice on Facebook:

“Facebook is covered with homophobic comments and pictures that don’t get removed.”

“Homophobic/transphobic comments from people on posts on Facebook…”

“I follow a large amount of people on social media where I almost daily see harassment to multitudes of people in the queer community.”

“Found them rather disturbing particularly on Facebook where posters ‘go for it’ with their opinions from the safety of a keyboard. I found it scary and rather confronting the amount of homophobia in the community in Australia, and doubly scary in other parts of the world. I think if a person is secure in their sexuality then they don’t feel the need to hate whereas (in my experience) if a person has issues, either consciously or unconsciously then they ‘project’ this through homophobia onto GLBT people.”

This commenter raised particularly concerning issues with Facebook:

“I don’t feel mentally capable of reading comments on social media posts about LGBTQI issues for fear of harassment and homophobic/transphobic comments. I don’t comment at all because I’m harassed. Someone reported my name on Facebook and I was forced to provide legal identification and change my account to my birth name or my account would be shut down. I now cannot change my name on Facebook until I legally pay (220$) to have my name changed. Seeing my birthname daily causes me huge amounts of distress and dysphoria.”

Given the prevalence of anti-LGBTIQ comments on social media, it is unsurprising some survey respondents are resorting to ‘switching off’:

“Frankly, makes me not want to live, but I don’t tell anyone that because I think that’s what these people actually want. They want me to hate myself and take care of ‘the issue’ (ie me) for them. So I’ve unplugged from it for the most part and focus on loving myself.”

“Lesbians have copped it a bit this year and it’s made me more stressed than usual. Thinking of cutting myself off from media outlets.”

“I had to block people on social media. I choose what I read in the media and its source.”

“I considered seeking counselling to deal with my mental health regarding [anti-LGBTIQ comments] specifically, as well as removing myself from social media and avoiding news articles.”

“I found them disturbing, misleading & hurtful. I was closely following the plebiscite debate and also had clients at my work being affected by the comments in the media. After a while of hearing the same negativity about LGBTIQ people it starts to get to me. I have to take a break from reading things because they are saying ignorant and nasty things about me and my family. I have found it quite stressful and depressing.”

“I am lucky enough to be in a position where I can use my experiences to hopefully discourage this kind of behaviour. It still makes me livid to hear or read LGBTI-phobic comments because they touch on the very essence of who I am and the people I love. I have also noticed that particularly political LGBTI-phobia has a real impact on my mental health. In the interest of my own sanity I often choose to disengage, which then subsequently makes me feel guilty because surely someone has to speak up to change people’s minds.”

Overall, these responses highlight the profound impact that homophobic, biphobic, transphobic and intersexphobic comments – in social media, politics, religion, media and public spaces – had on LGBTIQ Australians over the past 12 months.

The following two quotes, for me, summarise just how important it is to push back against this rising, and hurtful, wave of prejudice:

“This behaviour creates a cage for all members of the LGBTAQI+ community. Any negative act towards someone from this community pushes us back into the cage of fear we’re all trying so hard to destroy.”

“I feel like there is a war on gender and sexuality and everywhere is a battleground of some sort and I’m a civilian trying to just live and explore myself but it’s not ‘safe’. Having friends who are accepting and part of the community helps but it still feels like a war…”

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Conclusion

The results of these two questions have confirmed not only that homophobic, biphobic, transphobic and intersexphobic comments are rife in Australia, but also that they are having a terrible impact on many – too many – lesbian, gay, bisexual, transgender, intersex and queer people.

These comments are being observed in a wide range of areas, including politics, religion and the media – but are especially prevalent on social media, with 92% of respondents witnessing anti-LGBTIQ comments in this medium in 2016.

In fact, social media was the highest-ranked (or equal highest), for all categories of LGBTI and Q, for Aboriginal and Torres Strait Islander LGBTIQ respondents and irrespective of age cohort.

On the other hand, just 3% of survey respondents – or about 1 in every 33 people – had not witnessed homophobia, biphobia, transphobia or intersexphobia on media, social media, politics, religion or public space in the past 12 months.

This is nothing less than shocking, as were the quotes highlighted above (and in the linked document) where people explained in their own words the impact that witnessing anti-LGBTIQ comments has had on their lives. If you are mentally prepared, I encourage you to read them at length.

As noted at the beginning of this post, this has been the third in my series of six articles reporting the results of my ‘The State of Homophobia, Biphobia and Transphobia’ survey.

The remaining three articles, which will focus on discrimination in education, employment and health and other areas, will be published during May[vii].

If you would like to receive updates of these results, please sign up to this blog: on mobile, at the bottom of this page, or on desktop at the top right-hand corner of the screen.

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If this post has raised any issues for you, you can contact:

  • QLife, Australia’s national telephone and web counselling and referral service for LGBTI people. Freecall: 1800 184 527, Webchat: qlife.org.au (3pm to midnight every day)

Footnotes:

[i] The previous posts can be found here:

Part 1: Verbal Harassment and Abuse

Part 2: Physical Abuse or Violence

[ii] According to the ABS, 22% of respondents to the 2011 census indicated they had ‘no religion’, although this figure is expected to rise dramatically in the 2016 census following a change in how this question was asked.

[iii] Note that the percentages for each of these groups will be reduced compared to the overall rates described above, because they are calculated based on the total number of people from that group completing the survey rather than the (lesser) number of people from that group who answered this question.

[iv] Noting that there was a small sample size for intersex respondents (n=20) meaning these percentages should be treated with some caution.

[v] Noting that there was a small sample size for respondents aged 65 and over (n=37) meaning these percentages should be treated with some caution.

[vi] In this context, lightly-edited includes:

-Removing identifying information

-Removing potentially defamatory comments and

-Removing offensive (for example, transphobic) remarks.

I have also corrected some spelling/grammatical mistakes for ease of reading.

[vii] These posts were originally scheduled for April, but have been delayed due to unforeseen circumstances.

An LGBTI Agenda for NSW

Today marks exactly two years until the next NSW State election (scheduled for Saturday 23 March, 2019).

 

Despite the fact we are half-way through it, there has been a distinct lack of progress on policy and law reform issues that affect NSW’s lesbian, gay, bisexual, transgender and intersex (LGBTI) communities during the current term of Parliament.

