Submission to Senate Inquiry into Treatment of Asylum Seekers on Nauru & Manus Island

UPDATE: 5 June 2016

 

The Senate Legal and Constitutional Affairs References Committee, chaired by Senator Glenn Lazarus, was unable to complete its inquiry into the treatment of people seeking asylum on Nauru and Manus Island before Malcolm Turnbull announced the election on 8 May.

 

However, they did release an Interim Report based on the submissions it had already received, which can be found here.

 

A range of disturbing matters are raised in this Report, including submissions to the effect that, in just a 13-month period (June 2014 to July 2015), the Department of Immigration and Border Protection recorded:

 

  • “134 incidents of actual self-harm, many amounting to attempted suicide and including some by children
  • 75 instances of the use of force against asylum seekers, by other asylum seekers and by [Regional Processing Centre] staff
  • 26 ‘major disturbances’ of various kinds, all serious in nature and posing risks to the safety of asylum seekers and staff
  • 34 instances of serious assault requiring medical treatment [and]
  • 16 serious accidents of injuries and 23 public health risks.”

 

I encourage you to read the short report to see at least a little of what is being done by our Government to people who deserve its protection, not abuse.

 

The Committee also recognised the particular issues confronting LGBTI people seeking asylum being detained, processed and resettled in Nauru and Papua New Guinea, including the following extended section on pages 12 and 13:

 

LGBTI asylum seekers

 

1.57 The committee received some evidence focused on the situation of lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the [Regional Processing Centres]. Mr Alastair Lawrie noted that male homosexual conduct remained a criminal offence in both Nauru and PNG, and expressed the view that ‘the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.’ Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual asylum seekers in the [Regional Processing Centres], and the lack of appropriate health and community services in the two countries. [Australian Lawyers for Human Rights] shared these concerns, citing Amnesty International’s reporting about gay refugees and resettlement in PNG.

 

1.58 The NSW Gay & Lesbian Rights Lobby highlighted that ‘LGBTI refugees are some of the most vulnerable individuals held in detention around the world’, and submitted that they were subject to ‘severe discrimination’ in the [Regional Processing Centres] and their host countries, as well as in refugee status determination processes.

 

1.59 Mr Lawrie argued that LGBTI asylum seekers (whether or not their claims for refugee status were based on their sexuality) should be housed and processed in Australia. The NSW Gay & Lesbian Rights Lobby agreed, and also offered a number of recommendations for specific training and education of relevant officials and service providers, as well as improved services, to better address the specific needs and vulnerabilities of LGBTI asylum-seekers.”

 

Given their inability to complete the inquiry, the Committee made only one recommendation: “The committee recommends that, should it be unable to complete its inquiry prior to the 2016 national election, the Senate should refer this matter for committee consideration, in similar terms as appropriate, in the 45th Parliament.”

 

However, even that recommendation, to essentially resume the Inquiry after the July 2 poll, was a bridge too far for Liberal and National Party Senators on the Committee who, disappointingly, “instead recommended[ed] that examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

 

As a result, it is unclear whether this issue will receive sufficient parliamentary scrutiny in the next term.

 

There is, nevertheless, one positive development that has occurred since the Committee handed down its Interim Report – on 27 May the Government of Nauru announced that it had decriminalised homosexuality.

 

In its media release “Nauru Government updates Criminal Code”, they announced passage of “the Crimes Act 2016 [which] replaces the hundred year old Nauruan Criminal Code 1899 which was drawn from the Queensland Criminal Code.”

 

In doing so, they confirmed the influence of international human rights advocacy:

 

“The Government of Nauru continues to show progressive leadership and in keeping with its legislative agenda, has passed a new number of laws including the decriminalising of homosexuality and suicide.

 

“In complying with its international obligations under various international treaties, The Nauru Parliament has had laws drafted to be consistent with appropriate international standards.”

 

Of course, the passage of this law, while welcome, will not necessarily do much to prevent ongoing reports of abuse as highlighted in the Committee’s Interim Report, but it is at least a small step forward, not just for LGBTI people seeking asylum being detained on Nauru, but for the LGBTI people of Nauru too.

 

ORIGINAL POST:

 

The Senate Legal and Constitutional Affairs Committee is currently conducting an Inquiry into the Conditions and Treatment of Asylum Seekers and Refugees at the Regional Processing Centres in the Republic of Nauru and Papua New Guinea. My submission to this inquiry has now been published by the Committee and is reproduced below.

More details about the Inquiry, and other submissions, can be found here.

 

Committee Secretary

Senate Legal and Constitutional Affairs Committee

PO Box 6100

Parliament House

Canberra ACT 2600

legcon.sen@aph.gov.au

Thursday 31 March 2016

 

To whom it may concern

 

Submission to Senate Inquiry into Conditions and Treatment of Asylum Seekers and Refugees in Nauru and PNG

 

Thank you for the opportunity to provide a submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Conditions and Treatment of Asylum Seekers and Refugees at the Regional Processing Centres in the Republic of Nauru and Papua New Guinea (‘the Inquiry’).

 

From the outset, I wish to express my opposition to the policies adopted by both the current Liberal-National Government, and the previous Labor Government, which detain (sometimes indefinitely), process and in some cases resettle people seeking asylum in Nauru and Papua New Guinea (PNG).

 

I believe that the actions of successive Australian Governments are in breach not just of international human rights law, but also fall far short of basic standards of human decency, denying the opportunity of a better life to people fleeing persecution in other countries.

 

However, while I oppose the overall detention, processing and resettlement of all people seeking asylum in Nauru and PNG, in this submission I will focus on one group of people for whom these policies cause particular problems: lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

 

It is my view that the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.

 

Before I address this issue in more detail, I would like to clarify that here I am not simply referring to people who claim asylum based on persecution because of their sexual orientation, gender identity or intersex status in other countries, but also include people who seek asylum on the basis of persecution of another attribute (such as race, religion or political views) and who are LGBTI. Both groups are negatively affected by the Australian Government’s current approach.

 

In this submission, examining the treatment of LGBTI people seeking asylum, I will primarily focus on two of the Inquiry’s six criteria:

a) conditions and treatment of asylum seekers and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea;

d) the extent to which the Australian-funded regional processing centres in the Republic of Nauru and Papua New Guinea are operating in compliance with Australian and international legal obligations.

 

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Sending LGBTI people seeking asylum to countries that criminalise homosexuality is itself a human rights abuse, and one that exposes those people to other forms of abuse and mistreatment

 

The Australian Government currently detains people seeking asylum in two countries outside of Australia: Nauru and PNG.

 

In both countries, male homosexuality remains criminalised. In both places, the maximum penalty is set at 14 years imprisonment. And in both, the origins of their current laws can be traced back to British, and subsequently Australian, imperial rule.

 

Nauru has two main criminal offences under its Criminal Code (which, I understand, are based on Queensland’s 1899 Criminal Code) that are relevant to this discussion:

 

“Section 208 Unnatural Offences

Any person who:

(1) Has carnal knowledge of any person against the order of nature; or

(2) Has carnal knowledge of an animal; or

(3) Permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a crime, and is liable to imprisonment with hard labour for fourteen years[i]” and

 

“Section 211 Indecent Practices between Males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.”

