Response from Gillian Triggs re Responsibility for LGBTI Issues at the Australian Human Rights Commission

In July, I wrote about the need for a full-time Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues at the Australian Human Rights Commission (AHRC)[i].

This was in part a response to the actions of Human Rights Commissioner, Tim Wilson, who, while serving as the AHRC spokesperson for SOGII issues, was arguing for the introduction of new rights to discriminate, including against LGBTI couples, as part of any reform to marriage laws[ii].

However, more broadly, it was a reflection of the overall need for the Commission to devote more resources to addressing issues of homophobia, biphobia, transphobia and intersexphobia across Australian society.

As part of that post, I wrote to the President of the AHRC, Gillian Triggs, calling on her to reallocate responsibility for LGBTI issues to a Commissioner other than Mr Wilson. In September, I received the following response from Ms Triggs:

“21 September 2015

Dear Mr Lawrie

Thank you for your letter to me regarding the responsibility for Sexual Orientation, Gender Identity and Intersex (SOGII) Human Rights at the Commission.

The Australian Human Rights Commission comprises the President and 5 Commissioners. As President, I am responsible for all functions of the Commission. However, each Commissioner has a specific portfolio for which they are individually responsible.

I asked Tim Wilson to be the spokesperson on SOGII human rights. However, I and the other Commissioners also contribute public comment on the SOGII portfolio.

Under our statutory mandate at the Commission also has several functions that address the SOGII brief.

  1. We accept and try to resolve by conciliation individual complaints of discrimination and human rights under the four major pieces of legislation. No complaint under these acts can go to a court, unless and until the matter has been considered by the Commission.
  1. We intervene in court proceedings that involve human rights issues and we examine laws relating to certain rights and often propose improvements to those laws.
  1. We conduct national inquiries to bring special attention to issues of concern.
  1. We provide education about human rights to improve awareness, understanding and respect for rights in our community – in particular, the Commission is contributes to the inclusion of human rights education in the development of the National Schools Curriculum and works with the Safe Schools Coalition Australia.
  1. We conduct research and propose new policy and standards which promote the enjoyment of human rights.

The latest example of this is the Resilient individuals: sexual orientation, gender identity & Intersex rights national consultation report, a copy of which I have included in this letter.

The aim of the project was to consult stakeholders to identify key issues that can inform the Commission’s future work on SOGII issues. From June 2014 to January 2015 Cr Tim Wilson travelled nationally to consult lesbian, gay, bisexual and transgender stakeholders in face to face meetings. In addition, over 1550 people participated in an online survey, and over 30 written submissions were received.

While each Commissioner is free to adopt an individual approach to the SOGII portfolio, the Australian Human Right Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.

I hope that this description of the contribution to SOGII matters is helpful.

Best wishes,

Gillian Triggs

President”

[NB Typographical errors in original]

In my view, this letter is not exactly a ringing endorsement of Mr Wilson, or the job that he is doing on LGBTI issues. While it notes the Resilient individuals process and report, led by Mr Wilson, it also makes clear that “I [Gillian Triggs] and the other Commissioners also contribute public comment on the SOGII portfolio” and that “the Australian Human Rights Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.”

Unfortunately, that doesn’t answer the question of whether Ms Triggs and the AHRC are unified in support of the introduction of new rights to discriminate as part of the implementation of marriage equality, something that Mr Wilson advocated for, yet again, last week in the Sydney Morning Herald.[iii]

Nor does it overcome the problem of the AHRC spokesperson on SOGII human rights prioritising the expansion of religious freedoms, including through convening his ‘religious freedom roundtable’ (with the first meeting to be held next Thursday, 5 November 2015), something which usually results in the diminution of rights for lesbian, gay, bisexual, transgender and intersex people.[iv]

However, it appears that these issues aren’t going to be resolved any time soon and, in fact, they may only be conclusively resolved when either the Turnbull Liberal-National Government, or a subsequent Labor Government, finally creates and provides funding for a stand-alone LGBTI Commissioner within the AHRC. Based on the agenda currently being pursued by Mr Wilson, in my opinion that day can’t come soon enough.

