Discrimination Under the Cover of Corona

Coronavirus. SARS-CoV-2. COVID-19. Whatever you call it, it has been the biggest single story of this century (so far). Challenging health systems, governments, economies and communities – its dominance of the news cycle has overshadowed all other issues.

Of course, that does not mean those other challenges have gone away – especially climate change. Indeed, many existing problems have been exacerbated by, or exacerbated the negative impact of, coronavirus, including wealth inequality. Discrimination has sadly also been turbo-charged by the virus, with many disturbing examples of anti-Chinese and anti-Asian racism reported during the past few months.

But, as an LGBTI advocate, it is another type of mistreatment I want to focus on here: discrimination on the basis of sexual orientation and/or gender identity. While less prominent to date in comparison to racism, I am concerned about a potential outbreak of anti-LGBT discrimination under the cover of corona, in at least three ways:

  1. Discrimination in employment

Even with the Government’s temporary JobKeeper program, Australia’s unemployment numbers are expected to at least double between March and June 2020. We could see more than 1,000,000 people permanently lose their jobs in this period alone (not to mention many more who will have their hours, or pay – or often both – reduced).

While in many workplaces, the entire staff will be terminated, elsewhere employers will keep on some employees while dismissing others. With this process happening across so many businesses, small and large, and across so many sectors, simultaneously, it is inevitable some will (ab)use this opportunity to sack people for illegitimate reasons, including bosses firing LGBT workers simply because of who they are.

Even where homophobia, biphobia and transphobia are not ‘explicit’ in this way, some employers may take irrelevant factors into consideration in making their decisions – such as whether the employee has a partner, whether that partner is also employed, and whether they have children to support. Such discrimination, on the basis of marital or relationship status, or family responsibilities, is likely to disproportionately harm LGBT employees.[i]

For a variety of reasons, we will likely never know the full extent of anti-LGBT discrimination in employment during this crisis – although it should be noted the Sydney Morning Herald is already reporting that:

‘The number of workers raising issues with unfair dismissals has surged because of the coronavirus shutdown, with 65 per cent more employees bringing cases to the national industrial tribunal last month [April] than the same time last year.’ 

  1. Discrimination in service delivery

One serious problem highlighted by the coronavirus crisis has been the ‘hollowing out’ of governments, at all levels, and corresponding outsourcing of what should be public services to the private sector.

In particular, a disturbingly high proportion of essential social services in Australia are now delivered by religious organisations, despite usually using public monies. This includes housing and emergency accommodation, community support, food and even healthcare.

At a time when many Australians will be accessing these services for the first time, lesbian, gay, bisexual and transgender people will have the additional worry of whether such faith bodies will refuse to serve them, or treat them differently to cisgender heterosexual people in the same circumstances.

This is not to suggest that all or even most of these religious organisations will engage in homophobic, biphobic or transphobic discrimination – but some of these services inevitably will, to the detriment of LGBT Australians when they are at their most vulnerable.

  1. Anti-LGBT vilification

The third potential outbreak which concerns me is anti-LGBT vilification. That is, attacks on lesbian, gay, bisexual and transgender individuals – and the LGBT community more broadly – claiming that we are somehow responsible for promulgating the coronavirus, or deserving of infection because of our supposed ‘sinful lifestyles’.

This is not a hypothetical fear, either. At the start of April, Melbourne Jewish radio station J-AIR broadcast the following homophobic and transphobic comments from a Rabbi Kessin:

‘And basically he’s [god’s] 98% finished, that’s how close we are to redemption. Therefore god wants to do is bring the redemption. However, there are certain problems that must be addressed by god in order for the redemption to actually happen. And what we begin to see is that the pandemic is an exact designer drug, if you want to use that expression, that will remove these problems.

Ah, in other words, the plague itself is a vehicle, is an instrument, to accelerate the messianic process by removing these major problems. What are they? You see. So therefore what we see is the following.

The first major problem is that man has corrupted his nature. There is a tremendous amount of, ah, what’s called immorality in the world today. It’s widespread. There’s, in Hebrew it’s called “prichus”. We want, we could say it’s also in the form of homosexuality, and gays and so on and so forth, where all of a sudden the gender differentiation is, is tremendously blurred. So that is an incredible corruption of man’s nature.’

There are, obviously, strong echoes of the homophobic vilification endured by the gay and HIV-positive community as part of the HIV/AIDS epidemic. And we learnt from that experience that more bigots will emerge in the months ahead claiming that coronavirus is ‘divine punishment’ of the LGBT community for having the temerity to exist.

These three risks – anti-LGBT discrimination in employment, and service delivery, and anti-LGBT vilification – demonstrate the importance of robust anti-discrimination and vilification protections. Unfortunately, they also reveal serious weaknesses in Australia’s existing anti-discrimination and vilification framework, in at least four ways:

  1. Onus on complainants

Australia’s anti-discrimination laws are primarily complaint-based, which means responsibility falls on the victims of discrimination to pursue justice against their discriminator(s).

This is a problem at the best of times. That includes because of the usual significant power imbalances involved: between employee and employer; member and group; individual accessing services and service delivery organisation; customer and business; and more.

The burden of making a discrimination complaint should also not be underestimated, including the cost in both time and resources (such as obtaining legal advice, which can be costly), as well as the impact on mental health through stress. It is no surprise that many people who experience discrimination ultimately choose not to lodge a complaint.

And of course the coronavirus crisis means now is far from the best of times. Power imbalances are exacerbated, financial and other stresses already heightened. Even where LGBT Australians experience unequivocal discrimination, the problems of a complaint-based system mean they may not exercise their legal rights but instead focus on more immediate concerns (like where they are going to live, and how they will pay for food, electricity and other essentials).

Now more than ever our anti-discrimination laws should be improved by making it easier for organisations, such as trade unions, to make representative complaints on behalf of vulnerable individuals, as well as strengthening the powers of bodies like the Australian Human Rights Commission and its state and territory equivalents to investigate instances of discrimination even in the absence of individual complainants.

  1. Difficult to prove

Even where a victim of discrimination does choose to lodge a formal complaint, it can sometimes be difficult to prove, at least to the required legal standard.

This will not come as a surprise to most LGBT Australians – or indeed to members of other minority groups in the community. Almost all of us will have experienced multiple instances of mistreatment, where you know without a doubt that your sexual orientation, or gender identity, or sex, or race, or disability, or combination of these, is the motivation – while also knowing it would difficult to establish without an explicit admission by the perpetrator.

The coronavirus crisis, and the associated economic crisis, will only worsen this problem, with employers able to say they abandoned usual procedures because of the scale and speed of the challenge they were facing (and the potential they are given the benefit of the doubt in many circumstances, too). This doesn’t mean there was no discrimination – but it could make already high barriers even harder to overcome for the victims.

  1. Religious exceptions

Regular readers of this blog would be well aware of this major flaw in Australians LGBT anti-discrimination laws. Specifically, under the Commonwealth Sex Discrimination Act 1984, and Fair Work Act 2009 (Cth), and the anti-discrimination laws of most state and territories (other than Tasmania’s best practice Anti-Discrimination Act 1998), it is entirely lawful for religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.[ii]

This means that it is legal for a faith-based homeless service in Sydney to deny shelter to someone because they are lesbian, or for a religious-run welfare service in Melbourne to reject a client because they are trans. It also means these organisations can refuse to hire, or even fire, employees because of their sexual orientation or gender identity – which is especially concerning when these bodies may be given more public funding to address the challenges of the next 12 to 18 months, making them one of the few places actually hiring.

In order for lesbian, gay, bisexual and transgender Australians to enjoy the same employment opportunities, and receive the same level of support, as everyone else, religious exceptions to anti-discrimination laws must be repealed.

  1. Gaps in vilification protections

The fourth serious weakness in our current legislative framework is the fact that only a minority of jurisdictions protect LGBT people against vilification. The biggest gap is obviously at Commonwealth level, where there remains no sexual orientation or gender identity equivalent of section 18C of the Racial Discrimination Act 1975.

But there is also no anti-LGBT vilification coverage in Victoria[iii] (meaning the earlier comments on a Melbourne Jewish radio station were likely lawful), or in Western Australia, South Australia or the Northern Territory.