 

Despite comments in recent years by the Government of Nauru that suggested homosexuality could be decriminalise there, these offences remain in place today.

 

Papua New Guinea also has two main offences under its Criminal Code that are relevant (and the offences, and even the language used, again appear to be based on Queensland’s since repealed criminal provisions):

 

“Section 210. Unnatural Offences.

(1) A person who-

(a) sexually penetrates any person against the order of nature; or

(b) sexually penetrates an animal; or

(c) permits a male person to sexually penetrate him or her against the order of nature,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A person who attempts to commit and offences against Subsection (1) is guilty of a crime.

Penalty: imprisonment for a term not exceeding seven years” and

 

“Section 212. Indecent Practices Between Males.

(1) A male person who, whether in public or private-

(a) commits an act of gross indecency with another male person; or

(b) procures another male person to commit an act of gross indecency with him; or

(c) attempts to procure the commission of any such act by a male person with himself or with another male person,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

 

Unlike Nauru, there does not even appear to be any prospect of the PNG offences being repealed in the short or medium-term future.

 

Thus, prime facie, it appears that any members of the LGBTI community who engage in what could be described as male-male sexual activity – which would include gay men, bisexual men, some trans people (including because of mis-gendering by authorities) and some intersex people – would be committing criminal offences if they are sent to Nauru or PNG.

 

The criminalisation of male homosexuality in both PNG and Nauru stands in stark contrast with the situation in Australia, where all states and territories have decriminalised sexual activity between men (with Tasmania the last state to do so, in 1997).

 

If LGBTI people seeking asylum were instead allowed to have their claims processed on Australian soil, they would not need to fear being prosecuted simply because of who they are.

 

The legal situation in Australia is also relevant in establishing that the criminalisation of homosexual sexual activity in both Nauru and PNG is a contravention of international human rights law. It does so in two ways:

 

(i) The first United Nations Human Rights Committee (UNHRC) decision to find that laws criminalising male homosexuality were a violation of the ‘right to privacy’ in article 17 of the International Covenant on Civil and Political Rights (ICCPR)[ii] involved an Australian complainant. The case of Toonen v Australia[iii] – which considered a complaint against the ‘sodomy’ laws of Tasmania – was ground-breaking when it was handed down in early 1994, and remains relevant around the world today[iv] (as we shall see below).

 

(ii) The Australian Government, and Parliament, then confirmed that the international human right to privacy included consensual sexual activity between adults through the passage of the Human Rights (Sexual Conduct) Act 1994. Specifically, subsection 4(1) provided that: “[s]exual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.”

 

And yet, despite a 1994 decision of the UNHRC finding that the international human right to privacy should include the right to consensual sexual activity between adults, and despite this being confirmed as a right by the Australian Parliament more than 20 years ago, successive Australian Governments have effectively determined that this right should not apply to LGBTI people seeking asylum who seek protection from Australia.

 

Instead, successive Australian Governments have detained, processed and, in some case, resettled LGBTI people seeking asylum in countries that continue to criminalise male homosexual activity, exposing them to what I would argue are human rights violations under both Australian and international law.

 

There has previously been a suggestion that the criminal laws of Nauru and PNG, and especially those laws that prohibit homosexual sexual activity, might not apply to people seeking asylum who are being detained in either or both of those places.

 

However, I have raised this issue directly with respective Immigration Ministers under both the previous Labor and current Liberal-National Governments, and neither has explicitly ruled out the application of these criminal laws.

 

In September 2012, I asked then Immigration Minister the Hon Chris Bowen MP:

 

“Are you aware that homosexuality is currently illegal in all three countries [at the time, they also sought to send people seeking asylum to Malaysia] to which the Australian Government currently intends to send asylum seekers?” and

“Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian Government?”[v]

 

The response from the Department of Immigration and Citizenship, received in June 2013 (see Appendix A), refused to answer these questions – and therefore refused the opportunity to deny that the offences would indeed apply.

 

I wrote to the new Minister for Immigration the Hon Scott Morrison MP in February 2014, raising the same issues, this time specifically in relation to Manus Island, following the release of the Amnesty International Report This is Breaking People.[vi] In this letter, I included the following statement, something that I continue to firmly believe today:

 

“If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that section 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.”[vii]

 

The response to that letter, again from the Department rather than the Minister, and received in February 2014 (see Appendix B), did nothing to allay concerns that the criminal laws applied to LGBTI people seeking asylum held on Manus Island:

 

“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 prosecutions under those laws.

 

“If homosexual activity should occur in the OPC [Offshore Processing Centre], 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.”

 

There is a lot to absorb from those short paragraphs and indeed from the letter as a whole (and I will attempt to address these issues in turn).

 

However, one thing that does not appear anywhere in this correspondence is a denial that the criminal laws of PNG apply to LGBTI people seeking asylum and refugees on Manus Island, irrespective of whether they are awaiting assessment or have had their applications approved and are living in the community.

 

Thus, on the basis of both letters, it can safely be asserted that the laws that criminalise homosexuality in PNG, and Nauru, apply to LGBTI people seeking asylum detained in both places by the Australian Government.

 

Looking at the specific claims in the February 2014 letter in more detail, we must remember that it does not actually matter whether the criminal laws of either PNG or Nauru have been the subject of prosecution in recent years. As the United Nations Human Rights Committee decided in the 1994 Toonen case:

 

“The Committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code “interfere” with the author’s privacy, even if those provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future… The continued existence of the challenged provisions therefore continuously and directly “interferes” with the author’s privacy.”

 

In this light, the continued existence of the laws of Nauru and PNG criminalising male homosexuality is sufficient to constitute a human rights abuse of any person who is included by their scope, irrespective of whether the laws are actively being enforced or not.

 

The February 2014 letter actually highlights this potential abuse, even as it attempts to reject a claim made in the This is Breaking People report, namely that staff on Manus Island had a legal requirement to report homosexual activity to PNG police.

 

The letter itself only states that “there is no mandatory obligation under PNG domestic law”, not that such behaviour could not and would not ever be reported to the PNG Government or police – thus reinforcing the potential threat to LGBTI people seeking asylum.

 

The threat of criminal prosecution under PNG law has even been directly brought to the attention of people seeking asylum being detained on Manus Island. From The Guardian in September 2014[viii]:

 

Guardian Australia has obtained a copy of an orientation presentation shown to asylum seekers on Manus after they arrived on the island. It was prepared by the Salvation Army and shows a picture of two men kissing with a large red cross through it.

 

“The delivery notes attached to the presentation warn; “Homosexuality is illegal in Papua New Guinea. People have been imprisoned or killed for performing homosexual acts.”

 

A spokesman for the Salvation Army confirmed the slides were used in the presentation to asylum seekers and said they formed part of a “broader education program about life in PNG.””

