Tag Archives: homosexuality

Putting the ‘International’ Back into IDAHOBIT: Supporting International LGBTI Rights

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This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here. 

Today we celebrate the International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (variously abbreviated as IDAHO, IDAHOT, IDAHOTB or IDAHOBIT).

In Australia, we do a relatively good job of focusing on what the day means in terms of the challenges that remain in order to achieve lesbian, gay, bisexual, transgender and intersex (LGBTI) rights – domestically anyway.

However, we are much less successful in remembering the first word in the day’s title, and highlighting the even greater barriers left in addressing and overcoming homophobia, biphobia, transphobia and intersexphobia globally.

According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), as of December 2019 there were 68 UN Members States in which consensual same-sex sexual acts remained criminalised, plus Palestine (Gaza), the Cook Islands, and some provinces in Indonesia (from pp47 State-Sponsored Homophobia Report: Global Legislation Overview Update December 2019).

A significant number of these countries are within our region. In Oceania, that includes:

Country Maximum Penalty for Homosexuality
Cook Islands 14 years imprisonment
Kiribati 14 years imprisonment
Papua New Guinea 14 years imprisonment
Samoa 5 years imprisonment
Solomon Islands 14 years imprisonment
Tonga 10 years imprisonment
Tuvalu 14 years imprisonment

There are a number of other countries that criminalise same-sex sexual activity in South-East Asia, too:

Country Maximum Penalty for Homosexuality
Brunei 10 years imprisonment
Malaysia 20 years imprisonment
Myanmar 10 years imprisonment
Singapore 2 years imprisonment

*As well as some provinces within Indonesia, including Aceh.

And Australia has another important connection with a large number of countries that still criminalise homosexuality around the world, with half being members of the Commonwealth (including more than half of countries within the Commonwealth itself).

Therefore, while Australia might have fully decriminalised homosexuality in 2016 (when Queensland finally equalised the age of consent for anal intercourse), there is still a long way to go on this issue internationally.

Screen Shot 2020-05-13 at 10.49.15 am

Source: ILGA

Of course, there is even further to go – both domestically and internationally – for trans and gender diverse people to have the right for their identity documentation to reflect their gender identity based on self-declaration, and to be able to live their lives free from discrimination, violence and in some countries criminalisation. For more, see ILGA’s 2017 Trans Legal Mapping Report.

And, as on so many issues, progress on intersex rights has lagged even further behind, with very few countries following Malta’s 2015 lead in banning coercive surgeries and other involuntary medical treatments on intersex people. That includes Australia, too, with governments at all levels failing to implement the recommendations of the 2013 Senate Inquiry on this subject in the intervening six years. [Unfortunately, I am note aware of an equivalent State-Sponsored Intersexphobia/Intersex Legal Mapping Report].

Thankfully, it’s not all bad news. There has been some significant progress in recent years on at least some of these issues, not least of which was the historic September 2018 decision by the Supreme Court of India to declare section 377 of the Indian Penal Code unconstitutional, thereby legalising homosexuality in the second most-populous country on earth.

That case, after years of amazing advocacy by Indian activists, helps make the following graph look much more encouraging:

ILGA Criminalisation by Population Graph copy

Nevertheless, there are still far too many countries where people are not free to love who they love, not able to identify with their gender and be protected against discrimination, violence and criminalisation, and not subject to coercive surgeries and other involuntary medical treatments because of their sex characteristics.

So, what can Australia do? There are a range of ways in which Australia can better support progress on LGBTI rights internationally, including the following:

  1. Support decriminalisation as a key priority of foreign policy

Australia should support decriminalisation for all LGBTI people around the world as a key human rights objective of our foreign policy. This should include a primary focus on decriminalisation within our region, as well as within the Commonwealth.

Unfortunately, the most recent Foreign Policy White Paper makes exactly zero references to supporting LGBTI human rights (despite my submission calling for their inclusion).

Of course, achieving this goal depends on partnership with communities within these countries, not only because they are best placed to know how to advocate for decriminalisation, but also because Australia acting unilaterally would risk entrenching anti-LGBTI policies and laws.

  1. Support LGBTI rights through international human rights architecture

This includes using our current term on the United Nations Human Rights Council to prioritise LGBTI rights, as well as actively supporting the reappointment of the UN Independent Expert on Sexual Orientation and Gender Identity. And it also includes regularly raising LGBTI rights issues within the Commonwealth Heads of Government framework (with the next CHOGM meeting in Rwanda next year).

Australia could also consider appointing an Ambassador for LGBTI Rights in the same way that we have appointed an Ambassador for Women and Girls.

  1. Support LGBTI rights through foreign aid

Another way in which Australia can better support LGBTI rights internationally is by supporting LGBTI human rights through our foreign aid policies (and of course by ensuring our foreign aid Budget is increased overall, after a series of mean-spirited and unjustified cuts under the Liberal-National Government have reduced it to 0.19-0.21% of GDP, far short of the UN target of 0.70% and far short of our capacity, and responsibility, as one of the richest countries on the planet).

This could include funding for international LGBTI associations, such as the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), OutRight International and Kaleidoscope Trust, as well as other human rights organisations that include a focus on LGBTI rights (such as Human Rights Watch). It also means actively supporting the Commonwealth Equality Network, and LGBTI organisations working towards decriminalisation within our region.

  1. Accept LGBTI refugees and people seeking asylum

We should acknowledge that, while the aim is to ensure lesbian, gay, bisexual, transgender and intersex people are safe everywhere, this is not currently the case and will not be possible in some places for some time. Australia should therefore ensure its refugee framework helps to protect LGBTI people fleeing persecution, including through appropriate assessment processes, and providing improved support services post-resettlement. Oh, and that obviously means not detaining, processing and settling LGBTI refugees offshore, including in countries that criminalise them (for more, see Australia’s (Mis)Treatment of LGBTI Refugees).

  1. Set a better example on LGBTI rights domestically

Australia’s ongoing (mis)treatment of refugees, including LGBTI people seeking asylum, raises another key challenge – in order to better support human rights internationally, we must be seen to respect human rights domestically. That is obviously not currently occurring when it comes to our refugee policy.

It is also not the case in terms of our own treatment of trans and gender diverse people. We must make sure all states and territories follow Tasmania’s recent lead in best practice access to identity documentation on the basis of identity not surgery. And we must finally make long overdue progress on intersex human rights, including protecting the bodily autonomy and integrity of intersex children against coercive surgeries and other involuntary medical treatments.