 

This is in marked contrast to the previous term – which saw the abolition of the homosexual advance defence (or ‘gay panic’ defence), as well as the establishment of a framework to expunge historical convictions for gay sex offences.

 

The parliamentary term before that was even more productive, with a suite of measures for rainbow families (including the recognition of lesbian co-parents, equal access to assisted reproductive technology and altruistic surrogacy, and the introduction of same-sex adoption) as well as the establishment of the registered relationships scheme.

 

With a (relatively) new Premier in Gladys Berejiklian, now is the time for the Liberal-National Government specifically, and the NSW Parliament generally, to take action to remedy their disappointing recent lack of activity.

 

Here are 12 issues, in no particular order, which I believe need to be addressed as a matter of priority – and if Premier Berejiklian won’t fix them in the next 24 months, then they must be on the agenda of whoever forms government in March 2019.

 

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The first four issues relate to the state’s fundamentally broken anti-discrimination laws, with the Anti-Discrimination Act 1977 now one of, if not, the worst LGBTI anti-discrimination regime in the country[i].

 

  1. Include bisexual people in anti-discrimination laws

 

NSW was actually the first jurisdiction in Australia to introduce anti-discrimination protections on the basis of homosexuality, in 1982.

 

However, 35 years later and these laws still do not cover bisexuality – meaning bisexual people do not have legal protection against discrimination under state law (although, since 2013, they have enjoyed some protections under the Commonwealth Sex Discrimination Act 1984).

 

NSW is the only state or territory where bisexuality is excluded. This is a gross omission, and one that the NSW Parliament must rectify urgently.

 

  1. Include intersex people in anti-discrimination laws

 

The historic 2013 reforms to the Commonwealth Sex Discrimination Act 1983 also meant that Australia was one of the first jurisdictions in the world to provide explicit anti-discrimination protection to people with intersex traits.

 

Since then, Tasmania, the ACT and more recently South Australia have all included intersex people in their respective anti-discrimination laws. It is time for other jurisdictions to catch up, and that includes NSW.

 

  1. Remove excessive and unjustified religious exceptions

 

The NSW Anti-Discrimination Act 1977 also has the broadest ‘religious exceptions’ in the country. These legal loopholes allow religious organisations to discriminate against lesbian, gay and trans people in a wide variety of circumstances, and even where the organisation itself is in receipt of state or Commonwealth money.

 

The most egregious of these loopholes allow all ‘private educational authorities’, including non-religious schools and colleges, to discriminate against lesbian, gay and trans teachers and students.

 

There is absolutely no justification for a school – any school, religious and non-religious alike – to be able to fire a teacher, or expel a student, on the basis of their sexual orientation or gender identity.

 

All religious exceptions, including those exceptions applying to ‘private educational authorities’, should be abolished beyond those which allow a religious body to appoint ministers of religion or conduct religious ceremonies.

 

  1. Reform anti-vilification offences

 

NSW is one of only four Australian jurisdictions that provide anti-vilification protections to any part of the LGBTI community. But the relevant provisions of the Anti-Discrimination Act 1977 are flawed in two key ways:

 

  • As with anti-discrimination (described above), they do not cover bisexual or intersex people, and
  • The maximum fine for a first time offence of homosexual or transgender vilification is lower than the maximum fine for racial or HIV/AIDS vilification.

 

There is no legitimate reason why racial vilification should be considered more serious than anti-LGBTI vilification so, at the same time as adding bisexuality and intersex status to these provisions, the penalties that apply must also be harmonised.

 

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The following are four equally important law reform and policy issues for the state:

 

  1. Reform access to identity documentation for trans people

 

The current process for transgender people to access new identity documentation in NSW – which requires them to first undergo irreversible sex affirmation surgical procedures – is inappropriate for a number of reasons.

 

This includes the fact it is overly-onerous (including imposing financial and other barriers), and makes an issue that should be one of personal identification into a medical one. It also excludes trans people who do not wish to undergo surgical interventions, and does not provide a process to recognise the identities of non-binary gender diverse people.

 

As suggested in the Member for Sydney Alex Greenwich’s Discussion Paper on this subject[ii], the process should be a simple one, whereby individuals can change their birth certificates and other documentation via statutory declaration, without the need for medical interference.

 

At the same time, the requirement for married persons to divorce prior to obtaining new identity documentation (ie ‘forced trans divorce’) should also be abolished.

 

  1. Ban involuntary sterilisation of intersex infants

 

One of the major human rights abuses occurring in Australia today – not just within the LGBTI community, but across all communities – is the ongoing practice of involuntary, and unnecessary, surgical interventions on intersex children.

 

Usually performed for entirely ‘cosmetic’ reasons – to impose a binary sex on a non-binary body – this is nothing short of child abuse. People born with intersex characteristics should be able to make relevant medical decisions for themselves, rather than have procedures, and agendas, imposed upon them.

 

The NSW Government has a role to play in helping to end this practice within state borders, although ultimately the involuntary sterilisation of intersex infants must also be banned nation-wide.

 

  1. Ban gay conversion therapy

 

Another harmful practice that needs to be stamped out is ‘gay conversion therapy’ (sometimes described as ‘ex-gay therapy’).

 

While thankfully less common that it used to be, this practice – which preys on young and other vulnerable LGBT people who are struggling with their sexual orientation or gender identity, and uses pseudo-science and coercion in an attempt to make them ‘straight’/cisgender – continues today.

 

There is absolutely no evidence that it works, and plenty of evidence that it constitutes extreme psychological abuse, often causing or exacerbating mental health issues such as depression.

 

There are multiple policy options to address this problem; my own preference would be to make both the advertising, and provision, of ‘conversion therapy’ criminal offences. Where this targets people aged under 18, the offence would be aggravated, attracting a higher penalty (and possible imprisonment)[iii].

 

  1. Improve the Relationship Register

 

As Prime Minister Malcolm Turnbull and his Liberal-National Government continue to dither on marriage equality (despite it being both the right thing to do, and overwhelmingly popular), in NSW the primary means to formalise a same-sex relationship remains the relationships register.

 

However, there are two main problems with the ‘register’ as it currently stands:

 

  • Nomenclature: The term ‘registered relationship’ is unappealing, and fails to reflect the fundamental nature of the relationship that it purports to describe. I believe it should be replaced with Queensland’s adopted term: civil partnership.
  • Lack of ceremony. The NSW relationship register also does not provide the option to create a registered relationship/civil partnership via a formally-recognised ceremony. This should also be rectified.