President of the Australian Human Rights Commission, Professor Gillian Triggs

President of the Australian Human Rights Commission, Professor Gillian Triggs

[i] “Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission” July 12, 2015: https://alastairlawrie.net/2015/07/12/why-we-need-a-full-time-lgbti-commissioner-at-the-australian-human-rights-commission/

[ii] “Religious freedom and same-sex marriage need not be incompatible” The Australian, 6 July 2015 http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[iii] “Religious freedom isn’t a trump card, but it does need to be a part of marriage equality debate” Sydney Morning Herald, 21 October, 2015 http://www.smh.com.au/comment/religious-freedom-isnt-a-trump-card-but-it-does-need-to-be-a-part-of-marriage-equality-debate-20151020-gkecyn.html

[iv] For more on this issue, see my “Submission on AHRC proposal to create a religious freedom roundtable” September 25, 2015: https://alastairlawrie.net/2015/09/25/submission-on-ahrc-proposal-to-create-a-religious-freedom-roundtable/

Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

As I have written previously, the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was a major achievement for lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Australia[1].

It provided anti-discrimination protections for LGBTI people under Commonwealth law for the first time – including historic world-first specific protections for people with intersex variations.

However, one thing this legislation did not do was establish a statutory position for a Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues within the Australian Human Rights Commission (AHRC) – unlike existing positions for race and sex (indeed, the Sex Discrimination Commissioner is created in section 96 of the same act in which LGBTI anti-discrimination protections now live[2]).

This means there is no guaranteed advocate for LGBTI equality within the AHRC. The current President of the AHRC, Gillian Triggs, has sought to overcome this serious shortcoming by asking the Human Rights Commissioner, Tim Wilson, to also accept responsibility for SOGII issues, in addition to his existing priorities.

Nevertheless, this essentially stop-gap measure does not reconcile the challenges presented when his ‘part-time’ role – his responsibilities for LGBTI matters – conflicts with his full-time role – he was appointed by the Commonwealth Attorney-General, Senator George Brandis, with the explicit mandate to advocate for ‘freedoms’, by which he meant traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

Over the past 18 months, this tension has played out in a variety of ways, including through the failure of the otherwise worthy Resilient Individuals: Sexual Orientation, Gender Identity & Intersex Rights 2015 Report[3] to adequately address the issue of state-sanctioned discrimination by religious organisations against people simply for being LGBT.

However, this conflict has come to a head in a column which Mr Wilson wrote for The Australian last week on the topic “Religious freedom and same-sex marriage need not be incompatible”[4], in which he argued that, should marriage equality legislation be passed in Australia, new rights should be created to allow not just ministers of religion, but also businesses involved in providing wedding-related services (and yes, that includes businesses selling wedding cakes), to discriminate against customers.

Through this column, Mr Wilson has indicated that his first priority is protecting the freedom to discriminate, and that the right of LGBTI Australians not to be discriminated against comes second (and even then arguably by some distance). He has therefore demonstrated that his roles as Human Rights Commissioner, and ‘part-time’ responsibility for SOGII issues, are incompatible.

In the short-term, lesbian, gay, bisexual, transgender and intersex Australians deserve a Commissioner within the AHRC whose existing responsibilities do not cause them to advocate against their interests. In the medium-term, we need a stand-alone full-time Commissioner for SOGII issues within the Commission, to avoid these problems arising in the future.

I have written below two letters, one to the President of the AHRC, Gillian Triggs, calling for Mr Wilson’s responsibilities for LGBTI matters to be reallocated within the Australian Human Rights Commission.

And I have written a second letter to the Shadow Attorney-General, Mark Dreyfus, asking him to support a resolution at the upcoming ALP National Conference to amend the Labor Party Platform to include a commitment to create a new Commissioner for Sexual Orientation, Gender Identity and Intersex Issues within the AHRC.

I have chosen not to write or send a third letter, to the current Attorney-General, George Brandis, given he likely agrees with the actions of Mr Wilson, and it is extremely unlikely that someone who axed funding for the position of Disability Commissioner (and therefore ended the role of the highly-respected disability rights advocate Graeme Innes) last year, would somehow find funding for the creation of a SOGII Commissioner today.

As always, I will publish any responses I receive from Ms Triggs and Mr Dreyfus.

Professor Gillian Triggs

President

Australian Human Rights Commission

GPO Box 5218

SYDNEY NSW 2001

Sunday 12 July 2015

Dear Professor Triggs

PLEASE REALLOCATE RESPONSIBILITY FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the allocation of responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission (AHRC).

Specifically, I call on you to reallocate these responsibilities, which currently lie (informally at least) with the Human Rights Commissioner, Mr Tim Wilson, to another of the Commissioners within the AHRC.