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As we commemorate International Day Against Homophobia, Biphobia, Transphobia and Intersexphobia (IDAHOBIT) today, we should by all means celebrate how far we have come within Australia, as well as highlighting those challenges that remain domestically. But we must not forget the ‘International’ focus of the day, and the important role Australia can play in making progress on LGBTI rights everywhere, for everyone.

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Submission re Foreign Policy White Paper

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Update:

 

The Foreign Policy White Paper was released in November 2017 (under then Foreign Minister Julie Bishop, and then Prime Minister Malcolm Turnbull).

 

While in all four areas raised in my submission there were improvements from the call for submissions, in each the final outcome remains unsatisfactory.

 

First, after having not even mentioned climate change in the original call for submissions, the White Paper at least discusses climate change and some of the implications it raises for Australia, both here and internationally. This includes from page 33 and again from page 84.

 

However, there is little indication that climate change will be THE international policy challenge facing Australia in the 21st century, and very little discussion about what we will do to avoid it (although perhaps that has more do to with the complete lack of domestic commitment to combatting climate change).

 

Second, and again after not mentioning refugees, people seeking asylum and displaced persons as an issue in the call for submissions, the White Paper does at least discuss the challenge posed by more than 60 million displaced people around the world – albeit in a somewhat cursory fashion on pages 92 and 93 (and with little indication how we will play our role in helping to stop that number from growing even further).

 

Third, there is now some discussion of Australian aid, and the role that it can (and should) play, particularly in the Asia-Pacific region (including a commitment on page 97 that: “Australia will continue to work with international institutions such as the World Health Organization to help prevent, detect and respond to health emergencies and to combat antimicrobial resistance. Australia will invest a further $220 million in the Global Fund to Fight AIDS, Tuberculosis and Malaria, which as saved more than 20 million lives since 2002.”)

 

Although, perhaps unsurprisingly, there is no discussion of how Australia intends to restore our foreign aid budget to at least the 0.50% of GDP target which used to have bi-partisan support, let alone reach the 0.70% United Nations target.

 

Fourth, and finally, the term human rights also makes a belated and welcome appearance in the Foreign Policy White Paper. In particular, there is a pleasing focus on gender equality, and improving the situation for women and girls, both in our region and around the world.

 

However, despite the fact that up to 72 countries continue to criminalise homosexuality (source: ILGA 2017 State-Sponsored Homophobia Report), including our nearest neighbour Papua New Guinea, there is exactly zero reference to support for LGBTI rights around the world.

 

In contrast, there are multiple references of support for freedom of religion (reflecting the same disproportionate attention given to that right, over and above the rights of LGBTI people, that has dominated the Liberal-National Government during the Abbott, Turnbull and now Morrison leaderships).

 

Original Post:

 

 

Below is my personal submission regarding the development of the Australian Government’s Foreign Policy White Paper. Submissions close Tuesday 28 February 2017. For more details, please see the Department of Foreign Affairs & Trade’s website.

**********

Foreign Policy White Paper Submission

c/- whitepaper@dfat.gov.au

 

To whom it may concern,

 

Submission re Foreign Policy White Paper

 

Thank you for the opportunity to provide a submission to inform the Australian Government’s development of its Foreign Policy White Paper.

 

This is a personal submission, prompted by the four-page Call for Submissions, published on the Department of Foreign Affairs and Trade website.

 

In this submission, I will address four main issues that I believe must be addressed in any responsible Foreign Policy White Paper: climate change; refugees; foreign aid; and human rights.

 

Which is why it was so disappointing to note that three of these four issues were not mentioned, at all, in that four-page document.

 

There was not even a single mention of the threat posed by global warming, the humanitarian challenge of the growth in displaced persons and people seeking asylum, or the need to promote the human rights of all people, including lesbian, gay, bisexual, transgender and intersex (LGBTI) people, around the world.

 

Admittedly, there was at least one cursory reference to “our overseas development assistance program”, although, as we shall see below, even that was inadequate.

 

In any event, please see below my explanation of why each of these four policy areas must form a central part of the Foreign Policy White Paper that is expected to be released in late 2017.

 

  1. Climate Change & Global Warming

 

I find it extraordinary that the White Paper call for submissions completely failed to mention[i] what must be the most important challenge facing the world in the 21st century: climate change, and specifically accelerating global warming.

 

In 2017, there is no doubt that the actions of humans have contributed to a rapidly warming planet. Indeed, the Government’s own Bureau of Meteorology confirmed, in its most recent Annual Climate Statement[ii], that:

 

  • 2016 was Australia’s fourth warmest year on record, 0.87 degrees above the long-term average
  • It was also the warmest year on record for ocean temperatures in the Australian region, with an annual mean sea surface temperature 0.73 degrees above average, and
  • Our three most populous states, NSW, Victoria and Queensland, also had the highest average minimum temperatures on record during the past 12 months.

 

Globally, the news is even more confronting. The same report confirmed that:

 

  • 2016 was the warmest year on record around the world, 0.83 degrees above the long-term average
  • “This surpasses the previous record set in 2015, and is the third year running that the new record has been set” [emphasis added]
  • January, February, March, April, July, August and December 2016 were all the warmest respective months on record, and
  • “The global ocean surface temperature for the calendar year was also the warmest on record in 2016, surpassing the record set in 2015.”

 

This is nothing short of a climate emergency. And it is a situation that will directly affect Australia, and its people, just as it affects every other country and people in the world (after all, if the planet cooks, we will all cook with it).

 

The threat of climate change is an international problem – consequently, the response to it must be international in nature too. That includes a response from Australia, both through domestic policy (with the introduction of an effective price on carbon), but also in its foreign policy settings.

 

Climate change generally, and global warming specifically, may well be the most significant challenge we, as a species, have ever faced. I believe responding to this threat must be the number one priority of any new Foreign Policy White Paper that the Australian Government produces.

 

170227-climate-change-final

Climate change is real, and it cannot be ignored (source: Bureau of Meteorology).

 

  1. Refugees and People Seeking Asylum

 

A second issue that, almost as bizarrely, is not even mentioned in the Foreign Policy White Paper call for submissions is the growing number of displaced people around the world, including refugees and people seeking asylum.