 

160427 Refugee Submission No Kissing

The slide from the Salvation Army presentation that was shown to people seeking asylum after their arrival on Manus Island (source: Guardian Australia).

 

Given this context, and applying the precedent of Toonen decision above, it is undeniable that the treatment of LGBTI people seeking asylum by the Australian Government is in clear breach of international human rights law.

 

This breach also directly causes other serious harms to these people seeking asylum. This includes increased discrimination against, and ostracising of, LGBTI people by other people seeking asylum in these detention centres.

 

As has been highlighted by multiple reports, including Amnesty International’s This is Breaking People, work by Human Rights Watch[ix], and the previously quoted article in The Guardian, the threat of criminalisation means LGBTI people who have been the victim of mistreatment in the detention centres – whether by other people seeking asylum or even detention centre employees – are far less likely to bring such mistreatment to the attention of relevant authorities.

 

Distressingly, these reports include multiple allegations that gay and bisexual men seeking asylum have been subject to sexual assaults inside detention centres but, due to the threat of the criminal laws being imposed on them for their homosexuality, have chosen not to make official complaints about these assaults.

 

That seems like an inevitable outcome of the offshore detention centre system created by successive Australian Governments, and yet it is no less abhorrent for this inevitability.

 

This abhorrent situation is reflected in the quotes of gay asylum seekers in both The Guardian article and Human Rights Watch report. From Human Rights Watch:

 

“A gay asylum seeker said, “I have not come to stay in Manus, a country where it’s possible [for a gay man] to be jailed for 14 years. If I wanted to live like this I would have stayed in Iran and gone to prison, been released, and then sent to prison again.”

 

“Another said, “Everyone leaves me. No one considers me a friend. Those few men who do are only with me because they want to take advantage of me sexually. They become my friends and after they use me they leave. And make fun of me. It’s very hard here.””[x]

 

And from The Guardian article[xi]:

 

“Author Karim writes:

 

“In this camp I suffer a lot. For example about four month ago I had to protect myself from a vicious man who tried to rape me, I lodged a complaint against the man, but I’ve got no reply yet.

 

“Life in the camp became harder because after that incident everyone stopped talking to me, I am completely alone, they are bullying and humiliating me at all time.

 

“I asked the psychologists to help me, but I’ve been ignored.”

 

“[Another author] Ahmed continues:

 

“I have to hide my sexuality because in this country, like Iran, there are a lot of people – fanatics – whom if they find out anyone is gay they would harass them and maybe even try to kill them.

 

“I have to hide my personality once again. I have to lie as someone else.

 

“It feels like this is a disease that is consuming me for all these years and society will never leave me alone. It feels like the universe doesn’t want you to live in the serenity of one moment, I don’t know what I have done to the universe, or what it has against me.

 

“I can’t live one moment without anxiety stress and sadness, it doesn’t let me live happily with anyone who I love or feel love, I don’t know what is my crime that I have to be punished so harshly.”

 

And from Omid (also in The Guardian article):

 

“I couldn’t return to Iran and be executed by the Iranian government. Hence living in PNG was not any better, because being gay is considered a crime in PNG as well, and the punishment for such crime is 14 years imprisonment.

 

“I am so sorry that I was born gay. I never meant to hurt you, mum.

 

“I wish our boat had sunk in the ocean and stopped me living the most painful year of my life.

 

“I thought Australia and its people would be my protector, but they taught me otherwise.”

 

These are the tragic lessons that we, as a country, are teaching LGBTI people seeking asylum by detaining, processing and resettling them in countries that criminalise homosexuality.

 

Another direct and very real consequence of the threat of criminalisation is the associated failure to provide proper sexual health education and services to LGBTI people seeking asylum.

 

Leaving aside the claims that people seeking asylum on Manus Island have been denied access to condoms (which the February 2014 letter rejected, but which is difficult to verify in the absence of independent monitoring), it is highly questionable whether appropriate and inclusive sexual health education is provided to all people seeking asylum who are held, including lesbian, gay, bisexual, transgender and intersex people.

 

But it is beyond doubt that LGBTI people seeking asylum are forced to exercise extreme caution when attempting to access sexual health services given doing so may expose them to criminal sanction. Criminalisation in this context, as in many other areas, directly jeopardises public health outcomes, and specifically increases the risks of HIV transmission.

 

Indeed, as the United Nations Human Rights Committee wrote more than two decades ago in relation to Toonen:

 

“The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalisation of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Second, the Committee notes that no link has been shown between the continued criminalisation of homosexual activity and the effective control of the spread of the HIV/AIDS virus.”

 

Thus, in addition to breaching the human rights of LGBTI people seeking asylum under international and Australian law by detaining them in countries that criminalise homosexuality, the Australian Government is also increasing the risks of those same people seeking asylum contracting a virus that, while manageable with access to appropriate care and treatment, nevertheless still killed 1.5 million people worldwide in 2013 alone[xii].

 

Before concluding this submission, I would like to make two final observations.

 

First, the Committee will note that throughout I have referred to lesbian, gay, bisexual, transgender and intersex people seeking asylum. I have done so even while I acknowledge that for some members of this community – including lesbians, bisexual women and some transgender and some intersex people – the criminal laws against male homosexual activity in both Nauru and PNG will not technically apply.

 

Nevertheless, I believe that the unsafe situation created by these laws does apply to all LGBTI people seeking asylum who are detained there. By retaining laws against male homosexuality, both Governments effectively encourage discrimination across all of these population groups.

 

The consequence of this is that even for lesbians, bisexual women and those transgender and intersex people, they remain at increased risk of harassment and abuse (by both other people seeking asylum and detention centre employees), and sexual assault, as well as being denied access to appropriate and inclusive sexual health education and related services.

 

Second, I note that in both the June 2013 and February 2014 letters the Labor and Liberal-National Governments indicated that, were an LGBTI person seeking asylum to lodge an objection to being detained on either Nauru or PNG because of their laws against homosexuality, there is some possibility that they may not be sent to either place.

 

From the June 2013 letter:

 

“Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC [Regional Processing Centre] to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

 

“Where a person raises concerns against a designated RPC, the Departmental officer refers to relevant country information, as well as the assurances received by Australia from the RPC governments[xiii], to assess if those charges are credible. If the person makes credible claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.”

 

From the February 2014 letter:

 

“Any claims made against Nauru and PNG by an IMA [Illegal Maritime Arrival][xiv], 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 of exemption from transfer.”

 

While this process may appear to offer a small glimmer of hope to an even smaller number of LGBTI people seeking asylum, there are significant problems with any process that requires people to raise these concerns before being sent to either Nauru or Manus Island.

 

Imposing this requirement presupposes that the LGBTI person seeking asylum involved is aware that they are likely to be sent to one of these two countries, and that they also have knowledge of the criminal laws in both potentially applying to them.

 

It also requires them to be aware of the process involved in making such a claim (which is highly unlikely, especially in the absence of legal representation), and that they have the ability to raise it, with an appropriate Government representative, in the increasingly short period of time between detention by the Australian Government and transfer.