Even where vilification protections exist, their coverage is sometimes incomplete. For example, civil prohibitions on vilification in the NSW Anti-Discrimination Act 1977 only protect lesbians and gay men, and binary transgender people.[iv] Bisexuals, non-binary and intersex people need not apply (or complain).

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These four problems, with Australia’s LGBTI anti-discrimination and anti-vilification laws, are obviously major. But they do not mean all such legal claims will be unsuccessful – merely that people should be aware of the potential pitfalls along the complaints journey that awaits them.

I should also be clear that this isn’t legal advice, either – after all, I am not currently a practising lawyer. However, if you are lesbian, gay, bisexual, transgender or intersex and do experience discrimination or vilification, and are considering your options, there are places where you can seek advice. These include:

The Inner-City Legal Centre in Sydney

The LGBTIQ Legal Service in Melbourne

The LGBTI Legal Service in Brisbane

The HIV/AIDS Legal Centre in Sydney

Or you could contact the local Community Legal Centre in your area. A searchable map is located on the Community Legal Centres Australia website.

Alternatively, you could try the Legal Aid services in your respective state or territory.

The above organisations may assist you in determining whether you wish to make a complaint – and where. They may also be able to provide you with legal representation if you do complain.

Nevertheless, it is not compulsory to obtain advice, or be represented, in order to make an anti-discrimination, or anti-vilification, claim. You could instead decide to go directly to the relevant human rights body. These include:

The Australian Human Rights Commission for discrimination complaints, including employment discrimination [remembering that there are no LGBTI vilification protections under Commonwealth law]

The Fair Work Commission if the complaint relates to employment discrimination only [noting that only lesbian, gay and bisexual people can apply – because the Fair Work Act 2009 (Cth) does not cover gender identity or intersex status/sex characteristics][v]

Anti-Discrimination NSW

The Victorian Equal Opportunity and Human Rights Commission

The Queensland Human Rights Commission

The WA Equal Opportunity Commission

The SA Equal Opportunity Commission

Equal Opportunity Tasmania

The ACT Human Rights Commission

The NT Anti-Discrimination Commission

A lot has been written in recent months about the coronavirus ‘not discriminating’. That SARS-CoV-2 is the ‘great leveller’. That in response to COVID-19 we are now all supposedly playing on the same team (namely ‘Team Australia’).

Of course, that simplistic slogan simply isn’t true. Just like life before the ‘rona, the rich will have fewer adverse outcomes than the poor. Aboriginal and Torres Strait Islander people will continue to experience extremely high rates of disadvantage.

Racial minorities, especially Chinese-Australians and other people from Asian backgrounds, will endure even greater levels of racism than before the pandemic. Prime Minister Scott Morrison is fond of telling Australians to ‘get out from under the doona’. He needs to also pay attention to the increased racist abuse which has sadly – but entirely predictably – emerged from under the covers.

As we have seen, lesbian, gay, bisexual and transgender Australians, as another vulnerable group, are at risk, too – of increased discrimination in employment, in service delivery, and through vilification.

If that happens to you, there may be legal remedies available, including under Commonwealth, state and territory discrimination laws, or the Fair Work Act. As discussed earlier, there may also be good reasons why you ultimately choose not to make a complaint under any of these processes.

But one reason homophobic, biphobic and transphobic bigots shouldn’t be allowed to get away with anti-LGBT discrimination or vilification is that you simply weren’t aware of the options available.

Christian Porter

Commonwealth Attorney-General should spend more time fixing problems with our existing anti-discrimination laws, and less time trying to introduce a Religious Discrimination Bill that would only exacerbate them.

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Footnotes:

[i] Acknowledging of course that traditionally, and unfortunately still today, the most likely targets of discrimination on the basis marital or relationship status, or family responsibilities, are women.

[ii] For more on this subject, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iii] Although there is currently a Victoria Parliament inquiry considering expansion of the Racial and Religious Tolerance Act 2001 (Vic) to cover sexual orientation, gender identity and intersex status. See my submission to that inquiry here.

[iv] Although the criminal offence of publicly threatening or inciting violence, added to the Crimes Act 1900 (NSW) in 2018, does cover all of sexual orientation, gender identity and intersex status. For more on the problems of LGBTI anti-discrimination law in NSW, see What’s Wrong With the NSW Anti-Discrimination Act 1977?

[v] For more, see Unfairness in the Fair Work Act.

Submission to NSW Parliament Inquiry into Gay and Transgender Hate Crimes Between 1970 and 2010 – 57th Parliament

Standing Committee on Social Issues

NSW Legislative Council

via email: socialissues@parliament.nsw.gov.au

Thursday 30 April 2020

 

To the Committee

Submission re Gay and Transgender Hate Crimes Between 1970 and 2010

Thank you for the opportunity to provide this submission on the subject of ‘Gay and Transgender hate crimes between 1970 and 2010’ in NSW.

I do so further to my original submission to the inquiry into the same subject, held in the previous Parliament.

I welcome the decision by the NSW Legislative Council to re-establish an inquiry into this important topic, and continue this work, this term.

In this submission, I endorse the submissions already made to the re-established inquiry by organisations that represent the LGBT community in NSW. This includes the submission made by ACON.

Specifically, I endorse ACON’s comments relating to Recommendation 3 of the Interim Report (‘That the NSW Police Force ensure that all officers have the skills and knowledge to engage with lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) people respectfully and equally’), namely:[i]

The recommendation of the Interim Report relating to the responsibility of the New South Wales Police Force fails to recognise the historical context that this Inquiry examined. We would assert that the NSW Police Force also needs to consider the impact of their policing and its effect on our communities in the past. It is only in conjunction with ongoing reflection on these issues that skills and knowledge will have any effect on the relationship between our communities and the Police.

I also endorse ACON’s comments about the disappointing response to the Interim Report provided by the Minister for Police, the Hon David Elliott:[ii]

ACON believes the response does not adequately take into consideration the overall content of the Committee’s Report on the Inquiry, focusing only on a singular recommendation. The work of the Committee in putting together the Report reflects, to a degree, the personal stories and experiences of community members and organisations. While the Report goes some way to frame these stories in the context of problems with policing and our communities, the response from Minister Elliott downplays these experiences. The brevity of the response, and its ignorance of the full subject matter of the Report, is disappointing…

The crimes that occurred in the past are abhorrent, and the police response to these crimes was negligent at best. These facts are known by our communities. ACON was extremely disappointed that no such acknowledgement was included in Minister Elliott’s response.

Finally, I endorse the call made by ACON for the Committee to seek evidence from NSW Police to assess the four measures that are proposed in the one-page response by Minister Elliott, including how they are being implemented in practice:[iii]

  1. Revised bias crime indicator assessment tools supported by appropriate training packages
  2. A review of internal policies ensuring open-mindedness regarding motive
  3. Ongoing internal ethical and cultural training to specifically include LGBTIQ experiences
  4. Ongoing improvements to ensure bias crimes are centrally captured for state-wide investigations.

I also endorse the submission to the re-established inquiry made by the NSW Gay & Lesbian Rights Lobby. This includes their comments that:[iv]

The trust to which our community can place in the NSW Police Force will continue to suffer as long as the Force continues to come to grips with its culture of homophobia. As per our previous submission, we want to see ongoing education modules relating to LGBTIQ people as a standard of employment for every employee of NSW Police Force, from the Commissioner down. It is no longer good enough to have a handful of ‘trained’ GLLOs, unevenly distributed across the state…

An individual living in any corner of this state should be able to deal with any NSW Police Officer or any other public service employee with confidence, knowing they will be treated equally and respectfully.

I also endorse the NSW Gay & Lesbian Rights Lobby’s submission on the need for anti-discrimination law reform to help address homophobia and transphobia in NSW:[v]

[T]he tacit approval of discrimination must be avoided. Anti-discrimination laws, and their exemptions, have been the subject of wide-spread consideration in recent years. The swift public backlash to exemptions which permit discrimination by religious schools against LGBTIQ people are heartening. However, as yet, the GLRL eagerly awaits the removal of these exemptions. The research and lived experiences … demonstrate how discrimination permitted by laws such as the Anti-Discrimination Act 1977 (NSW) contribute to a culture which sees hate crimes committed against LGBTIQ people.

Finally, I support the submission made by the Pride History Group (submission number 15), and draw the Committee’s attention to the personal accounts of homophobia and transphobia, including homophobic and transphobic violence, which it contains.