 

This is despite the fact that the most recent Global Trends: Forced Displacement report by the United Nations High Commissioner for Refugees (UNHCR)[iii] noted that “[g]lobal forced displacement has increased in 2015, with record-high numbers.”

 

Indeed, that same report revealed there were:

 

  • 65.3 million forcibly displaced persons worldwide, including
    • 21.3 million refugees
    • 40.8 million internally displaced persons, and
    • 3.2 million asylum seekers
  • 12.4 million people newly displaced due to conflict or persecution in 2015 alone, and
  • 2.0 million asylum applications submitted (a new record-high) with 441,900 asylum claims just in Germany as a result of the war in Syria.

 

It should not have taken widely-shared, tragic photographs of Alan Kurdi in September 2015 to make us realise this is truly a global humanitarian crisis.

 

The numbers alone confirm that this is an international issue of the highest order, and addressing its causes, while responding to the consequences, must be a foreign policy priority for all countries, including Australia.

 

One of the many depressing statistics found in the UNHRC’s report confirms that it currently is not: “[d]uring 2015, the total number of refugees admitted for resettlement stood at 107,100”[iv]. That’s 107,100 out of a total of 21.3 million.

 

Of course, the Australian Government may claim that, given 9,400 of those refugees were resettled here (the third-highest of any country), we do not need to do more.

 

But that ignores the fact we benefit from our location, and isolation, and therefore do not have the same number of in-country applications for asylum as other places. And it also overlooks the wealth and privilege we currently enjoy.

 

As a country we can, and must, do more in response to the growing number of displaced persons around the world, and that should be reflected in our new Foreign Policy White Paper.

 

170227-unhcr-forced-displacement-2015-final

Source: UNHCR

 

  1. Foreign Aid

 

The one issue, out of the four priority areas highlighted above, that is at least touched on in the call for submissions is foreign aid. Topic 5: Australia confronts a range of strategic, security and transnational challenges on page 3 includes the following question:

 

“How can our foreign policy, including our overseas development assistance program, support a more prosperous, peaceful and stable region?”

 

However, while this question at least acknowledges the importance of foreign aid (or in this case ‘overseas development assistance’), it does so largely within the framework of Australia’s national interest, rather than in the context of our common humanity.

 

Irrespective of this broader ‘framing’, one of the main answers to this question is actually to increase our foreign aid spending.

 

Drastic budget cuts to Australia’s foreign aid budget in recent years – with $1 billion, or 20%, cut in 2015-16, and a further $224 million reduction in 2016-17 – have seen foreign aid as a share of Gross Domestic Product (GDP) fall to an estimated 0.23%[v].

 

Indeed, “[b]etween 2012 and 2016, Australia’s foreign aid as a share of national income has fallen steeply from 0.36% to 0.23%.”[vi]

 

This leaves our foreign aid allocation at less than half the previous bipartisan goal of reaching 0.5% of GDP by 2015.

 

And, significantly, it is less than one third of the United Nations target that countries provide at least 0.7% of their national income as foreign aid.

 

The cuts to foreign aid have the potential to cause real and lasting damage across our region, and around the world, to countries and people that can least afford it.

 

As a result, I believe that the Foreign Policy White Paper should feature both a recommitment to the United Nations target, as well as a de-coupling of our foreign aid budget from an almost-exclusive focus on Australia’s national interest.

 

If we fail to do either, then we are at grave risk of changing from the land of ‘the fair go’ to the country of ‘what’s in it for us?’

 

170227-foreign-aid-gdp

Foreign aid as a share of GDP is plummeting, according to the Government’s own figures (source: The Conversation).

 

  1. Human rights, including LGBTI rights

 

There is one final issue that is completely omitted from the four-page Call for Submissions regarding the Foreign Policy White Paper: international human rights.

 

As a long-term LGBTI advocate and activist, I would like to focus on one specific sub-set of international human rights – the rights of lesbian, gay, bisexual, transgender and intersex people around the world.

 

In June 2016, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) estimated that same-sex sexual acts were illegal in 72 states, or a full 37% of United Nations members[vii]. This includes 13 States (or part thereof) where same-sex sexual acts attract the death penalty.

 

The criminalisation of homosexuality is also a particular problem in our own region of Oceania, with prohibitions in our nearest neighbour Papua New Guinea, as well as Kiribati, Samoa, Solomon Islands, Tonga and Tuvalu (plus Cook Islands who are associates to New Zealand).

 

There are an additional four countries in South-East Asia where same-sex acts remain illegal (Brunei Darussalam, parts of Indonesia, Malaysia and Singapore).

 

Long-standing LGBTI advocate Peter Tatchell last week actually stated that “[t]here remain 75 countries and dependent territories that still criminalise same-sex relations – with nearly half of these jurisdictions outlawing both male and female homosexuality”.[viii]

 

And, in a specific challenge to countries like the United Kingdom and Australia, he observed that “[h]omosexuality remains criminalised in 36 out of the 52 Commonwealth member states” where “[m]ost of these anti-gay laws were imposed by Britain during the colonial era.”[ix]

 

The ongoing criminalisation of people on the basis of their sexual orientation, as well as other anti-LGBTI human rights abuses such as the involuntary sterilisation of intersex infants and the failure to recognise and accept trans and gender diverse people, is a major problem in the early 21st century.

 

I believe Australia should adopt a pro-active role in supporting groups that are working to address these human rights violations, both in our region (where, as we have seen above, there is plenty of work still to do) and around the world.

 

We should also seek, wherever possible, to progress the positive recognition and acceptance of LGBTI human rights in international forums, including the United Nations as well as other groups such as the Commonwealth Heads of Government Meeting (CHOGM).

 

Finally, both of these activities – support for the work of LGBTI rights organisations in our region and globally, as well as the pursuit of LGBTI human rights internationally – should be reflected in the Foreign Policy White Paper.

 

170227-ilga-sexual-orientation-criminalisation-map

Same-sex sexual activity remains criminalised in far too many countries around the world (source: ILGA).

 

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Obviously, in each of the four issues outlined in this submission – climate change, refugees, foreign aid and LGBTI rights – the Australian Government can be legitimately criticised for not doing enough to achieve progress domestically.

 

We can and must do better in terms of reducing our own carbon emissions, of adopting a more humane approach to refugees and people seeking asylum, of increasing our foreign aid budget and of respecting the rights of lesbian, gay, bisexual, transgender and intersex Australians.