 

And it forces an LGBTI person seeking asylum to make this claim in an environment where they may be travelling with family members and friends (to whom they may not be ‘out’), or other members of their community that may not be accepting of different sexual orientations, gender identities or intersex people.

 

Finally, the June 2013 letter itself acknowledges that there may be some delay between a person seeking asylum protection from the Australian Government, and them making a claim on the basis of their LGBTI status. From that letter:

 

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applicants may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision-makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

 

Given this, it makes absolutely no sense to limit the ability of LGBTI people seeking asylum to make claims for protection against their detention on either Nauru or Manus Island, PNG to prior to their detention there – they should be able to make such a claim, and request transfer from these facilities (preferably to be processed in Australia), at any point.

 

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Overall, I believe that the actions of successive Australian Governments, in sending lesbian, gay, bisexual, transgender and intersex (LGBTI) people seeking asylum to Nauru and PNG, both countries that criminalise male homosexuality, is a fundamental breach of international human rights law.

 

This breach has flow-on consequences, by leading to increased harassment and abuse of LGBTI people seeking asylum, including by other people seeking asylum and by detention centre employees, and exposing them to sexual assault, as well as denying them access to appropriate and inclusive sexual health education and related services, increasing their risk of contracting HIV.

 

I submit that, instead of detaining, processing and resettling LGBTI people seeking asylum on Nauru and Manus Island, PNG, the Australian Government must instead ensure that the claims of these people are processed in Australia, where they are not criminalised and where they can be provided with access to appropriate support services.

 

Thank you for taking this submission into account as part of this Inquiry. If the Committee would like additional information about any of the above, or to clarify any part of this submission, please do not hesitate to contact me at the details provided.

 

Sincerely,

Alastair Lawrie

 

 

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Appendix A

Dear Mr Lawrie,

Thank you for your email of 7 September 2012 to the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, concerning the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers. Your letter has been referred to me for a reply. I apologise for the delay in responding.

The Australian Government’s commitment to removing discrimination was demonstrated by its reforms to remove discrimination from 85 Commonwealth laws. These reforms, which passed in 2009, removed discrimination and equalised treatment for same-sex couples in areas of taxation, social security, health, aged care, superannuation, immigration, child support and family law.

The Government is also proceeding with introducing long overdue protections against discrimination on the basis of sexual orientation, gender identity and intersex status. On 21 March 2013, the Attorney-General introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. This Bill will ensure that protections from discrimination for people who are gay, lesbian, bisexual, transgender and intersex are put in place as soon as practicable.

Concerning the transfer of post-13 August 2012 irregular maritime arrivals (IMAs) to Regional Processing Countries (RPC) and the treatment of LGBTI asylum seekers, as a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention), Australia takes its international obligations seriously and is committed to providing protection to refugees consistent with the obligations set out in the Refugees Convention and other human rights treaties to which Australia is a party. Any person has the right to seek protection in Australia from persecution in their home country.

The Government has signed Memoranda of Understanding (MoU) with the Governments of Nauru and Papua New Guinea which permit people who arrived irregularly by boat on or after 13 August 2012 to be taken to Nauru or Papua New Guinea (Manus Island) for assessment of their claims against the Refugee Convention. Changes to the Migration Act 1958 (the Act) which give effect to regional processing arrangements were passed by the Australian Parliament and became law on 18 August 2012.

The MoU signed with Nauru and Papua new Guinea reaffirms the commitment of both countries to the Refugee Convention, with people transferred to the Regional Processing Country (RPC) to be treated with dignity and respect in line with human rights standards.

The Department of Immigration and Citizenship recognises that human rights abuses and gender-related persecution can also be experienced by people on the basis of their sexual orientation and/or gender identity. As such, an applicant’s gender-related claims may include claims relating to their
sexual orientation and/or gender identity.

In the guidelines set out in the Departmental Procedures Advice Manual 3 (PAM3), for the guidance of interviewing officers, they are advised that

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applications may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

Where a person raises concerns against a designated RC, the Departmental officer refers to relevant country information, as well as the assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.

A copy of the Minister’s s198AE guidelines and the Pre-Transfer Assessment form and guidelines can be found at the Department’s website at: www.immi.gov.au/visas/humanitarian/whatsnew.htm

Also for your information, I attach a copy of the relevant sections of PAM3 regarding gender and sexual orientation. For a full interactive copy of that document you may need to contact your nearest public library which should be able to provide free access.

Thank you for writing about this matter and I apologise again for the delay in respond.

Yours sincerely

[Name withheld]

Director

Protection Policy Section

6 June 2013

 

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Appendix B

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

 

**********

 

Footnotes

[i] Attempt to commit unnatural offences is also an offence under section 209, with a maximum penalty of 7 years imprisonment.

[ii] Article 17: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

[iii] Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

[iv] From an article in New Matilda, celebrating the 20th anniversary of the Toonen decision (20 Years Since Toonen Changed the World, 11 April 2014): “Perhaps most dramatic of all has been the impact of the Tasmanian UN decision around the world. The Tasmanian decision was the first time the UN had recognised the equal rights of LGBTI people. When the Indian High Court overruled that country’s anti-gay laws in 2009 it was on the basis of the Tasmanian decision. When the UN Secretary-General Ban Ki Moon successfully urged the President of Malawi to release men gaoled for being gay, he cited the Tasmanian decision.In 2011 the UN Human Rights Commissioner, Navi Pillay, described the Tasmanian decision as a “watershed with wide-ranging implications for the human rights of millions of people.”

[v] Letter to Chris Bowen on LGBTI Asylum Seekers

[vi] A copy of the This is Breaking People report can be found here.

[vii] Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees sent to Manus Island, PNG

[viii] Guardian Australia, ‘Gay asylum seekers on Manus island write of fear of persecution in PNG’, September 24 2014.

[ix] Human Rights Watch, ‘Australia/Papua New Guinea: The Pacific Non-Solution’, July 15 2015.

[x] Ibid.

[xi] Op cit, Guardian Australia, September 24 2014.

[xii] World Health Organisation Global Health Observatory data.

[xiii] Based on the principles of the Toonen UNHRC decision, these assurances are irrelevant – the continued existence of laws criminalising male homosexuality should be sufficient to prevent the transfer of LGBTI people seeking asylum to these countries.

[xiv] This is the term used in the letter, not one that I would personally use or approve.

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/

Tanya Plibersek’s Principled Stand Threatens to Achieve Progress on Marriage Equality

This morning’s Sydney Morning Herald editorial (“Tanya Plibersek’s Misstep Threatens Progress on Samesex Marriage”), which attacks Deputy Opposition Leader Tanya Plibersek for calling for an ALP binding vote for marriage equality, is misguided and mistaken – about as misguided and mistaken as its pre-2013 Federal Election editorial (you know, the one where they advocated for the Australian people to vote to make Tony Abbott Prime Minister).