In terms of my own substantive comments, I have two criticisms of the Interim Report which I would like to make to the Committee.

The first concerns observations, both in the Chair’s foreword, and in evidence provided by Assistant Commissioner Anthony Crandell of the NSW Police Force, that appears to frame NSW Police as passively reflecting the homophobia and transphobia of NSW society, rather than being an active contributor to this discrimination and intolerance.

For example, the Hon Shayne Mallard MLC wrote on page vii that:

For many decades, pervasive prejudices against LGBTIQ people ran deeply in society. Even with legislative change following the decriminalisation of homosexuality in 1984, bias attitudes were still being perpetuated within the broader community with a legacy that is still keenly experienced today. The ensuing violence and crime against gay and transgender people, particularly in the 1970s, 1980s and 1990s, was shocking, abhorrent and all too common. Amidst this stood a NSW Police Force and a broader criminal justice system with a culture influenced by the social values of the time [emphasis added].

Similarly, on page 8, the Interim Report noted that:

While Assistant Commissioner Anthony Crandell, Police Education and Training, NSW Police Force acknowledged that the ‘police force reflected the community and was no different, with culture and values taking far longer to evolve.’

And again on page 45:

In evidence to the inquiry, Assistant Commissioner Crandell acknowledged that historically, the ‘NSW Police Force accepted a culture and society that marginalised people who happened to be sexually or gender diverse.’

He made further comments along the same lines on page 69:

Assistant Commissioner Crandell observed that at no stage had the NSW Police Force indicated that there was ‘no more homophobia, transphobia or that sort of sentiment’ within the force. Rather, he stated: ‘We reflect the community.’ He explained: ‘If we can say that about the community then perhaps I could say that about the police force, but you cannot say that about the community and I cannot say that about the police force…’

The overall impression of these comments is that NSW Police was only ever a ‘mirror’ reflecting society’s homophobia and transphobia back to itself, rather than an organisation with agency that itself generated homophobia and transphobia through its own culture, policies and operational decisions.

I would dispute this ‘mirror’ characterisation in at least two ways. First, the police force is a key shaper of societal attitudes. It plays a role in deciding those rules that are actively enforced, and those that are not (because there will always be far more ‘crimes’ committed than are investigated or prosecuted at any one time) – and this sends a signal to ordinary community members about what are serious breaches of the law versus minor infractions. In this way, the law enforcement actions of police carry a ‘normative’ value.

Indeed, this can be seen in prioritisation of anti-homosexual policing described on page 7 of the Interim Report:

Societal views and attitudes of the time were said to have been compounded by the leadership approach taken by senior policy officers. For example, during the 1950s, the then NSW Police Commissioner Colin Delaney voiced personal views regarding homosexuality that encouraged vigilant detecting and prosecution of homosexual acts and homosexual men by police. In 1958, Commissioner Delaney described homosexuality as “Australia’s greatest menace’; that homosexuals were a “cancer in the community”, who threatened to damage society’s “moral welfare.”

I submit it is impossible to argue that these comments, from the ‘top cop’ in the biggest jurisdiction in Australia, did not have an impact on societal homophobia – especially when it was reinforced by police entrapment and harassment of gay and bisexual men.

The second way in which NSW Police contributed to homophobia and transphobia in society (rather than the other way around), was by failing to properly investigate crimes against gay, bisexual and transgender victims of crime.

While I concede many people at the time may have considered LGBT people to be ‘lesser’ than other members of the community, the actions of NSW Police actually made them so under the law, and therefore actively encouraged others to treat them in the same way.

As noted by the Committee itself on page 35:

Throughout the inquiry the committee heard that police investigations into a number of suspected gay hate crimes during the 1980s and 1990s were inadequate, ineffective and in some cases absent almost entirely, with victims and loved ones never receiving adequate justice.

As described by Mr Larry Galbraith on page 32:

[E]fforts to encourage victims to report were often ‘undermined by the police themselves’, which in turn impacted on the willingness of victims to report crimes. Mr Galbraith recounted a sentiment expressed to him, that going to the police was like a ‘lucky dip – expect it was a lucky dip that too many gay men were not prepared to risk’. He explained: ‘For many gay men, it was sheer luck if the cop you saw took your matter seriously and was willing to do something about it.’

By failing to do their jobs and investigating crimes committed against anyone, irrespective of who they were, NSW Police sent a message to the community that crimes committed against gay and bisexual men, and transgender people, were less serious than crimes committed against cisgender and heterosexual people. That reflects the special role of police in law enforcement, and goes far beyond simply ‘mirroring’ intolerant attitudes.

For these reasons, it was incredibly disappointing to see on page 94 that key sections of the draft Interim Report were removed by Committee members prior to its publication.

This includes the [now deleted] observation that:

The committee accepts the view put forward by a number of inquiry participants that the homophobic culture within NSW Police during the time period examined has significantly obstructed the delivery of justice for members of the LGBTIQ community subjected to violence and hate crimes, in addition to further marginalising a community that already felt ‘rejected’ by many in society’.

Most disappointingly, it involved removing Finding 2:

That the NSW Police Force failed in its responsibility to properly investigate cases of historic hate crime and this has undermined the confidence of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) communities in the NSW Police Force and the criminal justice system more broadly.

I strongly urge the committee to make this finding as part of the re-established inquiry.

My second substantive criticism of the Interim Report relates to how it dealt with the issue of the gay panic, or ‘homosexual advance’, defence – or, more accurately, how it failed to properly address this topic.

The terms of reference specifically included the following:

(b) in relation to LGBTIQ hate crimes more generally:

i. what role the so-called ‘Gay panic’ defence played in the culture of LGBTIQ hate crimes between 1970 and 2010,

ii. how the so-called ‘Gay panic’ defence impacted the delivery of justice and the treatment of Gay men during LGBTIQ hate crime investigations and court proceedings

However, despite this term of reference, and Chapter 4 of the Interim Report discussing this issue at some length, the Interim Report does not include any findings or recommendations on this subject.

Even worse, once again strong statements on this subject, including a proposed Recommendation, were removed by the Committee prior to the public of the Interim Report (as noted on page 99 of the Report). These deleted paras stated:

While the Crimes Act 1900 has been amended to finally reflect the recommendations of both the 1995 NSW Attorney-General’s Working Party on Homosexual Advance Defence and the parliamentary inquiry into the partial defence of provocation, the committee acknowledges that there is a ‘gay panic’ defence legacy.

The committee supports the NSW Government’s 2013 directive for the NSW Law Reform Commission to conduct a comprehensive review of the law of homicide and homicide defences, as initially recommended by the 2013 Legislative Council Select Committee on the Partial Defence of Provocation to ensure that recent legal reforms have effectively removed any potential for further injustice to occur. The committee therefore recommends that the NSW Attorney General issue a reference to the NSW Law Reform Commission to require it to undertake a comprehensive review of the law of homicide and homicide defences in New South Wales.

Recommendation 10

That the NSW Attorney General issue a reference to the NSW Law Reform Commission to require that it undertake a comprehensive review of the law of homicide and homicide defences in New South Wales to ensure that recent legal reforms have effectively removed any potential for injustice to occur.

I believe that these paras, and the proposed Recommendation 10, were justified on the basis of evidence provided to the inquiry by ACON, Mr Larry Galbraith,[vi] and Mr Nathan Johnstone,[vii] among others.

I strongly urge the Committee to incorporate these comments, and to make a similar recommendation to the deleted Recommendation 10, in its Final Report.

This would highlight the deleterious impact of the gay panic defence, not just on the individual victims whose lives were treated as somehow being less worthy by the criminal justice system, but also the entire LGBT community because crimes against them were seen as less serious than crimes committed against others.

My final comment in relation to the Interim Report is to express my support for the position of the NSW Young Lawyers Human Rights Committee, as summarised on page 50:

The NSW Young Lawyers Human Rights Committee argued that there are limitations to the current GLLO program that need to be addressed. These include:

  • the name of the program creates barriers to access for bisexual, transgender, intersex and queer people
  • there are significant gaps in when and where GLLOs are available; and
  • there is limited evaluation of the performance of GLLOs in their role.