 

But, at the same time as addressing these ourselves, I believe we can – and above all must – help to achieve progress on these issues globally, because the rise of global warming, the growth in the number of displace persons, the unmet need for foreign aid, and discrimination against LGBTI people, are problems that transcend state borders.

 

Which means the solutions cross state borders too – and that therefore Australia has a role to play in fixing them.

 

Thank you in advance for taking this submission into account as the Australian Government develops its Foreign Policy White Paper.

 

Please do not hesitate to contact me, at the details provided, should you require additional information.

 

Sincerely,

Alastair Lawrie

 

Footnotes:

[i] Question 2, on page 3 of the call for submissions, refers to ‘environmental degradation’, a phrase that is so vague it can be interpreted in multiple ways, and does not begin to capture the urgency of the climate emergency we currently face.

[ii] Bureau of Meteorology Annual Climate Statement 2016.

[iii] UNHRC, Global Trends: Forced Displacement in 2015.

[iv] Ibid, page 26.

[v] The Conversation, Savage budget cuts pull Australia down in foreign aid rankings, May 4, 2016.

[vi] Ibid.

[vii] See ILGA, State-Sponsored Homophobia 2016 report here.

[viii] Guardian, There are reasons to be cheerful… LGBTI rights gains in unlikely countries, February 20, 2017.

[ix] Ibid.

30th anniversary of decriminalisation of homosexuality in NSW

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Tonight, at midnight, it will be exactly 30 years since gay and bisexual adult men in New South Wales moved from being criminals to being able to engage in consensual sexual intercourse without fear of prosecution.

Then NSW Premier, the Hon Neville Wran MP’s, private member’s bill – the Crimes (Amendment) Act 1984 – had passed the NSW Parliament on 22 May, but did not take effect until the 8th of June, 1984.

This legislation, decriminalising male same-sex sexual intercourse (for people aged 18 or over – sadly, an equal age of consent had to wait another 19 years), was the product of 14 years of hard work and tireless campaigning of gay and lesbian (and of course some early trans*) rights activists.

From the founding of the Campaign Against Moral Persecution (CAMP) in September 1970, through the proliferation of gay liberation groups during the 1970s, to the courageous ‘78ers’ who resisted NSW Police violence at the first Sydney Gay Mardi Gras Parade, and the Gay Rights Lobby, formed in 1980 – as well as numerous other groups advocating for equality on the basis of sexual orientation – this achievement was truly a collective effort.

It is thanks to the courage of these activists, who stood up and fought for their (and our) rights, to be public and be proud at a time when they were threatened with criminal sanction for simply being who they were, that people like my fiancé Steve and I can enjoy, and even take for granted, such a wide range of freedoms today.

It is because of this that I simply wanted to take this opportunity to express my gratitude for what they achieved, for themselves, for us and for future generations. To them, I say thank you. Thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you, thank you.

That’s one thanks for every year of freedom that we have enjoyed since the decriminalisation of homosexuality 30 years ago. To any of those activists who might one day read this post (highly unlikely, but then you never know), please know that we appreciate what was done, and that we owe you.

Of course, there is one way that we can try to repay at least a small part of that debt, and that is to continue pushing for legislation which allows all those who were convicted due to the homophobia of the criminal law – both before decriminalisation in 1984, and because of the unequal age of consent between 1984 and 2003 – to have those convictions expunged.

The Liberal Member for Coogee, Bruce Notley-Smith, is expected to introduce a private member’s bill to achieve just that later in June. We should lobby to ensure as many MPs as possible support this effort at redressing past injustices.

At the same time, the NSW Parliament should expressly apologise to all those harmed – both at the time and, for many, for a lifetime – by the homophobic laws which emanated from that place for far too long.

Legislation to expunge historical convictions, accompanied by a parliamentary apology for historic injustices, would be a fitting way to mark the 30th anniversary of decriminalisation of homosexuality in NSW. Let’s do what we can to make sure it happens.

Decriminalisation campaigners, including Lex Watson, at the Gay Rights Embassy opposite then Premier Neville Wran's home in 1983 (source: Adrian Short as published in Sydney Morning Herald).

Decriminalisation campaigners, including Lex Watson, at the Gay Rights Embassy opposite then Premier Neville Wran’s home in 1983 (source: Adrian Short as published in Sydney Morning Herald).

Letter to NSW Premier Mike Baird re LGBTI Equality and Conscience Votes

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In Question Time on Wednesday 7 May 2014, the Independent Member for Sydney, Alex Greenwich MP, asked the new Liberal-National Premier, the Hon Mike Baird MP, about his, and his Government’s, support for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community of NSW.

I have reproduced the text of both the question and answer below, along with highlighting a couple of points of particular interest:

LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX COMMUNITY SUPPORT

Mr ALEX GREENWICH: My question is addressed to the Premier. Will he build on the support of previous Premiers for the lesbian, gay, bisexual, transgender and intersex communities, including supporting ACON, the Sydney Gay and Lesbian Mardi Gras, Twenty10 and the Gender Centre, and allowing at least a free vote on lesbian, gay, bisexual, transgender and intersex-related legislation?

Mr MIKE BAIRD: I thank the member for his sensible question and for the work he does in his community. One of the hallmarks of my Government will be respect for all people and all communities. My Government will not judge people on the basis of race, religion or sexuality. My Government will judge each individual by how he or she behaves and what he or she contributes to the community and those around them. Discrimination against any individual or group on the basis of race, religion or sexuality has no place in New South Wales. Members of the lesbian, gay, bisexual, transgender and intersex community can continue to have the Government as a great supporter. I give the same personal commitment as Premier. One of the biggestevents staged in Sydney every year is the Gay and Lesbian Mardi Gras parade, which enjoys strong bipartisan support. It has enjoyed funding since 2009, which continues under a Liberal-Nationals Government, and some 20,000 overseas and interstate visitors generate approximately $30 million for the visitor economy.

This financial year the Government has provided more than $300,000 in funding for ACON to deliver a range of HIV prevention, care and support programs for people with HIV, sex workers, outreach projects, and needle and syringe programs. Earlier this year the Government and ACON jointly funded the Ending HIV campaign. In 2013-14 the Government has provided more than $600,000 to the Gender Centre and Twenty10, which is a non-profit welfare organisation located in Chippendale that has been operating for more than 30 years. Government support is provided through the Sydney West Local Health District Youth Service and the Department of Family and Community Services. I thank and admire the hardworking staff at these organisations for the work they do in the community.