The editorial itself appears to be making two main arguments, both of which are wrong:

  1. That Ms Plibersek’s call for an ALP binding vote will prevent the Liberals from adopting a conscience vote. This is a complete misdirection of blame.

The editorial implies that what Labor does on this issue (ie whether it binds, or retains a conscience vote) will determine what the Liberals do. Except that we have already had three and a half years of an ALP conscience vote on marriage equality (during which legislation to introduce it was heavily defeated), and the Liberals have yet to even properly debate it.

The only people who are able to decide whether there is a Liberal Party conscience vote on this issue are Tony Abbott and the members of the Liberal party room; the last time I checked Ms Plibersek didn’t have a vote there. And, even if the ALP votes as a bloc, the last three and a half years clearly demonstrates there is nothing to prevent the Liberals from simultaneously granting their MPs a free vote.

If the Herald is so concerned about the lack of progress on a Liberal Party conscience vote on marriage equality, perhaps they should apportion responsibility for this where it belongs – to Tony Abbott and his Liberal Party colleagues, and no-one else.

  1. That Ms Plibersek’s call for an ALP binding vote is an imposition on the freedom of conscience of her Labor Party colleagues. Once again this completely misunderstands the issue.

What the Herald is really trying to say is that forcing ALP MPs and Senators to vote for marriage equality even where their personal religious beliefs do not support it is an unacceptable imposition on their freedom of religion.

Except that it is not. Nothing in any marriage equality legislation proposed to date would compel any religion to conduct same-sex weddings, or to recognise those marriages within their religion.

If those churches – and the parliamentarians, including some inside the Australian Labor Party, who are members of them – do not want to support marriage equality within their religion, they will be absolutely free to continue to do so.

All that marriage equality legislation would do is amend the secular law of this country to ensure that it does not discriminate on the basis of sexual orientation, gender identity or intersex status. It will allow those Australians for whom marriage is not a religious institution (and, with 72.5% of marriages conducted by a civil celebrant in 2013, that is an overwhelming majority of the country), including LGBTI Australians, to be able to choose whether to marry, or not, for themselves.

And, just as importantly, it would recognise the freedom of religion of those faiths and churches who wish to be able to marry LGBTI-inclusive couples, to do so too.

The alternative, to suggest that the personal religious beliefs of individual ALP MPs and Senators is a justification for them to withhold the right to marry from an entire class of people, from their fellow citizens, simply because of who they love, is not freedom of religion – it is the imposition of a particular religious view on the rest of country.

And that is what is unacceptable in this debate.

So, no, Sydney Morning Herald editor(s), Tanya Plibersek has not made a ‘misstep’ in calling for a binding vote for marriage equality, and she has definitely not derailed progress.

What Ms Plibersek has done is stand up for the principle that the secular law of this country should finally recognise the equality of our relationships, irrespective of who we are.

What Ms Plibersek has done is call for the Labor Party to support the human rights of all Australians, and to do so through collective action, because fundamental equality should not be optional, and because there is absolutely no reason why the ALP, which binds its parliamentarians on nearly all issues, should not bind on marriage equality too.

What Ms Plibersek has done is stand up for the values of me, and thousands of other lesbian, gay, bisexual, transgender and intersex (LGBTI), as well as progressive, members of the Labor Party, and the labour movement more broadly, who are pushing for this change to happen at National Conference in Melbourne in July.

And, contrary to the assertions in the editorial, that is not a failure to demonstrate leadership – instead, this is exactly what leadership looks like. It is a profound shame that the Sydney Morning Herald cannot recognise it.

(To read the full Sydney Morning Herald editorial, click here: http://www.smh.com.au/comment/smh-editorial/tanya-pliberseks-misstep-threatens-progress-on-samesex-marriage-20150428-1mut6z.html )

Deputy Opposition Leader, the Hon Tanya Plibersek MP, who is demonstrating leadership by calling for a binding vote for marriage equality inside the ALP.

Deputy Opposition Leader, the Hon Tanya Plibersek MP, who is demonstrating leadership by calling for a binding vote for marriage equality inside the ALP.

Submission to Rights & Responsibilities 2014 Consultation

The Human Rights Commissioner, Tim Wilson, is currently undertaking a public consultation called Rights & Responsibilities 2014. Unfortunately, similar to the ALRC Freedoms Inquiry, it is very much focused on ‘traditional’ rights at the expense of other rights like the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status. This post is my submission to this consultation process.

You can find out more about the inquiry, including downloading the Discussion Paper, at the following link: https://www.humanrights.gov.au/rights-responsibilities-2014 Written submissions, including an option to complete an online survey, are due by Friday 14 November 2014. Public consultations are also being held across the country, with a session in Sydney scheduled for Wednesday 19 November 2014 (details at the AHRC website).

Mr Tim Wilson

Human Rights Commissioner

Australian Human Rights Commission

c/- rights2014@humanrights.gov.au

Monday 27 October 2014

Dear Commissioner Wilson

SUBMISSION TO RIGHTS & RESPONSIBILITIES 2014 CONSULTATION

I welcome the opportunity to provide a submission to the Rights & Responsibilities 2014 public consultation, and in particular to provide feedback on the Discussion Paper, of the same name, published on the Australian Human Rights Commission (AHRC) website.

In this submission, I will provide feedback on two of the four rights, or related sets of rights, featured in Appendix A of the discussion paper (namely, the right to freedom of expression, and the right to freedom of thought, conscience and religious worship).

However, before doing so I would like to express my serious concern that the focus of the discussion paper is limited to some rights, which could be characterised as being more ‘traditional’ in nature (for example, the right to property), to the apparent exclusion of other rights which, I believe, are no less important in the contemporary world.

Specifically, I would argue that prioritising certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society. From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[1]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community.

For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights. Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia” (page 1 of the Discussion Paper) but which then only focuses on a small number of freedoms, including the right to property, and which neglects others.

In this way, the Rights & Responsibilities 2014 Discussion Paper appears to reinforce the message, already made clear by the Attorney-General, Senator the Hon George Brandis’ ‘Freedom Inquiry’ reference to the Australian Law Reform Commission (see http://www.alrc.gov.au/inquiries/freedoms/terms-reference for the terms of reference), that some freedoms are somehow better or more worthy of protection than others. Both inquiries appear to suggest that there is a hierarchy of rights, with ‘traditional’ rights at the top, and other rights, such as the right to non-discrimination, placed below them.

This is particularly concerning when some of those traditional rights being promoted or ‘privileged’ in these consultations, including the right to property and the right to ‘common law protection of personal reputation’ (aka defamation), are rights which are inherently more valuable to those who already enjoy ‘privilege’ within society, while other rights vital to protect the interests of people who are not ‘privileged’ are largely ignored.

Above all, I am concerned that you, in your role as Human Rights Commissioner, should actively participate in the reinforcement of this supposed hierarchy of rights, with the right to non-discrimination placed somewhere toward the bottom – especially as you are also the Commissioner at the AHRC with responsibility for sexual orientation, gender identity and intersex status issues.