Given the perceived limitations of the GLLO program, the NSW Young Lawyers Human Rights Committee put forward three recommendations to improve its accessibility and effectiveness. These were:

  • Changing the name of the program to the LGBTIQ Liaison Officer program
  • Increasing the number of LGBTIQ liaison officers particularly in areas where gaps exist
  • Regularly evaluating the performance of LGBTIQ liaison officers and ensuring adequate support is provided for such officers to perform effectively in their roles.

I urge the Committee to adopt these suggestions in its Final Report. In this way, and provided they are subsequently adopted by NSW Police, it would help to strengthen this program – and, most importantly, to prevent some of the historical injustices heard by the Committee from being repeated in the future.

Thank you for taking this submission into consideration as part of this important inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

Sincerely

Alastair Lawrie

w1-truthandjustice

ACON’s In Pursuit of Truth and Justice Report, which documents gay and transgender prejudice killings in NSW in the late 20th century, can be found here.

Footnotes:

[i]  Submission Number 12, ACON, page 11.

[ii] Submission Number 12, ACON, pages 12-13.

[iii] Submission Number 12, ACON, pages 14-15.

[iv] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 6.

[v] Submission Number 14, NSW Gay & Lesbian Rights Lobby, page 8.

[vi] From page 61 of the Interim Report:

Mr Galbraith was of the view that the ‘gay panic’ defence ‘helped perpetuate the idea that… somehow the crime was lesser and therefore… should not be treated as seriously’. He added it was likely that the ‘gay panic’ defence fed ‘into a culture where other crimes against gay men should not be treated as seriously.’

[vii] Noting that the following para, describing Mr Johnstone’s evidence, was also removed from the final report:

Mr Nathan Johnstone, Committee member, NSW Gay and Lesbian Rights Lobby summarised for the committee the legacy of the “gay panic” defence:

I certainly think that it feeds into the level of distrust or the damage to the relationship between perhaps our community and not just police but perhaps the whole criminal justice system. You have got at least, I think it was, 13 people in about a three- or five-year period… who successfully used this before it was abolished. This is remarkable… That will still breed that culture and fuel that culture of distrust.

Coronavirus and the Religious Discrimination Bill

2020 is still less than ten weeks old. A lot has already happened in that time.

Obviously, the year started with the climate change-driven bushfires that devastated large swathes of South-Eastern Australia.

Around the same time, the first reports were emerging about a respiratory illness, caused by a novel coronavirus and which is now called COVID-19, wreaking havoc in Wuhan, China.

On a personal level, both at work and outside, most of my time has been spent trying to stop the Morrison Government’s proposed Religious Discrimination Bill, which will inflict its own serious harm on the Australian community.

At first glance, there may not appear to be much to connect these three developments. But dig a little deeper and there is a clear interaction between the Religious Discrimination Bill and the first two crises, at least in terms of how Australia responds to them.

For example, in relation to the bushfires in January, Prime Minister Scott Morrison encouraged Australians to give freely to charities, and then specifically named three: the Salvation Army, the Red Cross and St Vincent de Paul.

While the Red Cross is secular in ethos, the ‘Salvos’ and St Vincent de Paul are faith-based charities, which means that under clause 11 of the Religious Discrimination Bill they would legally be able to:

  • discriminate in terms of who they provide assistance to, including by ‘preferencing’ people who are Christian and consequently neglecting people who are Jewish, Muslim, Buddhist, Hindu, atheist or agnostic, and
  • discriminate in terms of who they employ, including by not hiring the most qualified person for the job, but instead the most religious.

To date, St Vincent de Paul has largely rejected these new special privileges, but as far as I understand, the Salvation Army has not (at least not Australia-wide). I wonder how many people would give so generously in the future if they were aware their money is funding religious discrimination and not emergency relief?

Nevertheless, it is the second major crisis – the coronavirus – and the Religious Discrimination Bill that I want to primarily focus on today.

Once again, despite superficially seeming unrelated, the Government’s proposed legislation could have a major influence on how our country responds to this grave threat. Indeed, I would argue that COVID-19 provides (at least) five reasons why the Religious Discrimination Bill must be abandoned.

  1. The Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified

In the coming months, we are going to be relying on our health care system more than ever before. From GPs to pharmacists, health information lines to hospitals – both public and religious. All parts of the system must be high quality – and that means all must hire the best-qualified person for each and every position.

Unfortunately, the Religious Discrimination Bill subverts that entirely reasonable expectation. Under clauses 32(8) and (10), religious hospitals would be permitted to discriminate in employment on the ground of religious belief.

That means a religious hospital would be legally able to hire a doctor, or nurse, or pharmacist, or other essential employee, because of their religious beliefs and instead of a better-qualified alternative candidate.

Surely that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.

The fact that religious hospitals receive public funding to deliver these services makes this proposal even more sickening.

If the Australian Government wants us to have confidence in all parts of the health system as it responds to coronavirus, then it must abandon legislation that inevitably damages that confidence.

  1. The Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified

Another area that has an important role in dealing with COVID-19 is our aged care sector. This is because the death rates from coronavirus are much higher among people aged over 70, and especially 80, and where they have existing medical conditions – exactly the demographic profile of aged care facilities.

Because of these particular vulnerabilities, we will be relying on our aged care workers to limit the spread of infection and keep our elderly as safe as possible – as well as to respond appropriately where transmission does occur.

Unfortunately, the same provisions of the Religious Discrimination Bill named above – clauses 32(8) and (10) – also allow religious aged-care services to discriminate in employment of the ground of religious belief.

Once again, that means aged care services operated by faith-based organisations will be permitted to hire someone because of their religious beliefs rather than their qualifications. Once again, the services will be able to discriminate in this way even where they are government-funded.[i]

As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills.

Older Australians must be looked after by the people most likely to keep them safe, irrespective of their religious beliefs. This is especially important during the coronavirus pandemic. The Religious Discrimination Bill directly contradicts this principle, and is another reason why it must be abandoned.

  1. The Religious Discrimination Bill will already make it more difficult for women, LGBTI people and other vulnerable groups to access essential health care. Coronavirus will exacerbate this problem

Of course, while COVID-19 will likely receive the lion’s share of health care system resources in the weeks and months ahead, people will continue to get sick in other ways, and to rely on health practitioners to keep them well.

Unfortunately, as has been highlighted previously,[ii] clauses 8(6) and (7) of the Religious Discrimination Bill would make it easier for doctors, nurses, pharmacists, psychologists and midwives to refuse to participate in particular health services.

As Attorney-General Christian Porter has himself conceded, these provisions would allow doctors and pharmacists to:

  • refuse to provide reproductive health services, even where this has a disproportionate impact on women
  • refuse to provide access to hormone therapy, including puberty blockers, even where this has a disproportionate impact on trans and gender diverse people, and
  • refuse to provide PEP and/or PrEP, even where this disproportionately exposes gay and bisexual men to the risk of HIV transmission.

Where patients are denied this essential health care, they are supposed to find another health practitioner who is willing and able to do so (although the refusing practitioner likely does not have any obligation to make a referral).

As has been pointed out, this may be practically difficult, both for time-critical services (such as PEP, or the ‘morning after’ pill), as well as for people in regional, rural and remote parts of Australia.

Well, the impact of the novel coronavirus could make this situation much worse. For example, say you are a trans youth living in a regional centre, and rely on a certain doctor and/or pharmacist to provide access to puberty blockers.

And then that doctor or pharmacist is required to self-isolate for a minimum of two weeks because of potential exposure to COVID-19. Note that this is already happening in Sydney and Melbourne, with individual health practitioners ordered to stay away from work at extremely short notice.

What exactly is the trans young person meant to do in these circumstances, especially where other doctors and pharmacists in town have the ‘right’ to turn them away?

With the impending massive strain of coronavirus on our health care system, all effort should be made to ensure it operates effectively and efficiently for all people who need health care – all types of health care. The Religious Discrimination instead erects barriers to some of the most vulnerable members of our community. It must be abandoned.

  1. The Religious Discrimination Bill will divide Australia at a time it needs unity

It is only early days in terms of the impact of COVID-19 on Australia, with the total number of people diagnosed remaining at fewer than 100 (at the time of writing).

However, the impact on our social cohesion is already quite large. This includes countless reported incidents of racism directed at Chinese-Australians, and Asian-Australians more generally.