In August this year the Gay Rugby World Cup, known as the Bingham Cup, is coming to Sydney. The Government will provide financial and in-kind support for up to 40 teams from 15 countries. Some 1,500 players and 10,000 spectators will flock to the event. I refer to conscience votes and pay tribute to the former Premier. His leadership on matters of conscience was exemplary and showed this Parliament how members should respond on matters of conscience. I say to the member for Sydney that my position will be exactly the same as the position of the former Premier, who showed great leadership on matters of conscience; so too will the Government I lead. I look forward to working together on these issues.

The two issues highlighted – the unequivocal commitment to equality based on sexuality, and the question of when a conscience vote should be granted – have prompted me to write the following letter to Mr Baird.

The Hon Mike Baird MP

Premier of NSW

GPO Box 5341

Sydney NSW 2001

Sunday 25 May 2014

Dear Premier Baird

SUPPORT FOR THE LGBTI COMMUNITY OF NSW

I am writing regarding the answer which you gave in the Legislative Assembly on Wednesday 7 May 2014 to a question from the Member for Sydney about your, and your Government’s, support for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community of NSW.

In particular, I would like to ask you questions about two of the comments which you gave. First, I note that in your answer you said the following:

“Discrimination against any individual or group on the basis of race, religion or sexuality has no place in New South Wales. Members of the lesbian, gay, bisexual, transgender and intersex community can continue to have the Government as a great supporter. I give the same personal commitment as Premier.”

I am interested to know how far your personal commitment to and support for the LGBTI community extends. Specifically, in this quote you state that “[d]iscrimination against any individual or group on the basis of… sexuality has no place in New South Wales” and yet you have previously voted against equal adoption rights for same-sex couples.

Does this statement, which contains no equivocation, mean that you now concede your previous position on same-sex adoption was wrong? Will you give an explicit commitment to support equal adoption and other parenting rights for LGBTI couples and families in the future?

Given the absence of any qualifications on your support for non-discrimination on the basis of sexuality, I am also interested to know your position on the exceptions which are offered to religious organisations under the Anti-Discrimination Act 1977. These exceptions significantly and substantively undermine the anti-discrimination protections which currently exist for lesbian, gay and trans* people in NSW.

Do you support the removal of religious exceptions, such as section 56(d), from the NSW Anti-Discrimination Act 1977 in order to better protect LGBTI people from discrimination? Or do you wish to amend the answer that you gave in Question Time to instead read: “[d[iscrimination against any individual or group on the basis of… sexuality has no place in New South Wales unless it is performed by a religious organisation, in which case such actions will be protected by law”?

Secondly, I would like to find out more details about your position on conscience votes regarding LGBTI rights. In your answer in Parliament, you made the following comment:

“I say to the member for Sydney that my position will be exactly the same as the position of the former Premier, who showed great leadership on matters of conscience; so too will the Government I lead.”

It is unclear from this answer exactly where you would draw the line on conscience votes. It is assumed that this means you would allow a conscience vote on same-sex marriage were it to return to the NSW Parliament for a fresh vote (although, given the High Court’s decision last December, that would appear to be both unlikely and unproductive).

Alternatively, does this mean that you would allow conscience votes for Liberal and National Party members if Bills were introduced seeking to wind back rights which are already enjoyed by LGBTI people in NSW? For example, would you support a conscience vote on a Bill which sought to remove the equal rights of same-sex couples to adopt? It would be disappointing if your Government did anything other than vote against such a Bill en bloc.

It is also expected that legislation will be introduced in the next few months which seeks to allow gay and bisexual men who were convicted because of the illegality of homosexuality before 1984, and because of the unequal age of consent between 1984 and 2003, to have their convictions expunged. This Bill will go some way to redressing the very real injustices, and long-term consequences, caused by the homophobic criminalization of homosexuality, and the equally homophobic unequal age of consent.

Again, it would be incredibly disappointing if members of the Government were free to vote against such a Bill, especially because the only way that this Bill would be a ‘matter of conscience’ for an MP is if they still believed that sexual intercourse between men was morally wrong.

For these reasons, I would greatly appreciate it if you could clarify your position on conscience votes, in particular whether they would extend beyond state-based same-sex marriage, and whether you would allow Liberal-National Government MPs to vote to repeal same-sex adoption rights, or to vote against the expungement of historical convictions.

Thank you in advance for considering the issues and questions raised in this correspondence.

Sincerely,

Alastair Lawrie

How far does Premier Baird's support for the LGBTI community extend? (image source: The Conversation).

How far does Premier Baird’s support for the LGBTI community really extend? (image source: The Conversation).

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

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UPDATE: Sunday 20 July 2014

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

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

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

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

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

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

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

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

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

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

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

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

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

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

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

Some quick thoughts on the above:

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

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

ORIGINAL LETTER

The Hon Scott Morrison MP

Minister for Immigration and Border Protection

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 2 February 2014

Dear Minister

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

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

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

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

Specifically, Amnesty International found that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I look forward to your response on this important issue.

Yours sincerely,

Alastair Lawrie

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

No 1 Australia Sends LGBTI Refugees to Countries which Criminalise Homosexuality

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I wish that I could have finished this countdown with something more positive. Indeed, I was tempted to elevate the achievement of the Sex Discrimination Amendment Act 2013 to No 1, just so I could end on a high note.

Alas, Australia’s ongoing mistreatment of refugees, including the gross violation of their human rights, is simply too heinous to ignore, and too severe to downplay. And in 2013, these abuses reached a new low, with the then Rudd Government introducing, and the incoming Abbott Government retaining, a new policy to permanently resettle refugees who arrive by boat in Nauru and on Manus Island in Papua New Guinea.

More than just a fundamental breach of Australia’s international obligations, this policy is an attempt to permanently turn our backs to the humanity of people fleeing persecution in other countries, people who were seeking our compassion but, when they arrived, found none.

All of this is bad enough to attract the opprobrium of anyone interested in human rights, including LGBTI rights. But there is a special reason for LGBTI activists and advocates to oppose the resettlement of refugees in Nauru and Papua New Guinea – and that is that both countries continue to criminalise male homosexuality, by up to 14 years imprisonment.