I would ask that you reconsider your approach to these issues in the Rights & Responsibilities 2014 consultation process, and, instead of promoting a narrow view of what constitutes fundamental human rights, ensure that other rights, including the right to non-discrimination – or to be free from discrimination – are also given appropriate consideration.

I will now turn my attention to two of the four rights, or related sets of rights, featured in Appendix A of the Discussion Paper.

Right to freedom of expression (page 5 of the Discussion Paper)

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Discussion Paper’s statement that freedom of speech is not absolute, in particular where it notes that: “Under international law, freedom of expression may only be limited where it is prescribed by law and deemed necessary to protect the rights or reputations of others, national security, public order, or public health or morals. A mandatory limitation also applies to the right to freedom of expression in relation to ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.”[2]

In this context, I question why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status. The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification. Therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission earlier this year in response to the Attorney-General, Senator the Hon George Brandis’, Exposure Draft Bill seeking to repeal section 18C of the Racial Discrimination Act 1975, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984 (a copy of this submission can be found at the following link: https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/ ).

Thus, while I understand the focus of this section of the Discussion Paper is on ensuring that there exist only narrow restrictions on ‘freedom of expression’ (as summed up in the question “how individuals can be held accountable for the use of their freedom of expression outside of law” emphasis added), I submit there remains a proper, indeed necessary, role for legal restrictions on this freedom to protect against the “incitement to discrimination, hostility or violence”.

I further submit that these protections should cover lesbian, gay, bisexual, transgender and intersex Australians against such incitements. I sincerely hope that, in your capacity as both Human Rights Commissioner and AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree.

Right to freedom of thought, conscience and religious worship (page 6 of the Discussion Paper)

I also acknowledge the fundamental importance of the rights to freedom of thought, conscience and religious worship. I further agree with the Discussion Paper on page 6 where it states that “[t]he internal dimension of the right – the freedom to adopt or hold a belief – is absolute.”

However, just as importantly, I support the statement that “the external dimension – the freedom to manifest that belief in worship, observance, practice or teaching – may be limited by laws when deemed necessary to protect the public safety, order, health or morals, or the fundamental rights and freedoms of others” (emphasis added). This is a vital caveat that allows Governments to protect other individuals and groups against both potential and real harm.

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religious worship, and the harms caused by breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous, and essentially approve the prejudicial and discriminatory treatment of LGBT Australians by religious bodies in a large number of areas of public life[3].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984 (which provides that “[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibility of adherants of that religion”) and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate, with impunity, against both LGBT employees and potential employees, as well as LGBT individuals and families accessing these services; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[4]

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

It is even more difficult to envisage how these exemptions fit with the statements on page 2 of the Discussion Paper that “[r]ights and freedoms… are about being treated fairly, treating others fairly…” (emphasis added) and that “[l]imits on rights have been established to ensure individuals do not harm others when exercising their own rights.” Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I assert, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[5], if supplemented by exemptions covering how religious ceremonies are conducted, would be both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. Therefore, these are the only religious exemptions which should be retained.

This, much narrower, approach to religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others. In this respect, I question why the Discussion Paper does not live up to its title – examining both Rights AND Responsibilities – but instead focuses primarily on the expansion of some rights, including the right to freedom of religious worship, even at the possible expense of others, such as the right to non-discrimination.

For example, the conclusion of the section on “Right to freedom of thought, conscience and religious worship” notes that: “Rights & Responsibilities will focus on:

  • the ways you exercise your right to freedom of religion
  • where restrictions on freedom of religious worship exist
  • whether you have felt restricted or prohibited from exercising your right to freedom of religion
  • what could be done to enable you to exercise your right to freedom of religion.”

This focus presupposes that the only changes with respect to this area of law should be expansions to the ‘freedom of religion’, rather than allowing for the possibility that people claiming to exercise this freedom are in fact unjustifiably and inappropriately infringing upon the rights of others. The Discussion Paper does not seem to even contemplate the possibility that more protections may be needed to shield LGBT Australians from discrimination, perpetrated by religious organisations, but which at this stage is legitimated by exemptions to Commonwealth anti-discrimination law.

I submit that removing these wide-ranging, and overly-generous, religious exemptions is one of the most important, and effective, reforms the Government could make to improve the rights of any group of Australians. I sincerely hope that, as AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree that LGBT Australians should be free to live their lives without homophobia, biphobia, transphobia and intersexphobia. And to do so without exception. Thank you in advance for your consideration of this submission. Sincerely Alastair Lawrie

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

[1] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000. [2] International Covenant on Civil and Political Rights, Article 20(2). [3] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity. [4] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services. [5] “Nothing in Division 1 or 2 affects:

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

No 3 Senate Report on Involuntary or Coerced Sterilisation of Intersex People in Australia

Another development during 2013 which was, frankly, far more important than anything related to marriage equality was the Senate Standing Committee on Community Affairs’ Report on Involuntary or Coerced Sterilisation of Intersex People in Australia, handed down on 25 October (link here: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/~/media/Committees/Senate/committee/clac_ctte/involuntary_sterilisation/second_report/report.ashx).

For people unaware (as, being perfectly honest, I was until around this time last year), the vast majority of intersex children are subjected to involuntary surgeries shortly after birth, designed to ‘normalise’ them according to the expectations of either their parents, their doctors, or society at large (or, more likely, a combination of all three) that they should conform to a man/woman binary model of sex.

These surgeries, obviously performed without the infant/child’s consent, can involve sterilisation, as well as other ‘cosmetic’ (ie unnecessary), largely irreversible surgery on genitalia to make it fit within the idea of what a man or woman ‘should’ be (completely ignoring the fact that the infant doesn’t fit into that model, nor should that model be imposed upon them, and certainly not without their informed consent).

The fact that these surgeries continue to the present day is a major human rights scandal. The idea that people are having such major, lifelong decisions made for them by doctors and parents (who are often persuaded by the views of the medical profession) is a horrifying one.

It is something that groups like Organisation Intersex International Australia (OII Australia), and others have been campaigning on for some time. And in 2013 the members of the Senate Standing Committee on Community Affairs were listening.

They commenced an inquiry on September 20 2012, looking at the general topic of involuntary or coerced sterilisation of people with disabilities in Australia. Through the course of this inquiry, and the advocacy of groups like OII Australia, they came to see the significance of the continuing violation of the rights, including the bodily integrity, of young intersex people.

So much so, that they separated out the issues surrounding intersex people and, after handing down their general report on 17 July 2013, devoted a second report entirely to these issues. In their conclusion, they made some very encouraging observations about the need to break down the barriers of thinking around sex. In particular, they noted:

“ 6.29      Least well understood is the challenge that intersex variation presents to the rest of society. It is the challenge involved in recognising that genetic diversity is not a problem in itself; that we should not try to ‘normalise’ people who look different, if there is no medical necessity. It is the challenge of understanding that everyone does not have to fit into fixed binary models of sex and gender, and that nature certainly does not do so.