 

Fortunately, the five-year review of the NSW Relationships Register Act 2010 was conducted at the start of last year[iv], meaning this issue should already be on the Government’s radar. Unfortunately, more than 12 months later no progress appears to have been made.

 

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The following two issues relate to the need to ensure education is LGBTI-inclusive:

 

  1. Expand the Safe Schools program

 

Despite the controversy, stirred up by the homophobic troika of the Australian Christian Lobby, The Australian newspaper and right-wing extremists within the Commonwealth Government, Safe Schools remains at its core an essential anti-bullying program designed to protect vulnerable LGBTI students from harassment and abuse.

 

Whereas the Victorian Government has decided to fund the program itself, and aims to roll it out to all government secondary schools, in NSW the implementation of Safe Schools has been patchy at best, with limited take-up, and future funding in extreme doubt.

 

Whatever the program is called – Safe Schools, Proud Schools (which was a previous NSW initiative) or something else – there is an ongoing need for an anti-bullying program to specifically promote the inclusion of LGBTI students in all NSW schools, and not just those schools who put their hands up to participate.

 

  1. Ensure the PDHPE curriculum includes LGBTI content

 

Contrary to what Lyle Shelton et al might believe, the LGBTI agenda for schools goes far beyond just Safe Schools. There is also a need to ensure the curriculum includes content that is relevant for lesbian, gay, bisexual, transgender and intersex students.

 

One of the key documents that should include this information is the Personal Development, Health and Physical Education (PDHPE) curriculum.

 

The NSW Education Standards Authority is currently preparing a new K-10 PDHPE curriculum. Unfortunately, it does not appear to be genuinely-inclusive of LGBTI students, with only one reference to LGBTI issues (conveniently, all in the same paragraph, on the same page), and inadequate definitions of sexuality/sexual orientation.

 

Fortunately, there is an opportunity to make a submission to the consultation process: full details here. But, irrespective of what the Education Standards Authority recommends, if the PDHPE curriculum does not appropriately include LGBTI students and content, then the Parliament has a responsibility to step in to ensure it is fixed.

 

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The final two issues do not involve policy or law reform, but do feature ‘borrowing’ ideas from our colleagues south of the Murray River:

 

  1. Appoint an LGBTI Commissioner

 

The appointment of Rowena Allen as Victorian Commissioner for Gender and Sexuality appears to have been a major success, bringing together LGBTI policy oversight in a central point whilst also ensuring that LGBTI inclusion is made a priority across all Government departments and agencies.

 

I believe NSW should adopt a similar model, appointing an LGBTI Commissioner (possibly within the NSW Department of Premier and Cabinet), supported by an equality policy unit, and facilitating LGBTI community representative panels on (at a minimum) health, education and law/justice.

 

  1. Create a Pride Centre

 

Another promising Victorian initiative has been the decision to fund and establish a ‘Pride Centre’, as a focal point for the LGBTI community, and future home for several LGBTI community organisations (with the announcement, just last week, that it will be located in St Kilda).

 

If it acted quickly, the NSW Government could acquire the T2 Building in Taylor Square – just metres from where the 1st Sydney Gay Mardi Gras Parade started in June 1978 – before it is sold off by the City of Sydney. This is an opportunity to use this historic site for purposes that benefit the LGBTI community, and including the possible housing of an LGBTI Museum and/or exhibition space.

 

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This is obviously not an exhaustive list. I’m sure there are issues I have forgotten (sorry), and I’m equally sure that readers of this blog will be able to suggest plenty of additional items (please leave your ideas in the comments below).

 

But the most important point is that, if we are going to achieve LGBTI policy and law reform in the remaining two years of this parliamentary term, we need to be articulating what that agenda looks like.

 

And, just as importantly, if we want to achieve our remaining policy goals in the subsequent term – from 2019 to 2023 – then, with only two years left until the next election, we must be putting forward our demands now.

 

Gladys Berejiklian at Mardi Gras

NSW Premier Gladys Berejiklian at the recent Sydney Gay & Lesbian Mardi Gras Parade. It’s time to back up this symbolic display of support with progress on policies and law reform.

 

Footnotes:

[i] For more, see What’s Wrong With the NSW Anti-Discrimination Act 1977.

[ii] See my submission to that consultation, here: Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate.

[iii] For more on both of the last two topics – intersex sterilization, and gay conversion therapy – see my Submission to NSW Parliament Inquiry into False or Misleading Health Practices re Ex-Gay Therapy and Intersex Sterilisation.

[iv] See my submission to that review, here: Submission to Review of NSW Relationships Register Act 2010.

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

Updated 19 January 2017:

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

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

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

Original Post:

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

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

The following is my submission:

Legal Affairs and Community Safety Committee

lacsc@parliament.qld.gov.au

Friday 22 July 2016

To the Committee

Submission re the Health and Other Legislation Amendment Bill 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely

Alastair Lawrie

Wayne Goss

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

What’s Wrong With the NSW Anti-Discrimination Act 1977?

This post is the second[i] in a series looking at anti-discrimination laws around Australia and how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people against discrimination and vilification.

 

This includes analysing three key issues: protected attributes, religious exceptions and anti-vilification coverage. Unfortunately, as we shall see below, the Anti-Discrimination Act 1977 has serious shortcomings in all three of these areas, and NSW has gone from having the first gay anti-discrimination laws in Australia, to having the worst LGBTI anti-discrimination laws in the country.

 

It is clear that this legislation is in urgent need of major reform. What is less clear is whether the current NSW Government, and Parliament, is up to the task.

 

Protected Attributes

 

As indicated above, NSW was the first jurisdiction in Australia to introduce anti-discrimination protections for ‘homosexuals’. In fact, it passed these laws in 1982, two years before homosexuality was decriminalised, meaning that a gay man could not be discriminated against for who he was (in some areas of public life at least), but could still be convicted for having sexual intercourse in private.

 

The problem is that the protected attributes included in the Anti-Discrimination Act 1977 have not kept pace in the decades since. There was one positive clarification in 1994 that “homosexual means male or female homosexual”[ii] (to overcome any erroneous assumption that homosexuality only referred to gay men).

 

However, the only major expansion in the past 34 years has been the introduction of transgender as a protected attribute in 1996:

 

Section 38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person[iii]:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.”