While the letter of the law only applies to male homosexuality, any place which criminalises sex between people of the same-sex is not a safe environment to send refugees who are lesbian, gay, bisexual, transgender or intersex. The potential dangers of doing so were apparent when the then Gillard Government first announced that Nauru and Manus Island were to be re-opened as ‘offshore processing centres’ in mid-2012.

At the time I wrote to the Immigration Minister, Chris Bowen, asking him whether the Government supported the rights of LGBTI asylum-seekers, and whether they could guarantee that the laws criminalising homosexuality would not be applied to the people we sent there (original letter: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/). A similar letter was sent to then Opposition Immigration Spokesperson Scott Morrison.

It took almost ten months, and some harassment, for the Government to reply, and when they finally did, in June 2013, they did not answer the question – effectively conceding that the criminal laws of Nauru and Papua New Guinea do apply to LGBTI refugees we send there (response here: https://alastairlawrie.net/2013/06/30/lgbti-refugees-on-nauru-manus-island/).

In a sign of things to come, Mr Morrison never replied. All of which meant that I was completely unsurprised by the Amnesty International Report “This is Breaking People”, released on 11 December 2013, which spelled out just how awful the consequences of this policy are for LGBTI asylum seekers (report here: http://www.amnesty.org/en/library/asset/ASA12/002/2013/en/b2f135dc-3353-420d-b587-05d2b3db6e2f/asa120022013en.pdf see especially discussion on pages 73-75).

But just because I am unsurprised, does not mean I am not outraged – and you should be too. In short, gay refugees sent to Manus Island are:

  • Told that same-sex sexual activities are prohibited
  • Told that, if they engage in same-sex sexual activities, they will be reported to PNG Police (despite there being no legal onus for the operators to do so)
  • NOT provided with condoms (and with safe-sex education comprising a talk telling them not to have sex) and
  • Subject to bullying and harassment from other detainees on the basis of their sexual orientation.

In such circumstances, it is even less surprising that the senior Australian Government official at the camp, Renate Croker, said she was unaware of any person claiming asylum on the basis of persecution due to their LGBTI status.

Not only is this apparently incorrect – with Amnesty International interviewing several gay male asylum-seekers, including at least one quoted as saying he had made a claim on that basis – it also ignores the fact that people can be LGBTI but claim asylum because of persecution on other grounds (eg race, religion).

Indeed, one of the refugees interviewed claimed that other people have considered changing and/or changed their applications to be refer to other grounds, rather than be exposed to further bullying or harassment inside the camp, as well as to minimise the threat of being reported to PNG Police. He further “explained that some gay men have chosen to return to their home countries with IOM [International Organization for Migration]’s assistance, despite the risks they face upon return.”

All of which made the comments of Minister Morrison in response to the report all the more chilling. The following excerpt is taken from Oliver Laughland’s excellent article in the Guardian Australia on 13 December (titled Scott Morrison denies Amnesty report findings on Manus island detention):

Morrison said this [automatic reporting to PNG Police] was not the policy of the government but added all asylum seekers on Manus were provided with “clear advice” on “relevant laws” in Papua New Guinea. Homosexuality is illegal in PNG and can carry a 14-year sentence. Morrison was asked repeatedly by Guardian Australia if the “relevant laws” included those relating to homosexuality but he declined to go into detail, adding: “In these press conferences you get to ask the questions, you don’t get to give the responses as well.” Morrison added that the department was “unaware of any claims or declarations of homosexuality or of any reports of homosexuality being investigated by the police at the centre”. [full article here: http://www.theguardian.com/world/2013/dec/13/scott-morrison-denies-amnesty-report-findings-on-manus-island-detention).

In short, our current Immigration Minister has all-but confirmed that PNG laws criminalising homosexuality apply to LGBTI refugees sent there, as well as expressing a clear lack of understanding about the nature of sexual orientation, homophobia and the reasons why LGBTI refugees might not want to make a ‘declaration’, including but not limited to the risk of criminal punishment.

All-in-all, the situation confronting LGBTI refugees sent to Manus Island, and by extension, Nauru, is a nightmare. But it cannot be divorced from the broader nightmare that is Australia’s bipartisan ‘Pacific Solution Mark II’. The fact that we are sending any refugees to be processed, and permanently resettled, on Nauru and in PNG is a massive failure of our political system, and of the Australian people for allowing it to happen, for it to be done in our name.

Tragically, as 2013 draws to a close, it is unclear how any of this is going to change. I would like to be able to end this article, and this countdown, by saying something like “Here’s hoping in 2014 we take the first steps towards a humane refugee assessment system.” But the pessimist in me, reflecting on all of the events of the past 12 to 18 months, wants to say instead “Please just don’t let it become any worse”.

No 5 Homosexuality Still Criminal in 77 Countries

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The past four posts have looked at one issue (marriage equality, both domestically and around the world) and gay rights in two specific countries, Russia and India.

The subject matter of each of these four posts has received significant media coverage – for some pretty obvious reasons. Same-sex couples seeking the right to marry provide both a ‘human interest’ story, and usually some compelling images to accompany it. Putin’s crackdown on LGBTI Russians has inevitably received widespread attention, particularly in the lead-up to the Winter Olympics. And it is pretty hard to ignore the re-criminalisation of homosexuality in a country with more than 1.2 billion people.

But, comparatively, it has been much easier for the media to ignore the ongoing criminalisation of homosexuality in 77 countries across the world (including India after the recent Supreme Court decision, but excluding Russia where, despite the anti-propaganda law homosexuality itself remains legal).

To put that figure into perspective, that is five times the number of countries that have full marriage equality (or more than four times the number of countries including those where some parts have adopted marriage equality, like the United States). So, while some parts of Europe and North and South America (together with South Africa and New Zealand), push forwards towards full equality, more than a third of countries around the world still treat homosexuality as a criminal offence.

This includes 38 countries in Africa, while 41 countries come from the Commonwealth (which is pretty extraordinary when you consider there are only 53 member states in total).

Tragically, the are five countries – Iran, Mauritania, Saudi Arabia, Sudan and Yemen – where homosexuality attracts the death penalty, while capital punishment also applies in parts of Nigeria and Somalia.

Which is a scandalous state of affairs, and something that the media – including but not limited to the LGBTI media – should report, and reflect, more on.

There have been some encouraging recent signs – in terms of coverage, if not subject matter. Over the past week, moves to increase criminal penalties in Uganda and Nigeria have attracted attention globally. The murder of Eric Ohena Lembembe in Cameroon mid-year was also covered, as have, periodically, anti-gay developments in Zimbabwe, Iran and elsewhere.