6.30      A key example of our lack of understanding of how to respond to intersex diversity can be seen in the clinical research on sex and gender of intersex people. The medical understanding of intersex is so strongly focussed on binary sex and gender that, even though its subjects have some sort of sex or gender ambiguity, the committee is unaware of any evidence to show that there are poor clinical or social outcomes from not assigning a sex to intersex infants.[19] Why? Because it appears never to have even been considered or researched. Enormous effort has gone into assigning and ‘normalising’ sex: none has gone into asking whether this is necessary or beneficial. Given the extremely complex and risky medical treatments that are sometimes involved, this appears extremely unfortunate. [emphasis added]”

 

Which is a pretty radical sentiment for a cross-party group of Senators to put their names to. The Committee also made recommendations designed to at least reduce the incidence of coerced sterilization (and surgery on genitalia), as well as increasing the support available to parents of intersex children. Specifically:

3.130    The committee recommends that all medical treatment of intersex people take place under guidelines that ensure treatment is managed by multidisciplinary teams within a human rights framework. The guidelines should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons. [emphasis added]

 

Recommendation 11

5.70    The committee recommends that the provision of information about intersex support groups to both parents/families and the patient be a mandatory part of the health care management of intersex cases.

Recommendation 12

5.72    The committee recommends that intersex support groups be core funded to provide support and information to patients, parents, families and health professionals in all intersex cases.”

These recommendations, and the Report more broadly, have been received positively by the National LGBTI Health Alliance, and by OII Australia, who released a statement responding to the report on 29 October (link here: http://oii.org.au/24058/statement-senate-report-involuntary-or-coerced-sterilisation-intersex-people/). OII President Morgan Carpenter said:

“This report represents the first opportunity, after many years of campaigning, to place our most serious human rights concerns before Parliament. Medical interventions on intersex infants, children and adolescents have been taking place in Australia with insufficient medical evidence, and insufficient emphasis placed on the human rights of the child and future adult. Genital surgeries and sterilisations create lifelong patients and there’s significant evidence of trauma.

At a first view, many of the headline conclusions and recommendations are positive – accepting our recommendations on minimising genital surgery, concern over the lack of adequate data, insufficient psychosocial support, and concern that decision making on cancer risk is insufficiently disentangled from wider concerns about a person’s intersex status itself; we also broadly welcome the recommendations relating to the prenatal use of Dexamethasone” and, went on to say:

 

“OII Australia warmly welcomes this crucial report. It addresses the main concerns of the intersex community. We welcome that this is a joint report with cross-party support, and we would like to thank the Committee members and staff for their hard work.

We also give particular thanks to our friends in the Androgen Insensitivity Syndrome Support Group Australia (AISSGA), the National LGBTI Health Alliance, and the other people and organisations who took time to make relevant submissions to the inquiry, or who participated in the hearing on intersex issues.

We look forward to working with clinicians, Commonwealth and State and Territory Health Departments, and the Commonwealth Attorney General’s Department, to improve health outcomes for intersex infants, children, adolescents and adults.”

Which is I guess the crucial point – it is up to multiple levels of Government, and the health profession, to implement the Committee’s recommendations, and make substantial (and long overdue) improvements in this area. And it is up to groups like OII Australia – together with support from their allies throughout the LGBTI, and wider, community – to make sure that they do.

Senate Submission on Marriage Equality

Earlier this year, I made a lengthy submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Marriage Equality Amendment Bill 2010. I – and 79,200 other Australians. The majority of these (approximately 46,400 submissions) were in favour of marriage equality, although we all know that our parliamentarians ultimately ignored them, and many other public policy arguments, as they voted to entrench discrimination against LGBTI Australians.

Unfortunately, given the volume of submissions received, the Committee chose to only publish 360 submissions in total, and mine was not one of the select few. As the year draws to a close I thought I might publish what I submitted to the Committee. On reflection, it does tend toward the ‘ranty’ at times, but I think this simply reflects the passion which I felt (and still feel) on the issue. Which also helps to explain the length. Fortunately, I will be able to reuse much of this submission as the NSW Parliament has its own inquiry into marriage equality in the first half of 2013.

Anyway, here is the full text of my submission:

Submission to the Senate Inquiry into Marriage Equality

Please note that this submission reflects my personal views only and does not reflect the views of any other person or organisation.

Introduction

I am writing to strongly support the urgent introduction of marriage equality, and to call for the federal parliament to remove one of the final major pieces of discrimination against lesbian, gay, bisexual, transgender and intersex Australians.

It is somewhat frustrating to have to go through this process in 2012. To have to, once again, ask for the rights which should be granted as a matter of course, to demand action to remove a form of discrimination which should have been erased from the law books long ago. Of course, this frustration has been shared in the past by campaigners for gender and racial equality, who were forced to continue to protest and take action to gain equality, long after it should have been introduced. But just because this frustration is shared, doesn’t mean it is any less disheartening.

And it is also disheartening to have to engage in the same debate, to have to listen to the same so-called arguments against marriage equality, which are generally based on either prejudice (on a bad day) or ignorance (on a good one). The arguments for equality, which include the recognition of love, the introduction of genuine equality irrespective of sexual orientation or gender identity, and the symbolism of acceptance, are so compelling that the debate on this issue has already been won, amongst the family and friends of LGBTI Australians, in the wider community, and in the public sphere. The majority of Australians have come to recognise that marriage equality is something that should have already happened.

In fact, the only place where support for marriage equality seems to be in the minority is in the federal parliament. Well, later this year, our 226 elected representatives have the opportunity to finally redress this injustice. Our federal parliamentarians have the chance to treat love equally, to show that all Australians should be treated fairly no matter who they are attracted to, in short, to bring Australia into the 21st century.

But it is more than simply a chance to do what is right, it is an obligation. Our 226 elected representatives have an obligation to represent all of their constituents, not just the heterosexual ones. They have a responsibility to respect the rights of a minority, even when other groups demand that the law be used as a weapon to discriminate against that minority. Our elected representatives should be striving to eliminate homophobia, in the same way that our society continues to strive to overcome sexism or racism.

I hope that, later this year, our federal parliamentarians will seize this historic opportunity, and fulfil their obligations, to support the passage of marriage equality.

The major arguments against same-sex marriage

To begin the substantive part of this submission, I would like to rebut the main arguments which our opponents use to deny marriage equality, namely, that marriage is about religion, that marriage is about children, and that marriage is about tradition. Each of these is fundamentally wrong, as I will explain:

i)                    Marriage is a religious institution which cannot accommodate same-sex couples

There are so many things wrong with this statement it is difficult to know where to start. It is completely inaccurate and inappropriate in contemporary Australia. There is no religious test for people who wish to get married – anyone is welcome (christian, muslim, jew, hindu, buddhist, atheist and agnostic alike). And it goes without saying that, despite historical restrictions on religious ‘intermarriage’, people can also marry outside their religious affiliation, so it therefore cannot be considered a sacrament to a particular god. Marriage ceremonies also do not need to be religious – indeed, the vast majority of ceremonies are performed civilly (65% in 2008). Above all, a marriage in modern Australia is more likely to be simply a celebration of the love between two people, shared by their family and friends, than a solemn vow in front of their god or gods.