And of course just this week we witnessed the run on the nation’s toilet paper supply – with panic buying leading to physical altercations in a number of supermarkets around the country.

As the situation worsens, and more and more people are infected, this pandemic will likely test the ties that bind us together, often in unexpected ways.

This is exactly the wrong time for our Government to introduce legislation that divides the community into ever-smaller groups of ‘us’ and ‘them’.

It is the wrong time to allow schools, and universities, and charities, and accommodation providers, and hospitals, and aged care services, and conference venues, and camp sites, to discriminate on the ground of religious belief in terms of who they offer services to, and/or employ.

It is the wrong time for our Government to pursue a Bill that encourages religious individuals to make degrading and demeaning ‘statements of belief’ against women, LGBTI people, people with disability, single parents, people in de facto relationships, divorced people and even people from minority faiths, in all areas of public life.[iii]

While I haven’t seen many examples yet, I’m sure there will soon be a deluge of extremists seeking to exploit coronavirus, blaming it on women exercising reproductive choice, gay men having sex, LGBTI people getting married – all with the possible tick of approval from the Religious Discrimination Bill.

If the Government wants to lead on COVID-19, and bring the community together to deal with a common threat, it must abandon legislation that makes nearly everybody an enemy of somebody else.

  1. The Religious Discrimination Bill is a distraction for a Government that should be focused on more important things

The fifth and final reason why the Government must abandon the Religious Discrimination Bill is arguably the most important – and that is because it is an unnecessary distraction from much more important issues that warrant their urgent attention.

Like responding to the immediate health challenges presented by coronavirus, particularly as the illness begins its inevitable spread across the community.

And dealing with the significant economic fallout, with Australia now facing our first economic recession in almost three decades.

There is an entire generation of people (including myself and my partner) who have grown up not knowing what a recession looks like, but it seems we are soon to find out. And it won’t be pretty.

Surely the Government should be focused on taking action to stop the economy grinding to a halt, and preventing rising unemployment in education, tourism, retail, construction and pretty much every other industry in the country.

Oh, and then there’s the equally urgent need to make structural changes to reduce our carbon emissions, to minimise the chances of the other disaster that heralded the start of 2020 (the bushfires) from happening again.

Instead, the Morrison Government is wasting its time on proposed legislation that almost nobody actually wants, except religious fundamentalists who demand it so they can use it as a weapon against non-believers.

In pushing forward with the Religious Discrimination Bill, the Government is wasting our time, too – because we must continue to expend our time, energy and resources to stop this abhorrent and appalling legislation.

If it sounds like I’m sick and tired, that’s only because I am. Sick and tired of having to defend my community against the constant attacks against it, from a Government that can’t find the time to protect LGBT students in religious schools against discrimination, but has miraculously created the time to progress two exposure drafts (and counting) of this law.

And if it sounds like I’m anxious about coronavirus, well I am that too. If we’re being honest, most of us are right now. That anxiety might turn out to be unfounded. Or it could be an entirely rational response to what confronts us. It could even be we aren’t worried enough.

We don’t really know – only the weeks and months ahead will truly tell.

Here’s what we do know. As of this morning, a third Australian has tragically died from COVID-19, out of more than 3,500 deaths – and 105,000 cases – worldwide. Each of those numbers will continue to grow.

But there’s one death that would not be mourned – if the Morrison Government finally did the right thing and abandoned its Religious Discrimination Bill. That would be a mercy killing, and it would be met with relief from most members of the Australian community.

 

Coronavirus

 

For more on this subject, see The Religious Discrimination Bill: What you should know.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:

[i] I should highlight here that government-funded aged care facilities operated by religious bodies are already entitled to discriminate in employment in relation to sexual orientation and gender identity, under section 37 of the Sex Discrimination Act 1984 (Cth). As I have argued previously this provision already jeopardises the standard of care provided to people accessing aged care services and it must be removed. See Submission to Royal Commission into Aged Care.

[ii] See The ‘Bad Faith’ Religious Discrimination Bill Must be Blocked.

[iii] Under clause 42 of the Bill, which effectively exempts ‘statements of belief’ from all Commonwealth, state and territory anti-discrimination laws, unless they meet the high bar of being malicious, harassing, threatening, seriously intimidating, vilifying (meaning inciting hatred or violence) or promoting the commission of a serious criminal offence.

Don’t Rain on Our Parade

It’s reached that point in late February where, every day at 4:20pm, I visit the Bureau of Meteorology website to check the forecast for Saturday night’s Sydney Gay & Lesbian Mardi Gras Parade.

 

But, irrespective of whether the BoM says it will rain, hail, (smoke) or shine, there’s a much larger cloud hanging over Australia’s LGBTI community: the Morrison Government’s proposed Religious Discrimination Bill.

 

This legislation has the potential to adversely affect nearly every aspect of our existence.

 

From health-care, where it will allow doctors and pharmacists to deny hormone therapy, including puberty blockers, to trans and gender diverse people. And to refuse to provide access to PEP, and PrEP, exposing gay and bisexual men to greater risk of HIV transmission.

 

To the workplace, where employers and colleagues will be able to make comments that offend, humiliate, intimidate, insult or ridicule us, as long as those statements are based on religious belief.

 

A manager could tell a staff member that gay sex is sinful, and same-sex relationships are intrinsically disordered.

 

An interviewer may inform a trans applicant that gender is binary, and therefore their gender identity is not real.

 

A colleague could respond to a lesbian co-worker showing pictures of her family in the lunch-room that she has deliberately denied her children of a father, and will be condemned by god for her ‘lifestyle’ choices.

 

These are all entirely plausible scenarios. And all would be legally permitted under the Religious Discrimination Bill, because statements of belief are effectively exempt from all Commonwealth, state and territory anti-discrimination laws.

 

Indeed, statements of belief would be protected across all areas of public life, not just employment.

 

If this legislation passes, international tourists visiting Sydney this time next year could be subjected to degrading and demeaning comments anywhere and everywhere, at the airport, in the taxi or uber, on buses, trains and ferries, at the hotel or B&B, at tourist attractions, in cafes and restaurants, at shops and on the streets.

 

That sounds more like hate-song than ‘matesong’.

 

Except, once the party is over tourists will be able to leave these homophobic, biphobic, transphobic and intersexphobic comments behind, while LGBTI Australians will be stuck with them, like unshakeable glitter, invading every nook and cranny for years to come.

 

As a certain bank tried to remind us last week – and was then itself reminded by the community – ‘words do hurt’. It is unacceptable that our own Government is so focussed on ensuring we are all exposed to more hurtful words in our lives.

 

The Bill also further entrenches the special privileges granted to religious schools and other faith-based organisations to discriminate against teachers, other employees, students and, in some cases, people accessing their services, on the grounds of religious belief or lack of belief. Even where these services are being delivered using public funding.

 

It doesn’t explicitly grant new powers to religious schools to discriminate against LGBT teachers and students. But then it doesn’t need to, either – because those powers already exist under the Sex Discrimination Act and, despite promising to protect LGBT students before the end of 2018, the Morrison Government has so far failed to shield some of the most vulnerable members of our community.

 

The theme for this year’s Mardi Gras is ‘What Matters’. In pushing ahead with the Religious Discrimination Bill, despite criticism from LGBTI organisations and a wide range of other civil society bodies, while failing to protect students in religious schools, it is clear the right to be a bigot matters much more to them than the safety of LGBT kids.

 

Perhaps the most frustrating part of the current debate is that, from an LGBTI advocate’s perspective, it is a purely reactive one – defending existing rights under what are already-flawed anti-discrimination laws, rather than trying to make those laws better (for example, including bisexual, non-binary and intersex people in NSW’s out-dated Anti-Discrimination Act).

 

It takes attention away from other urgent law and policy reform, too.

 

We shouldn’t forget that this Saturday’s march takes place in a state where trans people still need to have surgery – which is both expensive, and for some people, unwanted – before being able to update their identity documentation.

 

And in a country where children born with variations in sex characteristics continue to suffer massive human rights violations, including coercive, intrusive and irreversible surgery and other medical treatments.

 

The Religious Discrimination Bill will take LGBTI rights in Australia backwards, when there is still so much progress left to be made, on these and many other issues.