What has also been encouraging during 2013 has been the debate, within the Australian LGBTI community, about the need for advocacy for global LGBTI rights. Sparked in part by the situation in Russia, there has finally been a discussion about the relative priority we give something like marriage equality, compared to decriminalisation around the globe.

After all, while we are fighting for the right to walk down the aisle, our LGBTI comrades elsewhere are fighting simply for the right to exist. I’m not suggesting that we have those priorities right – in fact far from it. But I get the feeling that we are closer to achieving a better balance at the end of 2013 than at the beginning.

Some of the organisations that have helped to promote the global push for decriminalisation include the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA: http://ilga.org), AllOut (https://www.allout.org), the Kaleidoscope Trust (http://kaleidoscopetrust.com), and of course Amnesty International (a link to the NSW LGBTQI Network here: http://www.amnesty.org.au/nsw/group/12065/). I would encourage you to support any or all of them.

One final point I would like to make is that there are things that the Australian Government can and should be doing with respect to this issue, not just raising it (diplomatically, in all senses of the word) through international forums and bilaterally, but also by providing aid to global campaigns for sexual orientation, gender identity and intersex status equality.

One special burden which falls upon Australia is its own responsibility for the criminal laws which still exist in our former ‘colony’, Papua New Guinea, which were in place before Independence in September 1975. Because of that fact, it is imperative that the Australian Government – and the Australian LGBTI population generally – helps to encourage moves in our closest neighbour to decriminalise homosexuality. Hopefully that day, not just in PNG but right across the South Pacific, is not too far away.

No 6 India’s Supreme Court Re-criminalises Homosexuality

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One of the more disappointing developments of the year was also one of the last in terms of LGBTI rights. On 11 December, India’s Supreme Court effectively re-criminalised homosexuality in the world’s second most-populous nation.

They did so by overturning the Delhi High Court’s July 2 2009 decision in Naz Foundation v Govt of NCT of Delhi, which had found that section 377 of India’s penal code was unconstitutional in so far as it applied to sex, including gay sex, between consenting adults.

While the Supreme Court did find that section 377 was discriminatory and that gay sex between consenting adults should not be criminal, it nonetheless decided that the matter is one for Parliament to resolve, rather than the Courts, and consequently ‘revived’ the application of section 377 to homosexuality.

For its part, the Indian Government has expressed its disappointment with the Supreme Court’s decision. Sonia Gandhi, president of the ruling Congress Party, described section 377 as “an archaic, unjust law”, while Finance Minister P Chidambaram is reported as saying that the ruling had taken India “back to 1860” (the year the law was first introduced).

In the past 24 hours, the Indian Government has filed a petition in the Supreme Court asking it to review its decision to reinstate section 377, on the basis that it “violate[s] the principle of equality.”

The Law Minister, Kapil Sibal, has tweeted that “[t]he government has filed the review petition on Section 377 in the Supreme Court today. Let’s hope the right to personal choices is preserved”.

What they haven’t done is commit to introducing legislation to overturn section 377 themselves, instead preferring to hand it back to the judicial branch of government to resolve. Which means that, for however long the petition takes to resolve, consensual sex between same-sex attracted adults will remain a crime in India (after the all-too-brief 4 and a half year era of decriminalisation).

The decision not to legislate at this stage is obviously a tactical one. A national election is due before 31 May 2014, and with the opposition Bharatiya Janata Party (BJP) adopting a more hard-line conservative position in response to the decision, there is the potential for them to use the issue as a pre-election wedge.

However, if the BJP and its Coalition parties do form government next year then, as well as making it unlikely that legislation to decriminalise homosexuality will be passed by parliament, it will also throw the status of the current Government’s petition to the Supreme Court (assuming it hasn’t been heard) into doubt.

In short, the situation is a bit of a mess.

But, before we judge too harshly the efforts to date of India’s Parliament on this issue, including those of the Congress Party-led Government, it is important to remember where the original blame for section 377 lies.

After all, we are expecting the current Indian political (and judicial) system to clean up the mess left by the British imperial Government of the 19th century. Just like other European ‘colonial’ powers, the British left a legacy of legal – and cultural – homophobia in its wake.

In fact, the British were especially talented at spreading homophobia around the world. More than half of all countries where homosexuality is illegal in 2013 are current members of the Commonwealth of Nations (more on that topic in the next post).

Indeed, the actions of the British Empire during the 19th and 20th centuries place a special burden on the United Kingdom (as well as Canada, Australia and New Zealand) to do whatever they can to assist fellow Commonwealth countries along the path towards decriminalisation.

Nevertheless, despite the original blame for section 377 lying elsewhere, the people with the power to finally abolish it are in India – either on the judicial, or parliamentary, benches. Here’s hoping they find the courage to do so shortly, and allow millions of LGBTI people to return to living their lives free from the threat of prosecution, or police intimidation.

No 7 Russia’s Anti-Gay Crackdown

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What is happening in Russia is horrible. The introduction of Putin’s laws, making so-called ‘gay propaganda’ illegal, is obviously a significant blow to both the country’s LGBTI population and to any concept of Russian democracy.

It is made worse because the laws are not some idle threat – they are being actively enforced against brave protesters who have the temerity to stand up and say that “To be gay and to love gays is normal. To beat gays and kill gays is criminal” as Dmitry Isakov did (just this week Dmitry was fined 4000 roubles for doing so, the third Russian to be prosecuted under the laws after Nikolai Alexeyev and Yaroslav Yevtushenko).

But, if it were ‘just’ these laws (and yes, I know that it is almost impossible to use the word ‘just’ in this context), then what is going on in Russia would probably not stand out in a world where homosexuality remains criminal in 77 countries (and where, despite these laws, Russia still does not technically criminalise homosexuality).

However, the sad reality is that the laws criminalising gay propaganda seem to be just the start. They have been accompanied by a wave of homophobia affecting many aspects of Russian society.

Legally, a threat hangs over rainbow families that their children will be taken away from them (as an Australian, the idea of children being stolen because of their parents’ social group is especially poignant).

There have also been widespread acts of physical violence and intimidation against LGBTI Russians, including numerous hate crimes and, tragically, murders. Gay clubs have been attacked, with bullets and with fire.