 

While this reform was essential, it nevertheless fails to cover all discrimination on the basis of gender identity. Just as in Victoria, the scope of this protected attribute would appear to focus only on binary genders – covering those people whose sex was designated as male at birth, but now identify as female (and vice versa). It does not cover other people along a more inclusive gender identity spectrum, including people who do not identify as either male or female.

 

Section 38A of the NSW Anti-Discrimination Act 1977 is therefore no longer best practice, and a new, more inclusive definition[iv] should be adopted to ensure all transgender people benefit from anti-discrimination protection.

 

Intersex people are even worse off under the Act. Paragraph (c) of the definition above offers their only protection under NSW law, and, in the same way as Victoria, it is problematic because:

  • It inappropriately conflates intersex status, which relates to physical sex characteristics, with gender identity, and
  • It only appears to protect people with intersex variations where they identify as either male or female.

 

To remedy this situation, a stand-alone protected attribute of ‘intersex status’ should be introduced, potentially based on the world-first protections included in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013[v].

 

There is, however, one section within the LGBTI community that is not included in the NSW Anti-Discrimination Act, not even in an out-dated, fundamentally flawed or only partially-effective way. In fact, one of the five letters of the acronym has no anti-discrimination coverage at all: bisexual people.

 

NSW is the only jurisdiction in Australia where its anti-discrimination laws do not cover discrimination on the basis of bisexuality. That is as bizarre as it is offensive.

 

And it must be remedied at the earliest possible opportunity by the NSW Parliament, with either the introduction of a new stand-alone protected attribute of ‘bisexual’, or (preferably) by the modernisation of the current protected attribute of ‘homosexual’ to instead refer to ‘sexual orientation’, in line with the Commonwealth Sex Discrimination Act 1984[vi].

 

Summary: The protected attributes contained in the NSW Anti-Discrimination Act 1977 are the narrowest in the country, only offering protection to gay men, lesbians, and some transgender people. It needs to be updated to align with the Commonwealth Sex Discrimination Act 1984, with a modern definition of gender identity and a new protected attribute of intersex status. And it must be extended to offer anti-discrimination coverage to bisexual people, whose exclusion is a gross oversight that has been allowed to stand for far too long.

 

**********

 

Religious Exceptions

 

In contrast to its narrowly-defined protected attributes, the religious exceptions included in the NSW Anti-Discrimination Act are in fact the broadest in Australia.

 

These loopholes allow religious organisations to discriminate against lesbian, gay and transgender people in a wide variety of circumstances, and are so generous that they substantially, and substantively, undermine the overall purpose of the legislation (which is supposedly “[a]n Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons”).

 

The main exceptions permitting anti-LG&T discrimination by religious organisations are found in section 56 of the Act:

 

Section 56 Religious bodies

Nothing in this Act affects:

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

(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order,

(c) the appointment of any other person in any capacity by a body established to propagate religion, or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

 

While sub-sections (a) and (b) might appear reasonable, as they are at least related to the internal training and appointment of ministers of religion, sub-sections (c) and especially (d) are outrageous in their breadth, essentially sanctioning discrimination against lesbian, gay and transgender employees and people accessing services in any organisation that is considered ‘religious’, including schools, hospitals and countless social services.

 

The operation of these provisions, and sub-section 56(d) in particular, in giving effective carte blanche to religious organisations to discriminate on the basis of sexual orientation and gender identity in NSW was confirmed in a 2010 decision of the Court of Appeal[vii], allowing Wesley Mission to discriminate against a male same-sex couple who had applied to be foster carers to children in need.

 

Wesley successfully defended its prejudiced approach on the basis that; “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal.”[viii] This was in spite of the fact Wesley allowed single men and women to be carers (apparently they believed that two dads or two mums had less to offer than one).

 

The ‘right to discriminate’ provided to religious organisations by section 56 of the NSW Anti-Discrimination Act 1977 is essentially without restriction. And this general ability to exclude lesbian, gay and transgender people in NSW is supplemented by additional loopholes covering specific areas of public life.

 

One of these covers discrimination in adoption services. While the equal right of same-sex couples to adopt was recognised in NSW law in 2010, those very same reforms inserted the following into the Anti-Discrimination Act 1977:

 

Section 59A Adoption services

(1) Nothing in Part 3A [transgender protections] or 4C [homosexual protections] affects any policy or practice of a faith-based organisation concerning the provision of adoption services under the Adoption Act 2000 or anything done to give effect to any such policy or practice.”

 

Which means that a religious organisation that operates an adoption service is legally permitted to deny a child the best possible adoptive parents solely because they might be lesbian, gay or transgender.

 

Perhaps the most (in)famous exceptions in the Act are those that apply to ‘private educational authorities’[ix]. Even though subsection 56(d) already allows religious schools to do whatever they want in relation to lesbian, gay and transgender teachers and students, NSW Parliament added specific clauses to ensure that private educational authorities can:

 

  • Discriminate against transgender employees[x]
  • Discriminate against transgender students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xi]
  • Discriminate against lesbian and gay employees[xii] and
  • Discriminate against lesbian and gay students, including by refusing their admission, attaching conditions to their admission, denying them benefits as a student, or by expelling them[xiii].

 

Imagine considering it justified to seek special rights to discriminate against these groups, let alone for State Parliament to condone such discrimination via legislation?

 

Perhaps the most extraordinary part of the ‘private education authorities’ exceptions is that they aren’t even restricted to religious schools – in fact, the Anti-Discrimination Act 1997 allows all non-government schools and colleges, even where they have absolutely nothing to do with religion, to refuse to employ lesbian, gay and transgender people, and exclude or expel LG&T students.

 

Summary: The religious exceptions contained in the NSW Anti-Discrimination Act 1977 are the broadest in Australia, and fundamentally undermine the integrity of a framework which is supposed to address discrimination on the basis of sexual orientation and gender identity. Subsections 56(c) and (d) should be repealed, as well as the more specific exceptions offered to religious organisations in relation to adoption services, and those allowing private educational authorities to discriminate against lesbian, gay and transgender employees and students.

 

**********

 

Anti-Vilification Coverage

 

There is one area where NSW is at least somewhat ahead of other jurisdictions, and that is in its inclusion of anti-vilification protections for the LGBTI community – or some parts of it anyway, given, just as for anti-discrimination protections, its anti-vilification laws only covers lesbian, gay and some transgender people.