 

It’s time the Morrison Government abandoned this legislative attack on our community, and instead worked with us to achieve positive change – maybe then we can finally celebrate under clear skies.

 

Mardi Gras flag

 

For more on this subject, see The Religious Discrimination Bill: What you should know.

 

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

A Potential Warning to LGBTI Tourists to Australia

Today is one of my favourite days of the LGBTI calendar: Sydney Gay & Lesbian Mardi Gras Fair Day. Tens of thousands of people will gather in Victoria Park in a beautiful celebration of our community.

 

That includes visitors from interstate and from overseas, especially from the Asia-Pacific region, whose numbers will swell over the next fortnight in the lead-up to the Mardi Gras Parade and Party, to be held on Saturday 29 February.

 

It creates a real buzz around the city. I can only imagine how much louder Sydney will hum in 2023 as we host World Pride, the first city in the Southern Hemisphere to do so.

 

However, there is a looming threat to LGBTI tourism to Australia, one that has the potential to dampen our celebrations more than even literal rain on our parade: the Government’s proposed Religious Discrimination Bill.

 

If passed, this legislation could have a negative impact on nearly every aspect of the visitor experience. So much so, it is easy to envisage the following warnings being handed out to lesbian, gay, bisexual, transgender and intersex tourists to Australia in the future:

 

  1. Don’t get sick

 

Not only because our health care system can be expensive for people who are not citizens or permanent residents. But also because the Religious Discrimination Act allows doctors, pharmacists and some other health practitioners to refuse to provide health services, even where this has a disproportionate impact on vulnerable groups. For example, doctors and pharmacists can:

  • refuse to provide hormone treatments, even where this adversely affects trans and gender diverse people[i]
  • refuse to provide PEP/PrEP, even where this has a detrimental impact on gay and bisexual men (and others at increased risk of HIV transmission), and
  • refuse to provide reproductive health services (such as the morning after pill), irrespective of the effect on people with uteruses.

 

If possible, make sure you bring all of your medications with you, and be careful not to lose them during your stay.

 

  1. Be prepared to ‘shop around’ for doctors, pharmacists and other health practitioners

 

If you do get sick, or lose your medication, while in Australia, you should be prepared for the possibility any individual doctor or pharmacist may refuse to provide a specific health service or treatment. You may need to see several of each in order to obtain access to the medications you need. Unfortunately, it is also likely you will be charged for appointments even where the health practitioner refuses to provide a service.

 

Importantly, whether a doctor or pharmacist will refuse to provide a specific health service or treatment may not be apparent before you see them. Individual doctors or pharmacists at public hospitals are also entitled to refuse service: if this happens, try asking for a new practitioner until you receive treatment.

 

  1. Be prepared for doctors, pharmacists and other health practitioners to express abhorrent views about you, to you

 

Even if a doctor, pharmacist or other health practitioner provides you with the health service or treatment that you need, they are also free to express offensive, humiliating, ‘moderately’ intimidating, insulting or ridiculing views about your sexual orientation, gender identity or sex characteristics while doing so. For example, they may be able to:

  • tell trans and gender diverse people that gender is binary and that their gender identity is an abomination[ii]
  • tell lesbian, gay and bisexual people that same-sex relationships are intrinsically disordered and sinful, and
  • tell intersex people that sex should be male or female and that their sex characteristics are a mistake that must be corrected.

 

Doctors, pharmacists and other health practitioners will be able to express these abhorrent views to you as long as they are based on their religious beliefs.

 

  1. Be prepared for people to express abhorrent views about you, to you, in all areas of public life

 

In fact, people will be to express such views about you, to you, in all areas of public life: on the plane or boat you arrive on; at the airport; in taxis, ubers, buses, ferries, trains and other forms of transport; at hotels, motels and B&Bs; at galleries, museums and other tourist attractions; at cafes and restaurants; at shops. Everywhere you go while you are in Australia.

 

That’s because the Religious Discrimination Act exempts ‘statements of belief’ from constituting discrimination under all other Commonwealth, state and territory anti-discrimination laws, as long as those statements are based on that person’s religious beliefs and fall short of harassment, threats, serious intimidation or incitement to hatred or violence.

 

  1. If you are subjected to abhorrent views and wish to make a complaint, try to find out whether the person expressing them is religious

 

Because abhorrent views are protected where they are based on religious beliefs, you may be able to complain about homophobic, biphobic, transphobic and intersexphobic comments that are not motivated by religion.[iii] Therefore, if you wish to make a complaint about such mistreatment, you will first need to work out whether the person making the statement is religious.

 

In practice, it may be difficult to determine whether someone is religious and/or whether their anti-LGBTI prejudice is based on their religious beliefs. It may also be physically unsafe to do so. In these circumstances, it may be wiser not to make a complaint and instead try to avoid the person(s) expressing such views (if possible).[iv]

 

  1. If you need emergency food or shelter during your stay, consider pretending to be Christian

 

In Australia, the Government outsources a wide range of health, education and other community services to religious organisations. This includes some homelessness shelters, as well as food vans and other welfare services.

 

Under the Religious Discrimination Act, religious charities are able to discriminate on the basis of religious belief in terms of who they provide these services to, even where they are providing them with public funding.

 

Given the vast majority of faith-based charities in Australia are Christian, if you experience financial difficulties during your stay and need emergency food or shelter, you should consider pretending to be Christian. You may even need to pretend to be from the specific Christian denomination providing that service (eg Catholic or Anglican).

 

**********

 

The above warnings might sound absurd, but if the Government’s Religious Discrimination Bill becomes law in its current form, then they will be all too real.

 

And we will have a responsibility to provide these warnings to all LGBTI tourists to Australia, not just during Mardi Gras and World Pride, Midsumma, Feast and other pride festivals around the country, but all year round, each and every year.

 

Of course, it won’t just be tourists who will be adversely affected by this legislation either. In fact, all of the warnings I have included will also apply to LGBTI Australians.

 

Doctors, pharmacists and other health practitioners will be able to refuse to provide specific health services and treatments to us, and we won’t necessarily know before we make an appointment.

 

Everyone in public life (including health practitioners, as well as people providing education, accommodation, transportation, food and other goods and services) will be able to express abhorrent views about us, and to us, as long as those views are religiously-motivated.

 

And if we fall on hard times, our religion (or lack of religion) may determine whether we are able to access some publicly-funded essential services.

 

The only glimmer of hope is that this post is a potential warning, rather than an actual one. It is only a Religious Discrimination Bill at this stage, not an Act. This disturbing vision of the future can still be prevented from becoming a reality – but only if we take action now.

 

Please speak up in the coming days and weeks. If you see a federal politician at Fair Day, or at the Mardi Gras Parade, ask them whether they will vote against a Religious Discrimination Bill that takes rights away from the LGBTI community. If they post about it on twitter, facebook or other socials, ask them the same thing.

 

You should also write to:

  • ALP MPs and Senators
  • Greens MP and Senators
  • Centre Alliance Senators (if you’re in South Australia)
  • Senator Jacqui Lambie (if you’re in Tasmania), and
  • Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith)

because they will help determine whether this legislation becomes a waking nightmare, or just a temporary bad dream.

 

PFLAG Australia has made this process easy, using the website Equality, Not Discrimination. Equality Australia has a similar helpful platform, here. Make your voice heard, because this legislation will affect LGBTI tourists, and LGBTI Australians, alike.

 

Rainbow Bridge

 

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Footnotes:

[i] Attorney-General Christian Porter confirmed that trans and gender diverse patients could be denied treatment on the day he released the Second Exposure Draft Religious Discrimination Bill:

“Mr Porter used the example of a GP who did not want to ‘engage in hormone therapies’ for a trans person. ‘That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all’.”

‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, 10 December 2019, Sydney Morning Herald.

[ii] The explanatory notes to the Second Exposure Draft Religious Discrimination Bill confirm this. At para 549, on page 66:

‘For example, a statement by a doctor to a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary may be a statement of belief, provided it is made in good faith. However, a refusal by that doctor to provide medical services to a transgender person because of their religious belief that gender was binary would not constitute a statement of belief as the refusal to provide services constitutes an action beyond simply stating a belief, and therefore may constitute discrimination on the basis of gender identity.’