And the cultural debate has degenerated to the point that a Russian actor, Ivan Okhlobystin, can say that “I would have them [gays] all stuffed alive inside an oven. This is Sodom and Gomorrah, as a believer, I can not remain indifferent to this, it is a living danger to my children!” – and be applauded.

It is not just that last comment which has made many people think back 80 years to political developments to the West of Russia, in Italy and, especially, Germany. While I do not throw the word fascist around lightly (and we are, thankfully, still some distance away from the worst of Hitler’s regime), the scapegoating of a minority group in the way Russia is doing now certainly brings fascism to mind.

Part of what makes this a difficult subject to write about is that, as an Australian LGBTI activist, it is hard to work out what the best response is. So hard, in fact, that it is almost tempting to forgive the initial ‘kneejerk’ reaction of some people who indicated their disgust at the actions of Putin & co by boycotting Russian vodka (‘vodka revolution’ anyone?).

Others have concentrated their advocacy around the upcoming Winter Olympics, to be held in Sochi from February 7 to 23. While most calls to boycott seem to have died down (it was always going to be an unlikely outcome, especially in the apparent absence of a united position from Russian LGBTI groups calling on us to do so), there will be other ways to draw attention to the state-sponsored homophobia of Putin’s Russia during that fortnight.

In particular, the campaign by @allout and Athlete Ally, focusing on Principle 6 of the Olympic Charter (which states that any form of discrimination is incompatible with the Olympics), seems like a sensible way to go about it (especially because it allows athletes to take a political stand without falling foul of the Olympics rules against ‘politicising’ sports).

But the problem, with this and other campaigns, will come in the days and weeks after the closing ceremony, when the spotlight of the world’s media turns elsewhere. Because it will be very easy for the Russian Government to ensure that nothing negative happens for a couple of weeks, especially to the athletes, tourists and reporters converging on Sochi.

It is far more important to focus on what is happening to Russia’s LGBTI population now, in the days leading up Sochi, what happens elsewhere in Russia during the Games, and what will happen in the months and years that follow.

We must make sure that we don’t avert our gaze just because the global media caravan moves on. We must continue to pressure our own Governments to take action on this issue, raising it with their Russian counterparts. And, above all, we must continue to communicate with Russian LGBTI groups to learn from them what we can do to help them in their fight.

No 12 The End (Almost) of the Homosexual Advance Defence in NSW

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One of the more pleasing aspects of law reform in NSW over the past 12 months has been signs of progress – at last – on the subject of the homosexual advance (or “gay panic”) defence.

The Legislative Council Select Committee on the Partial Defence of Provocation, chaired by Mr Fred Nile, handed down its long-awaited report on 23 April. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation_Final%20report.pdf)

The Committee explicitly and unanimously recommended that the homosexual advance defence should be repealed. Recommendation 6 of their Report reads: “[t]hat the NSW Government introduce an amendment to section 23 of the Crimes Act 1900 to ensure that the partial defence [of provocation] is not available to defendants who… respond to a non-violent sexual advance by the victim.”

One month later, on May 22, Premier Barry O’Farrell confirmed that the NSW Government would indeed act to ensure that the partial defence of provocation, which if successful reduces a murder conviction to manslaughter, does not apply in circumstances where there is only a non-violent sexual advance. (http://www.news.com.au/national/breaking-news/provocation-laws-to-be-changed-in-nsw/story-e6frfku9-1226648578317)

In October, the Government tabled its response to the Committee. It accepted the policy intention of the Committee’s Report, and included an Exposure Draft Crimes Amendment (Provocation) Bill 2013 for public consultation. (http://www.parliament.nsw.gov.au/Prod/Parlment/committee.nsf/0/61173c421853420aca257b5500838b2e/$FILE/Partial%20defence%20of%20provocation%20-%20Govt%20response.pdf)

As part of that Exposure Draft Bill, which reframes the partial defence of provocation to a partial defence of extreme provocation, it is proposed that the new section 23 would include a clause providing that “[c]onduct of the deceased does not constitute extreme provocation if… the conduct was only a non-violent sexual advance to the accused.”

In short, if this Bill is introduced into and passed by the NSW Parliament then the stain of the homosexual advance (or ‘gay panic’) defence will finally be removed from the law books of NSW for good. And the signs continue to be encouraging – just this week, Premier O’Farrell told 2GB radio that it was the Government’s intention that the Bill will be “hopefully through the Parliament by the end of February” (audio starting at 6mins40seconds: http://www.2gb.com/audioplayer/25171#.Uqf1xyct2RM).

Which would be not a moment too soon. Because this is not some historical artefact, gathering dust somewhere, sitting neglected on a shelf. The homosexual advance defence has been used, and used regularly, over the last 20 years. When successful, it dishonours the victim of a brutal killing, implying that he was at least partly at fault, all for simply making a non-violent pass at someone else.

It is somewhat ironic that one of the most eloquent rebuttals of the homosexual advance defence comes from the very same case in which the High Court of Australia upheld its validity. In Green v The Queen [1997] HCA 50, then Justice Michael Kirby dissented, writing:

“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 sexual violence by people who take the law into their own hands.”

At the core of this partial defence lies unbridled homophobia, an irrational fear, and stereotyping, of gay men as “predators”, lurking and waiting for any opportunity to pounce on any unsuspecting “normal” heterosexual men. And it tells these “normal” men that they are entitled to use lethal force to repel any type of unwanted, non-violent sexual advance, that it is, at least in part, justified to somehow help defend their “honour”.

It is a law that has always been unjust. It seems that Members of the NSW Parliament have at last recognised that fact. To that I say, better late than never. But never forget the victims whose murderers have escaped the full convictions, and punishments, that they deserved, solely because the victim made a non-violent sexual advance to them.

Assuming that the Crimes Amendment (Provocation) Bill is passed early next year, I am sure that the actual repeal of the homosexual advance defence would feature highly on any list of the highs and lows of 2014. Til then, it is up to us to make one final push to ensure this abhorrent piece of law is finally abolished, once and for all.

Related posts:

My 2012 submission to the Select Committee Inquiry: https://alastairlawrie.net/2012/08/10/submission-on-homosexual-advance-defence/

My 2013 Submission on the Exposure Draft Crimes Amendment (Provocation) Bill 2013: https://alastairlawrie.net/2013/11/14/submission-on-crimes-amendment-provocation-bill-2013-re-homosexual-advance-or-gay-panic-defence/