 

The NSW Anti-Discrimination Act 1977 creates offences of serious transgender vilification[xiv], and serious homosexual vilification[xv]. These offences are based on, and drafted using the same wording as, the offence of serious racial vilification[xvi]:

 

“A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person [or group of persons on the ground of the race of the person or members of the group/on the ground that the person is a transgender person, or a group of persons on the ground that the members of the group are transgender persons/or group of persons on the ground of the homosexuality of the person or members of the group] by means which include:

(a) threatening physical harm towards, or towards any property of, the person or group of persons, or

(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

 

And yet, despite having the same wording, and involving exactly the same legal tests, the offences have different penalties:

 

  • The maximum penalty for the offence of serious racial vilification by an individual is “50 penalty units or imprisonment for 6 months, or both”, whereas
  • The maximum penalty for the offences of serious transgender vilification and serious homosexual vilification is “10 penalty units or imprisonment for 6 months, or both.”

 

There can be no justification for treating these offences differently – indeed, the unavoidable implication of imposing a higher fine for one type of vilification than another is that some types of vilification are more serious than others and therefore require greater punishment. Given homophobia, biphobia, transphobia and intersexphobia are just as dangerous, and just as harmful, as racial vilification, that is simply not true.

 

There isn’t even a plausible defence that this discrepancy arose inadvertently – while the penalty for racial vilification was increased in 1994, which was after the offence of serious homosexual vilification had been created, transgender vilification provisions were introduced later still (in 1996), which means Parliament actively chose to introduce a lower penalty for it compared to racial vilification.

 

As well as introducing new vilification protections covering bisexual and intersex people, the NSW Government must harmonise these provisions. Fortunately, as part of its response to the State Parliamentary Inquiry into Racial Vilification, NSW Attorney-General Gabrielle Upton MP has publicly committed, via twitter, that:

 

“#NSWGovt intends to ensure ADA offences for serious vilification are consistent across the board #nswpol”[xvii]

Gabrielle Upton MP

NSW Attorney-General, Gabrielle Upton MP

The Baird Liberal-National Government has in fact committed to release an exposure draft Bill to reform vilification law in NSW ‘in early 2016’. It is possible that public consultation on this Bill has been delayed (given the Australian Christian Lobby’s current crusade against state and territory anti-vilification laws in anticipation of a potential marriage equality plebiscite), although hopefully any such delay is short.

 

Summary: NSW is one of only four Australian states and territories that have anti-vilification protections covering any part of the LGBTI community. However, not only do they not protect bisexual or intersex people from vilification, the penalties imposed for homosexual and transgender vilification offences are different to, and less than, those imposed for racial vilification. The upcoming exposure draft Bill on vilification law, to be released by the State Government, must address both of these injustices: expanding its scope, and harmonising penalties.

 

**********

 

Other Issues

 

While the ‘What’s Wrong With’ series will primarily concentrate on the three main areas of protected attributes, religious exceptions and anti-vilification coverage, I will also raise other issues relating to LGBTI anti-discrimination laws where they are significant.

 

In the case of the NSW Anti-Discrimination Act 1977, these include:

 

  • An incredibly broad exception allowing “the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies”[xviii]
  • A seemingly inappropriate exception allowing superannuation funds to “treat… the transgender person as being of the opposite sex to the sex with which the transgender person identifies”[xix] and
  • Perhaps most alarmingly, exceptions which allow employers to discriminate against lesbian, gay and transgender applicants and employees “if the number of persons employed by the employer… does not exceed 5”[xx].

 

In fact, a similar exception also permits discrimination in relation to the ground of sex[xxi] – but no such limitation applies to race[xxii].  Which means that the NSW Parliament has effectively determined that racial discrimination should not be tolerated in employment in any circumstances – but discrimination against lesbians, gay men, transgender people and even women is acceptable in some circumstances. That message is unconscionable, and these provisions must be made uniform (by abolishing the exceptions applying to homosexual, transgender and sex discrimination in employment).

 

**********

 

In conclusion, it is clear that, while NSW once had the first gay anti-discrimination laws in Australia, it now has the nation’s worst LGBTI laws – with significant problems in terms of protected attributes and religious exceptions, and serious shortcomings where it does have anti-vilification coverage. These, and other, issues must be addressed by the Baird Liberal-National Government, and NSW Parliament more broadly, as a matter of priority.

 

 

[i] The first, published in January 2016, looked at Victoria: What’s Wrong With the Victorian Equal Opportunity Act 2010?

[ii] Section 4 Definitions.

[iii] From section 4: “recognised transgender person means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.”

[iv] Potentially modelled on the definition adopted by the Commonwealth Sex Discrimination Act 1984: “gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.” [Although obviously exact wording should be agreed with NSW’s transgender community.]

[v] Section 4 of the Sex Discrimination Act 1984 now includes: “intersex status means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.”

[Again, the final wording of the new definition would need to be agreed in consultation with NSW’s intersex community.]

[vi] Section 4 of the Sex Discrimination Act 1984 states ““sexual orientation” means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

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

[vii] OV & OW v Members of the Board of the Wesley Council [2010] NSWCA 155 (6 July 2010).

[viii] OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

[ix] Defined in section 4 as “private educational authority means a person or body administering a school, college, university or other institution at which education or training is provided, not being:

(a) a school, college, university or other institution established under the Education Reform Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or

(b) an agricultural college administered by the Minister for Agriculture.”

[x] Section 38C prohibits discrimination against transgender applicants and employees, but subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xi]Section 38K Education

(1) It is unlawful for an educational authority to discriminate against a person on transgender grounds:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on transgender grounds:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xii] Section 49ZH prohibits discrimination against lesbian and gay applicants and employees, but, just like for transgender people, subsection (3)(c) clarifies that this prohibition does not apply to discrimination by private educational authorities.

[xiii]Section 49ZO Education

(1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:

(a) by refusing or failing to accept the person’s application for admission as a student, or

(b) in the terms on which it is prepared to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:

(a) by denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or

(b) by expelling the student or subjecting the student to any other detriment.

(3) Nothing in this section applies to or in respect of a private educational authority.”

[xiv] Section 38T.

[xv] Section 49ZTA.

[xvi] Section 20C.