[iii] This also depends on the jurisdiction the tourist finds themselves in. Anti-LGBTI vilification is not prohibited under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory. Anti-LGBTI vilification is prohibited in both Tasmania and the ACT, anti-LGBT vilification is prohibited in Queensland, while NSW has different coverage for inciting or threatening violence (LGBTI), or civil vilification (only lesbian, gay and binary transgender). For more see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iv] Indeed, this seems to be the Government’s intention – to discourage people who experience discriminatory conduct from bringing complaints.

Submission to Victorian Inquiry into Anti-Vilification Protections

The Committee Manager

Legislative Assembly Legal and Social Issues Committee

Parliament House, Spring St

East Melbourne VIC 3002

Submitted via: avpinquiry@parliament.vic.gov.au

Thursday 19 December 2019

 

To the Committee

 

Inquiry into Anti-Vilification Protections

 

Thank you for the opportunity to make a submission on this important subject.

 

I do so as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, having previously served on the Committee of Management of the Victorian Gay & Lesbian Rights Lobby (2004-05, and 2007).

 

In this submission, I will primarily focus on term of reference 8: ‘Possible extension of protections or expansion of protection to classes of people not currently protected under the existing Act.’

 

As the Committee is aware, Victoria currently only provides protection against vilification on the basis of two attributes – race (section 7) and religion (section 8) – under the Racial and Religious Tolerance Act 2001 (Vic).

 

From an LGBTI perspective this is incredibly disappointing, especially because the similar absence of LGBTI anti-vilification protections under Commonwealth law, which only covers race,[i] means that lesbian, gay, bisexual, transgender and intersex Victorians currently have no vilification protections at either level.

 

This stands in contrast to the laws of several other Australian jurisdictions.

 

For example, Tasmania protects against ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of’ sexual orientation,[ii] gender identity[iii] and intersex variations of sex characteristics.[iv]

 

Tasmania’s best practice legislation also prohibits ‘conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute’, which again includes sexual orientation, gender identity and intersex variations of sex characteristics.[v]

 

The Australian Capital Territory protects against ‘incite[ment of] hatred toward, revulsion of, serious contempt for, or severe ridicule of’ persons on the basis of gender identity,[vi] intersex status[vii] and sexuality.[viii]

 

Although I note that intersex advocates have called for protection of the attribute of ‘sex characteristics’,[ix] rather than ‘intersex status’, reflecting both the biological rather than identity-based nature of variations of sex characteristics, and to promote consistency with the Yogyakarta Principles plus 10.[x]

 

Queensland also prohibits the ‘incite[ment of] hatred towards, serious contempt of, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person of members of the group.’[xi]

 

Meanwhile, NSW has adopted two separate, and in some ways contradictory, approaches to vilification. It provides civil protection against vilification (which includes ‘incite[ment of] hatred towards, serious contempt for, or severe ridicule of’) to binary[xii] transgender people,[xiii] and lesbians and gay men.[xiv]

 

On the other hand, in 2018 NSW Parliament amended the Crimes Act 1900 to provide that ‘[a] person who, by public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence’ and nominated sexual orientation,[xv] gender identity[xvi] and intersex status.[xvii]

 

Overall, then, LGBTI people are protected against vilification in both Tasmania and the Australian Capital Territory, LGBT people are protected in Queensland, and lesbians, gay men and some trans people have access to civil protection in New South Wales, while all LGBTI people are covered by the narrower criminal offence of ‘publicly threatening or inciting violence’ in that state.

 

Of course, the fact other jurisdictions have adopted a different approach to this issue is not necessarily a compelling argument that Victoria should do the same. However, I do support such an expansion for two main reasons.

 

First, in principle, there is no reason why vilification on the basis of race or religion should be treated any differently to vilification on the basis of sexual orientation, gender identity or sex characteristics.

 

Vilification on any of these attributes is serious, and racial or religious vilification is no more serious than anti-LGBTI vilification. This is especially so given the harm caused by each type of vilification can be severe, and therefore the conduct which contributes to this harm should be prohibited, irrespective of whether it is racist, anti-religious or homophobic, biphobic, transphobic or intersexphobic.

 

Second, in practice, lesbian, gay, bisexual, transgender and intersex Australians remain exposed to unacceptably high rates of discrimination and vilification on the basis of who they are.

 

This was particularly demonstrated during the Commonwealth Government’s 2017 Same-Sex Marriage Postal Survey, and its lingering aftermath.

 

This unnecessary, wasteful and divisive vote on the rights of a minority group encouraged people to ‘have their say’ about LGBTI Australians, and inevitably (and, it should be noted, entirely predictably) stirred up significant amounts of public homophobia, biphobia, transphobia and intersexphobia against us.

 

Sadly, once the genie of anti-LGBTI bigotry was deliberately let out of the bottle by the Turnbull Liberal-National Government, it will take the rest of us many years, if not decades, of concerted effort to put it back in again.

 

This can be seen by the ongoing hate-based campaign targeting trans and gender diverse people, and especially trans children, which appears on an almost daily basis in our nation’s newspapers, and elsewhere.

 

As we enter the 2020s, the homophobia, biphobia, transphobia and intersexphobia whipped up by the Commonwealth Government in the last decade still haunts us, and will likely continue to do so for some time yet.

 

For both of these reasons, principled and practical, I urge the Victorian Parliament to follow the lead of other jurisdictions and introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics.

 

Recommendation 1: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of:

  • sexual orientation
  • gender identity, and
  • sex characteristics.

 

I note that the Racial and Religious Tolerance Amendment Bill 2019, introduced by Fiona Patten MLC, proposes to do exactly that. It also proposes to add gender, and disability, to the list of attributes that would be protected against vilification under that legislation.

 

While I am not an expert on gender or disability-based vilification, for (at least) the first of the reasons outlined above, I can see no good reason why Victorians should not also be protected against vilification on the basis of these attributes.

 

Recommendation 2: That the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit vilification on the basis of gender and disability.

 

One final issue I would like to address in this submission also arises through Ms Patten’s Racial and Religious Tolerance Amendment Bill 2019, and specifically relates to proposed amendments to section 24 of the principal Act which creates the offence of serious racial vilification.

 

These amendments would add the words ‘or recklessly’ to, and remove the words ‘the offender knows’ from, the fault element of this offence.

 

I support both changes. The first change would help create consistency with the offences established in other jurisdictions (including the recently-introduced NSW Crimes Act 1900 provisions).

 

The second would remove the ‘offender knows’ subjective test from this offence, which is important because such harmful conduct should be prohibited irrespective of whether the specific offender knew that was the likely outcome.

 

Recommendation 3: That serious vilification offences in the Racial and Religious Tolerance Act 2001 (Vic) be amended to prohibit intentionally or recklessly engaging in conduct that is likely to incite hatred, or to threaten, or incite others to threaten, physical harm or harm to property.

 

Thank you for taking this submission into consideration as part of this inquiry. Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely

Alastair Lawrie

 

Fiona Patten

Fiona Patten MLC, whose Racial and Religious Tolerance Amendment Bill 2019 would protect LGBTI Victorians against vilification.

 

Footnotes:

[i] Section 18C Racial Discrimination Act 1975 (Cth).

[ii] Section 19(c) Anti-Discrimination Act 1998 (Tas).

[iii] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[iv] Section 19(e) Anti-Discrimination Act 1998 (Tas).

[v] Section 17(1) Anti-Discrimination Act 1998 (Tas).

[vi] Section 67A(1)(b) Discrimination Act 1991 (ACT).

[vii] Section 67A(1)(d) Discrimination Act 1991 (ACT).

[viii] Section 67A(1)(g) Discrimination Act 1991 (ACT).

[ix] Darlington Statement, March 2017, Article 9: ‘We call for effective legislative protection from discrimination and harmful practices on grounds of sex characteristics.’

[x] Which defines sex characteristics as ‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’ Yogyakarta Principles plus 10, 10 November 2017.

[xi] Section 124A Anti-Discrimination Act 1991 (Qld).

[xii] Because the definition of transgender in section 38A only protects a person:

(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…’

[xiii] Section 38S Anti-Discrimination Act 1977 (NSW).

[xiv] Section 49ZT Anti-Discrimination Act 1977 (NSW).

[xv] Section 93Z(1)(c) Crimes Act 1900 (NSW).

[xvi] Section 93Z(1)(d) Crimes Act 1900 (NSW).