I do so because I believe that the stance which Mr Wilson has adopted, in advocating for traditional freedoms like freedom of religion, has taken precedence over and is increasingly incompatible with the responsibility to advocate for the equal rights, and freedom from discrimination, of lesbian, gay, bisexual, transgender and intersex Australians.

I cite as evidence the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

Mr Wilson may well respond to the above description of his column by indicating he is performing his primary role, which is to advocate for traditional rights and freedoms, including the freedom of religion. I am not disputing that view.

However, I submit that, in doing so, he is not fulfilling his ‘part-time’ responsibilities, which include advocating for the removal of discrimination against lesbian, gay, bisexual, transgender and intersex people.

LGBTI Australians deserve better than to have a ‘part-time’ Commissioner for whom, when potential conflict arises between freedom of religion and their freedom from discrimination, as it does in this situation, the former takes precedence.

I urge you to reallocate the responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission from Mr Wilson to another Commissioner, hopefully to one where there is less apparent conflict between their primary role and these additional functions.

The only way in which such a conflict can be resolved on a permanent basis would be for the amendment of the Sex Discrimination Act to create, and for Government to appoint, a full-time Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the AHRC. I therefore also urge you to advocate for the creation of such a position by the Government.

Thank you in advance for your consideration of this correspondence.

Sincerely

Alastair Lawrie

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

Hon Mark Dreyfus QC, MP

Shadow Attorney-General

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 12 July 2015

Dear Mr Dreyfus

PLEASE SUPPORT THE CREATION OF A COMMISSIONER FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

Specifically, I call on you to help address one of the outstanding issues of this historic legislation – namely, the failure to create a new statutory position of Sexual Orientation, Gender Identity and Intersex (SOGII) Issues Commissioner within the Australian Human Rights Commission (AHRC).

Without such a position, the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are not being as effectively promoted as they could be, and certainly not as effectively as the rights promoted by the statutory Race and Sex Discrimination Commissioners, also within the AHRC.

For example, currently, and in the absence of a statutory position, responsibility for SOGII issues has been allocated, on a ‘part-time’ basis, to the Human Rights Commissioner, Mr Tim Wilson, whose primary role is to advocate for ‘freedoms’, meaning traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

This means that, not only do issues of discrimination that confront LGBTI Australians not receive sufficient time and resources, but they are also secondary to, and sometimes incompatible with, the promotion of other rights like the freedom of religion.

One example of this incompatibility comes from the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

In my opinion as an LGBTI advocate, it is simply not good enough that, when there is a conflict between the freedom of religion and freedom from discrimination, the person with responsibility for SOGII issues within the AHRC promotes the former at the expense of the latter.

The issues of homophobia, biphobia, transphobia and intersexphobia which confront LGBTI Australians, every day, are both real and serious. We deserve a full-time Commissioner within the AHRC to help address these problems – and certainly not a ‘part-time’, informal appointee, whose primary responsibilities can conflict with, and in some instances override, LGBTI rights.

I understand that, at the upcoming ALP National Conference in Melbourne, on July 24-26 2015, there will likely be a resolution to amend the Labor Party Platform to include a commitment to create a new Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the Australian Human Rights Commission.

This resolution is based on recent developments in Victoria, where the new Labor Government has committed to appointing Australia’s first Gender and Sexuality Commissioner within the Victorian Equal Opportunity and Human Rights Commission (VEOHRC)[5].

I call on you, as Shadow Attorney-General, to support moves to amend the Platform in this way, so that the Federal Labor Party can establish the first stand-alone SOGII Commissioner at Commonwealth level when it returns to Government.

Thank you in advance for your consideration of this correspondence.

Sincerely,

Alastair Lawrie

[1] Highs & Lows of 2013, No 2: Australia finally adopts federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex people: https://alastairlawrie.net/2013/12/26/no-2-australia-finally-adopts-federal-anti-discrimination-protections-for-lesbian-gay-bisexual-transgender-and-intersex-people/

[2] “Section 96. Sex Discrimination Commissioner. (1) There shall be a Sex Discrimination Commissioner, who shall be appointed by the Governor-General.”

[3] The Resilient Individuals Report is available here: https://www.humanrights.gov.au/our-work/sexual-orientation-sex-gender-identity/publications/resilient-individuals-sexual

[4] http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[5] VEOHRC Media Release welcoming Budget funding for this appointment: http://www.humanrightscommission.vic.gov.au/index.php/news-and-events/media-releases/item/1225-commission-welcomes-funding-for-lgbti-community-in-state-budget