[xvii] See Ms Upton’s tweet reproduced here: Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

[xviii] Section 38P. It is hoped that, given the work in recent years by transgender groups, the Australian Human Rights Commission and Australian sporting organisations, these provisions could be amended if not repealed entirely in future years.

[xix] Section 38Q. I am genuinely interested to know what the policy rationale is for such a provision – if people have information about this, please write a comment, below.

[xx] Included in both sub-sections 38C(3)(b) and 49ZO(3)(b).

[xxi] Section 25(3)(b).

[xxii] Section 8, which covers Discrimination against applicants and employees on the ground of race, does not include any exception based on the number of employees that an employer has.

Will NSW Reforms Prioritise Racial Vilification at the Expense of LGBTI Vilification?

Post Update #3: 12 January 2017

Contrary to the response received from the Department of Justice in November 2015 (included below), and commitments given by Attorney-General Gabrielle Upton in October 2015, the NSW Government did not release an Exposure Draft Bill to reform vilification laws in early 2016.

In fact, as noted by the Sydney Morning Herald in November 2016: “NSW Parliament has risen for the year without any action on reforms promised by the NSW Attorney-General to ethnic communities a year ago to make it easier to prosecute serious racial vilification cases in the state.”

That means there has been an entire year of inaction on much-needed reforms to vilification laws, that would have not only strengthened racial vilification laws, but also harmonised provisions across the different grounds for vilification (including homosexual, transgender and HIV/AIDS vilification).

This inaction is incredibly disappointing given that same 12-month period has seen a wide range of homophobic and transphobic public debate in NSW, and across Australia (see 2016: Annus Homophobicus). Hopefully 2017 will see this situation change – although, based on the past year, I certainly won’t be holding my breath.

 

Post Update #2: 23 December 2015

I received the following response to my letter (below) on 19 November 2015, not from the Attorney-General Ms Upton, but instead from the Director of the Community Relations Unit in the Department of Justice [and apologies for the delay in posting before now]:

“I refer to your email to the Attorney General, the Hon Gabrielle Upton MP, about your concerns regarding a review of the NSW racial vilification laws. The Attorney General has asked me to reply on her behalf.

NSW is one of the most culturally, linguistically and religiously diverse
communities in the world. To protect the diversity of our community, the
Government has committed to amending the Anti-Discrimination Act 1977 (the Act), in particular the racial vilification laws.

Currently, the vilification offences make it clear that for vilification to
be an offence it must threaten violence or incite others to threaten
violence.

As you are aware, the New South Wales Legislative Council’s Law and Justice Committee conducted a review of racial vilification laws in New South Wales, in particular section 20D of the Act.

Section 20D of the Act makes it a criminal offence to incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of
persons on the grounds of race by means which include; threatening physical harm towards, or towards any property of, the person or group of persons, or inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

In its Report, the Committee concluded that improvements were required to the Act. These improvements include allowing the President of the
Anti-Discrimination Board to refer complaints directly to the NSW Police,
extending the time limit for commencing prosecutions from six months to 12 months and clarifying reckless actions are sufficient to establish an
intention to incite under section 20D.

In light of the Committee’s Report, the NSW Government considers the racial vilification offence and other vilification offences relating to
homosexuality, HIV/AIDS status and transgender status in the Act also need revising.

The Government intends to release for public consultation an exposure draft Bill amending the State’s vilification laws, with legislation to be
introduced into Parliament in the first half of 2016. Details regarding the
draft exposure Bill will be released in early 2016.

Thank you for taking the time to write about this issue.

Yours faithfully

Director
Community Relations Unit
NSW Department of Justice”

 

Post Update #1: 1 November 2015

The NSW Attorney-General, the Hon Gabrielle Upton MP, announced the NSW Government’s position of vilification reforms on Monday 19 October 2015.

According to the Sydney Morning Herald[i]:

“The government will overhaul hate speech laws in NSW following the terror attack at Parramatta police headquarters and calls from the opposition for stronger laws to clamp down on ‘radical preachers’.

Attorney-General Gabrielle Upton said the government will strengthen and streamline racial vilification laws, defying right-wing commentators who have previously said proposed reforms were ‘straight out of the Leninist playbook.’

Ms Upton said recent events had ‘reinforced the necessarily of being vigilant to and guarding against the spread of racial vilification’.”

Importantly, the Guardian[ii] also reported that “LGBTIQ groups have been lobbying for hate speech against members of their communities to be included in any new laws and it is understood the proposed changes would include them” although it did not provide any further information on this issue.

I sought clarification through twitter from the Attorney-General on the inclusion, or exclusion, of LGBTI vilification in the reforms, and received the following reply:

IMG_0640

This response obviously gives hope that vilification provisions contained in the Anti-Discrimination Act 1977 may finally be amended to be genuinely LGBTI inclusive, although it will be important to closely scrutinise the Government’s exposure draft Bill, which is expected to be released for public consultation in January 2016.

One final cause for optimism – on the day before Attorney-General Upton’s announcement, the Leader of the NSW Opposition, Luke Foley, made a similar commitment on vilification reform. As reported by samesame[iii]:

“The Labor opposition in New South Wales wants to ensure people who promote or advocate violence based on race, gender or sexual orientation are punished under the law.”

All we need to do now is hold both the Liberal-National Government, and Labor Opposition, to their public commitments.

[i] “Hate speech overhaul to try to spread of racial vilification”, Sydney Morning Herald, 19 October 2015: http://www.smh.com.au/nsw/hate-speech-overhaul–to-try-to-stop-spread-of-racial-vilification-20151018-gkbukb.html

[ii] “New South Wales hate speech laws to clamp down on ‘violent extremists’”, The Guardian, 19 October 2015: http://www.theguardian.com/australia-news/2015/oct/19/new-south-wales-hate-speech-laws-to-clamp-down-on-violent-extremists

[iii] “NSW Opposition: ‘Hate speech should be a crime’”, samesame, 19 October 2015: http://www.samesame.com.au/news/12884/NSW-opposition-Hate-speech-should-be-a-crime

 

Original Post: 16 October 2015

The Hon Gabrielle Upton MP

Attorney-General

GPO Box 5341

Sydney NSW 2001

office@upton.minister.nsw.gov.au

Friday 16 October 2015

Dear Attorney-General

REFORMS TO NSW ANTI-VILIFICATION LAWS

I am writing to you on the subject of possible changes to anti-vilification laws in the Anti-Discrimination Act 1977(‘the Act’), as flagged by you in two tweets on 18 September 2015[i], and as confirmed in an article which appeared in The Australian on 23 September 2015, in which your spokesperson “said the NSW government was ‘working towards reform’ in the area”.[ii]

Specifically, I am writing to seek your assurance that any reforms to anti-vilification laws will apply equally across all grounds of vilification, including homosexual, transgender and HIV vilification which are also included in the Act, and will not prioritise racial vilification as more important, or worthy of punishment, than vilification on the basis of other attributes.