[xvii] Section 93Z(1)(e) Crimes Act 1900 (NSW).

Did You Know? South Australia Still Hasn’t Abolished the Gay Panic Defence

[Updated 23 February 2020: A response from South Australian Attorney-General Vickie Chapman is included at the end of this article]

For those who are not aware, the ‘gay panic’ defence (sometimes referred to as the homosexual advance defence) was a partial defence to murder in Australia.

Part of the broader partial defence of provocation, the gay panic defence applied where a defendant killed another person but claimed it was because they lost control in response to an unwanted, non-violent sexual advance by the victim.

If successfully raised, the defendant would be convicted of manslaughter instead of murder, and generally a lower maximum sentence would be imposed.

If this sounds abhorrent, that’s because it was. Primarily used in circumstances where a heterosexual man killed a gay man, the gay panic defence was nothing short of legalised homophobia.

It told society that one of the most awful things that could happen to a heterosexual man was to be ‘hit on’ by a gay or bisexual man.

It told gay and bisexual men their lives were not as valuable as other members of the community.

Despite this, the gay panic defence was upheld as valid by a majority of the High Court of Australia in the infamous case of Green v The Queen [1997] HCA 50.

The injustice of this outcome was eloquently described by Justice Michael Kirby in his dissenting judgment to that decision:

“If every woman who was the subject of a ‘gentle’, ‘non-aggressive’ although persistent sexual advance… could respond with brutal violence rising to an intention to kill or inflict grievous bodily harm on the male importuning her, and then claim provocation after a homicide, the law of provocation would be sorely tested and undesirably extended…

Any unwanted sexual advance, heterosexual or homosexual, can be offensive. It may intrude on sexual integrity in an objectionable way. But this Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill or inflict grievous bodily harm. Such a message unacceptably condones serious violence by people who take the law into their own hands.”

But that was exactly the message that Kirby’s High Court colleagues chose to send. And it sent a message to state and territory parliaments around the country: the only way to end the gay panic defence was for them to amend the partial defence of provocation.

As well as a third and final message to the LGBTI community – that we needed to engage in eight separate campaigns to remove the stain of the gay panic defence from the law books.

Seven of those campaigns have been successful. As with many LGBTI law reforms, Tasmania was the first to act, abolishing the partial defence of provocation entirely (therefore including the gay panic defence) in 2003.

Victoria, Western Australia and Queensland have also chosen to abolish provocation entirely, while New South Wales, the Australian Capital Territory and Northern Territory have instead legislated that non-violent sexual advances (including same-sex advances) are not a valid defence to murder.

Queensland was the last of these jurisdictions to take action – abolishing the gay panic defence in 2017.

Unfortunately, though, that leaves one jurisdiction that has so far failed to take action. It also means that the use of the past tense, in the introduction to this article, was incorrect.

That’s because today, 2 February 2020, the gay panic defence is still a partial defence to murder in South Australia.

That seems extraordinary – the first Australia jurisdiction to decriminalise homosexuality, in 1975, is the last to reform a law that says a heterosexual man killing a gay or bisexual man who makes an unwanted, non-violent sexual advance towards him is less culpable than other killers.

Of course, LGBTI rights advocates in South Australia have long called for the repeal of the gay panic defence.

The South Australian Law Reform Institute has also recommended this change, calling for the partial defence of provocation to be abolished in April 2018.

The current Liberal Government has even agreed. On 9 April 2019, South Australian Attorney-General Vickie Chapman issued a media release titled ‘State Government moves to abolish provocation defence’, including the following comments:

The Marshall Liberal Government will introduce legislation abolishing the defence of provocation by the end of the year, after announcing today a Bill will be drafted to go out for extensive consultation…

“The fact that an outdated legal position such as this is [sic] still exists is disappointing, to say the least,” Ms Chapman said…

“Cabinet has now approved the drafting of a Bill that reflects the Marshall Government’s response to the [South Australian Law Reform] Institute’s recommendations, and ensure our laws in this area are brought up to date.”

Ms Chapman said key stakeholders – such as the Director of Public Prosecutions, the Courts Administration Authority and victims’ rights groups – would be consulted on the draft legislation, with a view to bringing a Bill before the Parliament by the end of the year.

Unfortunately, the end of 2019 came and went, but legislation ending the gay panic defence in South Australia was nowhere to be seen.

There does not appear to be any current Bill before the South Australian Parliament to end this abhorrent partial defence. Nor has there been any follow-up media release from Ms Chapman as far as I can ascertain.

Indeed, the only thing that comes up when searching for ‘gay panic’ or ‘provocation’ on the website of the South Australian Attorney-General’s Department is that initial April 2019 release promising reform before the end of last year.

This situation is obviously not good enough. In the third decade of the 21st century, it is simply unacceptable that the law of an Australian jurisdiction still provides that killing a gay or bisexual man who makes an unwanted, non-violent sexual advance is in any way justifiable.

It’s time for the South Australian Government to live up to its promise to end the gay panic defence once and for all. With Parliament resuming this coming Wednesday, 5 February 2020, what better time to get started.

Take Action

You can write to the Premier, or Attorney-General (or both!), calling for them to implement their promise to abolish the gay panic defence as a matter of priority. Their contact details:

 

The Hon Steven Marshall MP

Premier of South Australia

GPO Box 2343

ADELAIDE SA 5001

premier@sa.gov.au

Twitter: https://twitter.com/marshall_steven

Facebook: https://www.facebook.com/StevenMarshallMP/

 

The Hon Vickie Chapman

Attorney-General of South Australia

GPO Box 464

ADELAIDE SA 5001

AttorneyGeneral@sa.gov.au

Twitter: https://twitter.com/VickieChapmanMP

Facebook: https://www.facebook.com/vickiechapmanMP/

 

My own email to the Attorney-General, and copied to the Premier:

Dear Ms Chapman,

I welcome your promise of 9 April 2019 to abolish the gay panic defence (media release: ‘State Government moves to abolish provocation defence’).

However, I note your commitment that this legislation would be introduced before the end of last year does not appear to have been met.

As we enter the third decade of the 21st century, there is no room in the law for this partial defence, which tells society that one of the most awful things that can happen to a heterosexual man is to be ‘hit on’ by a gay or bisexual man.

More importantly, this law tells gay and bisexual men their lives are not as valuable as other members of the community.

With South Australian Parliament resuming on Wednesday 5 February, I look forward to the Government introducing legislation to abolish the gay panic defence as a matter of urgency.

Sincerely,

Alastair Lawrie

 

The following response was received from Attorney-General Vickie Chapman:

21 February 2020

Dear Mr Lawrie

Abolition of the ‘gay panic’ defence

I write in response to your email of 2 February 2020 to myself and the Premier, the Hon Steve Marshall MP, regarding the repeal of the so-called ‘gay panic’ defence.

I acknowledge your concerns that legislation to remove the gay panic defence is yet to be introduced in Parliament. As I have previously made clear, my views are that the gay panic defence is offensive and unacceptable, and I appreciate what the removal of this defence means to so many in the LGBTQI community.

To that end, I advise that officers in the Attorney-General’s Department are working on the Bill to make significant changes to this area of law, largely based on recommendations contained in the South Australian Law Reform Institute (SALRI) Report on The Provoking Operation of Provocation.

The defence of provocation is a complex area of sentencing law, and it is important that the legislation to remove the gay panic defence is properly considered. Accordingly, it has been necessary for me to seek expert advice regarding the abolition of the defence in murder cases as well as consider further reforms to sentencing and defences relating to family violence. The potential implications of the removal of the defence are significant and there are aspects of provocation laws that should remain in our sentencing regime, including for example, where domestic violence victims kill an abuser in self-defence.

The Bill will abolish the common law defences of provocation, necessity, duress and marital coercion and substitute statutory defences for necessity and duress. The partial defence of provocation (which has been, in some circumstances, used as a defence to unwanted same-sex advances) will be abolished.

The passage of this Bill remains a priority for the Government. It is my intention to progress the Bill to consultation in the first quarter of this year.

Thank you for your interest in this issue.

Yours sincerely

Vickie Chapman MP

Deputy Premier

Attorney-General

Chapman

South Australian Attorney-General, the Hon Vickie Chapman MP

This article is part of a series. Find other ‘Did You Know?’ posts here.

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