Instead, I urge you and the Liberal-National Government to ensure that anti-vilification laws apply fairly both to members of NSW’s ethnic communities, and to the state’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

To begin with, I note that currently the provisions of the Anti-Discrimination Act only protect lesbian, gay[iii] and transgender[iv] members of the LGBTI community. There is no legal protection for bisexual and intersex people against vilification on the basis of who they are (or against discrimination more broadly, for that matter).

If reforms are to be made to anti-vilification laws in NSW, then the specific inclusion of bisexual and intersex people in the Act must be a priority.

Even more concerningly, I note that there is a discrepancy in the penalties for vilification which are contained in the Act, depending on the attribute which is involved.

For example, while the maximum penalty for homosexual and transgender vilification by an individual is set at “10 penalty units or imprisonment for 6 months, or both”[v], the penalty for racial or HIV vilification by an individual is set at “50 penalty units or imprisonment for 6 months, or both.”[vi]

Given the vast majority of prosecutions for vilification offences in NSW are unlikely to result in imprisonment, the consequence of this discrepancy is to send the message to the community, whether intentionally or otherwise, that racial and HIV vilification is five times more important, or worthy of punishment, than homosexual or transgender vilification.

I find this message to be inherently offensive – that equivalent acts of vilification should attract differing penalties simply because it involved sexual orientation or gender identity rather than race. I sincerely hope that you agree – and that you will therefore commit to harmonising the penalties for vilification contained in the Act.

However, I am concerned that, rather than ameliorating existing problems, the reforms to NSW’s anti-vilification laws which you have indicated you are considering will instead compound the differential treatment of racial vilification compared to homosexual or transgender vilification.

That is because these reforms appear to be based primarily on the recommendations of the 2013 Legislative Council Standing Committee on Law and Justice Inquiry into Racial Vilification Law in New South Wales.[vii]

This Inquiry made a number of recommendations to amend racial vilification laws, including to:

  • Include “quasi-public places, such as the lobby of a strata or company title apartment block” (Recommendation 1)
  • Clarify that “recklessness is sufficient to establish intention to incite” (Recommendation 3)
  • “[R]eview the adequacy of the maximum penalty units in section 20D of the Anti-Discrimination Act 1977, taking into account the maximum penalty units for comparable offences within the Crimes Act 1900 and other Australian jurisdictions” (Recommendation 6)
  • “[R]epeal the requirement for the Attorney-General’s consent to prosecutions of serious racial vilification” (Recommendation 7)
  • Extend the time limits for commencing prosecutions for racial vilification offences to 12 months, or alternatively to extend the timeframe for the President of the Anti-Discrimination Board to refer complaints to the Attorney-General (Recommendations 9, 10)
  • “[A]llow the President of the Anti-Discrimination Board of NSW to directly refer serious racial vilification complaints to the NSW Police Force” (Recommendation 11) and
  • Provide training to NSW Police Force members about the offence of serious racial vilification (Recommendation 14).[viii]

It is arguable that the inquiry itself was flawed from the beginning given it focused on only one out of the four existing grounds of vilification in the Act.

However, what is beyond doubt is that, were you to adopt the recommendations of this Inquiry as a whole, but only with respect to racial vilification, you and the Liberal-National Government would in effect be creating a discriminatory ‘hierarchy’ of vilification laws and procedures in NSW law.

The offences of racial and homosexual vilification are drafted in exactly the same way – the only difference being substitution of the word homosexuality for race.[ix]

In which case, there cannot be any justification for the introduction and passage of laws which would mean that only racial vilification applies in quasi-public places, or includes recklessness, or attracts higher penalties, or does not need Attorney-General approval to commence proceedings, or has longer timeframes for prosecution, or can be directly referred to Police, or for which NSW Police Force members are specifically trained.

Therefore, the implementation of these reforms, if applied exclusively to racial vilification, would be both discriminatory and unjustifiable.

However, what would make them repugnant is the fact that the Standing Committee on Law and Justice’s own rationale for at least one of its recommendations – to extend the time limits for commencing prosecution of vilification offences to 12 months – is in fact based on a case of alleged homosexual vilification. As discussed in Chapter 6 of the Committee Report:

“6.20 The Board referred to a recent case involving homosexual vilification, Simon Margan v Director of Public Prosecutions & Anor [2013] NSWSC 44, which illustrated the potential issues surrounding the timeframe for lodging vilification complaints. In that case, Mr Margan lodged a complaint with the Anti-Discrimination Board of NSW within the 12 month timeframe required under s89B of the Anti-Discrimination Act. However the Director of Prosecutions (DPP), and later the Supreme Court, dismissed the offence as statute barred as it was a summary offence and proceedings were required to be commenced within six months.

Committee comment

6.21 The Committee understands that there is a significant discrepancy between the timeframes for lodging complaints under s89B of the Anti-Discrimination Act (12 months of an incident occurring) and s179 of the Criminal Procedure Act 1986 (summary offences must commence within six months of an incident occurring). The case of Simon Margan v Director of Public Prosecutions & Anor highlighted the injurious impact that this discrepancy can have on vilification complaints.

6.22 It appears sensible to align the above timeframes. Therefore the Committee recommends that the NSW Government extend the time limit for prosecutions under section 179 of the Criminal Procedure Act to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act.”[x]

And yet, despite noting the ‘injurious impact’ of the discrepancies in time limits on Mr Margan, whose complaint was based on homosexual vilification, the Committee’s recommendation was explicitly restricted to racial vilification:

Recommendation 9

That, for the purposes of racial vilification proceedings only [emphasis added], the NSW Government extend the time limit for commencing prosecutions under section 79 of the Criminal Procedure Act 1986 to 12 months to be consistent with the time limit for lodging complaints under section 89B of the Anti-Discrimination Act 1977.”[xi]

If you and the Liberal-National Government were to implement Recommendation 9 as it stands then you would only be adding insult to injury.

For all of the reasons outlined above, I urge you to ensure that any reforms which you make to the anti-vilification laws contained in the Anti-Discrimination Act treat vilification equally across all grounds, and do not unjustifiably, and above all unjustly, prioritise racial vilification offences and discriminate against homosexual, transgender and HIV vilification protections.

Finally, if you are serious about modernising the vilification provisions contained in the Act you should also expand the grounds covered to offer vilification protection to bisexual and intersex people for the first time (and indeed to provide them with anti-discrimination coverage too), and to remove the existing discrepancies in penalties between racial and HIV vilification offences on the one hand, and homosexual and transgender vilification offences on the other.

Thank you in advance for taking my correspondence into consideration. Should you require additional information, or wish to clarify any of the above comments, please do not hesitate to contact me at the details provided below.

Sincerely

Alastair Lawrie

NSW Attorney-General the Hon Gabrielle Upton MP

NSW Attorney-General the Hon Gabrielle Upton MP

[i] Gabrielle Upton MP (@gabrielleupton), 8:55am – 18 Sep 2015: “.@shumba60 Racial vilification abhorrent. NSW Govt considering proposed changes to streamline/strengthen race hate laws @mikebairdMP #nswpol”

Gabrielle Upton MP (gabrielleupton), 3:39pm – 18 Sep 2015: “.@VicAlhadeff #NSWGovt wants inclusive, diverse comm. Considering changes to streamline/strengthen race hate laws @NSWJBD @ajnnews #nswpol”

[ii] “Taunts to Trigger Race-Hate Law Overhaul”, The Australian, September 23 2015: http://www.theaustralian.com.au/national-affairs/state-politics/taunts-to-trigger-race-hate-law-overhaul/story-e6frgczx-1227539272920?sv=64dde3a02ebcfb4c634183c907bbeacf

[iii] Sub-section 49ZT(1) Homosexual vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.”

[iv] Sub-section 38S(1) Transgender vilification unlawful “It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons.”

[v] S49ZTA(1)(b), s38T(1)(b)

[vi] S20D(1)(b), s49ZXC(1)(b)

[vii] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013: https://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/E08D4387100A3C56CA257C35007FCC4D?open&refnavid=x

[viii] Ibid, pp xii-xiii.

[ix] S20D Offence of serious racial vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

S49ZTA Offence of serious homosexual vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.”

[x] “Racial Vilification Law in New South Wales – Final Report”, 3 December 2013, pp84-85.

[xi] Ibid, p85.

Letter to Bruce Notley-Smith re Baird Liberal-National Government Commitments on NSW Anti-Discrimination Act 1977

Mr Bruce Notley-Smith MP

80 Bronte Road

Bondi Junction NSW 2022

coogee@parliament.nsw.gov.au

Sunday 1 March 2015

Dear Mr Notley-Smith

REVIEW OF NSW ANTI-DISCRIMINATION ACT 1977

I am writing as an attendee at the recent #rainbowvotes forum, where five Members of Parliament from across the political spectrum, including yourself, outlined their respective approaches to lesbian, gay, bisexual, transgender and intersex (LGBTI) issues ahead of the upcoming NSW State Election.

Specifically, I am seeking clarification of your answers concerning the NSW Anti-Discrimination Act 1977 and what action you, and the Liberal-National Government, will take if you are re-elected.

At the forum, the representative attending on behalf of the NSW Labor Opposition, Ms Penny Sharpe MLC, gave a clear commitment that, if elected, a Foley Labor Government would undertake a formal review of the Anti-Discrimination Act 1977.

Following that clear commitment, you made several comments that appeared to indicate your personal support for such an approach.

However, later during the same forum, you indicated that you were appearing at the forum in your capacity as an individual MP only, and not as a spokesperson for the current Baird Liberal-National Government.

As a result, I sought clarification from you, via twitter, whether it is indeed NSW Liberal policy to support a formal review of the Anti-Discrimination Act 1977.

Given I have not received a response via social media, I am now writing to you more formally, with essentially the same question: is the Baird Liberal-National Government committed to reviewing the Anti-Discrimination Act 1977 if it is re-elected on Saturday 28 March 2015?

As I have written previously (see: https://alastairlawrie.net/2015/02/20/questions-for-mps-and-candidates-during-sydney-gay-lesbian-mardi-gras/ ), I believe the NSW Anti-Discrimination Act 1977 is now the worst LGBTI anti-discrimination legislation in Australia.

This is because:

  • It fails for protect bisexual people from discrimination (the only jurisdiction in the country to do so)
  • It fails to protect intersex people from discrimination
  • The religious exceptions in sub-section 56(d) are the broadest in Australia
  • The exceptions allowing all private schools to discriminate against lesbian, gay and transgender students are abhorrent
  • It fails to protect both bisexuals and intersex people from vilification and
  • The maximum individual fine for lesbian, gay and transgender vilification is only one-fifth of the maximum fine for racial vilification.

For all of these reasons, I believe that the Anti-Discrimination Act 1977 should be amended as a matter of priority.

However, if you are unable to give a clear commitment that a re-elected Baird Liberal-National Government would make changes to these provisions, I submit that, at the bare minimum you, and the Government, should be able to commit to holding a formal review of this narrow and out-dated legislation.

Given there are now less than four weeks left until polling day, I would appreciate a response to this letter, outlining what commitments (if any) the Liberal-National Government is prepared to make in this area, at your earliest convenience.

I have also copied the Premier, the Hon Mike Baird MP, and the Attorney-General, the Hon Brad Hazzard MP, into this correspondence.

Thank you in advance for you consideration of the issues raised in this letter.

Sincerely,

Alastair Lawrie

cc: The Hon Mike Baird MP, NSW Premier

GPO Box 5341

Sydney NSW 2001

The Hon Brad Hazzard MP, NSW Attorney-General

GPO Box 5341

Sydney NSW 2001

office@hazzard.minister.nsw.gov.au

Will Liberal Member for Coogee, Bruce Notley-Smith, be able to provide a clear commitment to review the Anti-Discrimination Act 1977?

Will Liberal Member for Coogee, Bruce Notley-Smith, be able to provide a clear commitment to review the Anti-Discrimination Act 1977?