More fundamentally, the federal Marriage Act, which defines marriage and from which its legal rights and obligations flow, is a secular law, passed by a secular parliament, within an entirely secular system of government. Or to put it another way, because of the separation of church and state, Australia is not legally or formally a christian country, and its laws are not the exclusive plaything of christians. This is the only fair approach in a modern society – surely it is unjust to impose religious laws on those who are not ‘believers’, or deny citizens equal rights on the basis of their religion, or their lack of religion.

The most extreme example of the ‘gay marriage should be banned because of religion argument’ is a convoluted one, which goes something like: for some people, marriage is religious, and they would not accept same-sex marriage, so the granting of same-sex marriages to others would somehow be an infringement of their religious freedom. This has absolutely no weight, confusing as it does the freedom of religion (for religious people to conduct a wedding in the manner of their choosing) with a supposed freedom to impose their religious views on others (and thereby infringing on the equally important freedom from religion).

It also conveniently ignores the fact that several religious organisations would themselves like the right to perform same-sex marriages, so a same-sex marriage ban would infringe on their freedom of religion. Finally, I believe that religious differences can easily be accommodated by the current exemptions within the Marriage Act, which mean that no religious celebrant can be compelled to officiate over any ceremony which they do not support. Nothing in any current proposal for marriage equality would compel a church to allow same-sex ceremonies where they do not wish.

All in all, there is absolutely no religious reason why marriage should remain exclusively between men and women.

ii)                   Marriage is about children and therefore gay men and lesbians need not apply

The regularly-raised Simpsons-esque ‘won’t somebody think of the children’ argument also has no substance whatsoever. Apparently, marriage is about children and only those opposite-sex couples who intend to have children, and indeed who are capable of having children, should get married. I say apparently, because it seems a lot of married couples didn’t get that memo. Think of the people who get married beyond their natural reproductive age. Or who get married and have absolutely no intention of having children. Or who get married and are incapable of having children.

It also seems to have escaped the marriage vows ‘industry’. I can’t recall anyone getting married and promising to have the other person’s children. Instead, marriage vows, quite understandably, seem to focus on the love between two people. In fact, the book of common prayer vows state “to be my lawful wedded wife/husband, to have and to hold from this day forward, for better or for worse, for richer or poorer, in sickness and in health, to love and to cherish, til death us do part, according to God’s holy ordinance; and thereto I plight thee my troth.” There is no mention of children, and after all, wouldn’t it be included here if bearing children were so central to the rite of marriage?

The next variation of ‘won’t somebody think of the children’, claims that the best way to raise children is within heterosexual married families, as only opposite sex couples can reproduce naturally and only marriage provides a stable family environment. Once again, this proposition is full of holes. It ignores the reality that many gay and lesbian couples are having children, whether through surrogacy, artificial insemination or adoption. These rainbow families are real, and they are increasing. They are also good parents – independent studies by reputable psychologists have found that children raised by rainbow families are doing fine. In 2007, the Australian Psychological Society found that “parenting practices and children’s outcomes in families parented by lesbian and gay parents are likely to be at least as favourable as those in families of heterosexual parents, despite the reality that considerable legal discrimination and inequity remain significant challenges for these families.” If people genuinely cared about the children of these families, surely we should be arguing for the right of their parents to get married, if they so desire.

The ‘straight married families are best’ argument is also incredibly disrespectful to the diverse range of families in contemporary Australia. There are many wonderful married opposite sex parents, just as there are awful married opposite sex ones. That split applies equally to unmarried opposite couples too. There are amazing single parents, just as there are terrible ones. There are couples who stay together for the sake of their children, but probably shouldn’t. And there are all kinds of families who do the best they can for their child or children, no matter what the situation. In short, family structure does not guarantee anything, but the love of a good parent or parents counts for so much more.

So, that leaves just one of the most commonly used troika of arguments against equal marriage to rebut.

iii)                 Marriage is about tradition and it should remain ‘just the way it is’

This is the weakest argument of the three. Tradition as an argument only works where it meets one necessary pre-condition: that the tradition involved is an inherently good one. This is because tradition alone is never enough to justify the retention of a fundamentally flawed institution. Australia, and indeed the western world, has done away with many social policies over time that were once deemed traditional: slavery was traditional, terra nullius was a long-held custom, and yet both have been quite rightly swept away because they were abhorrent.

To argue against changing something, solely because of tradition, to unquestioningly state that what is now, is what automatically should be, forever more, is quite plainly a ridiculous position to adopt.

Many of the features of modern Australia would not exist if our predecessors had blindly worshipped at the altar of tradition – women would not have the right to vote, let alone be Prime Minister, and indigenous Australians would still be third class citizens. Many of Australia’s major social reforms were achievements because they removed outdated and inappropriate social traditions, and not in spite of this.

In terms of marriage, it is a well-respected tradition within the community (at least in concept, if not reflected in divorce rates), and one that arguably can perform a valuable social function in terms of organising social relationships. However, one must be careful to distinguish between the feature that gives it value – that marriage is the union of two people in a loving relationship – and other traditions which are associated with it, but not a core element. That is why the essential meaning of marriage has survived, despite the significant changes that have been made to the institution over time. For example, marriage is now seen as the union of two equals, rather than simply a man taking possession of a woman. As we have seen, marriage has gone from most being performed religiously, to most being civil. Marriage between races was once prohibited, now miscegenation laws are (thankfully) a distant memory. The introduction of divorce laws, in the first instance, and then later of no-fault divorce, have both been welcome improvements to the operation of marriage, but have not fundamentally altered its underlying meaning.

That is why, although marriage itself may be traditional, and the exclusion of same-sex couples from marriage has a long history, support for the former does not mean hanging desperately onto the latter. The exclusion of lesbians and gay men from marriage is not an inherently good tradition, worthy of continuation, especially when we have finally reached a point as a society where we understand that all citizens should be treated equally, irrespective of sexual orientation or gender identity. At least a dozen other countries have shown that you can amend marriage laws, removing the homophobic exclusion of same-sex couples, and yet retain its core meaning (of recognising the love between two people). The tradition of marriage does not mean that it cannot or should not ever change. To the contrary, the tradition of social progress within Australia means that we must change the marriage law to be inclusive, to reflect the 21st century. That act will not weaken the institution of marriage, it will instead make it more relevant to a new generation of Australians.

Other arguments against same-sex marriage

There are a range of other arguments which are occasionally raised in ‘defending’ the institution of marriage from the homosexual invaders. They range from the ridiculous, to what are essentially distractions, to the downright homophobic, so I will only touch on them rather than delve into too much detail.

i)                    Same-sex marriage will devalue the marriages of opposite sex couples who are already married.

This argument goes something like: marriage has a particular meaning for some people, which appears to derive value from excluding same-sex couples, and so they will feel their relationship is lessened or cheapened if same-sex couples have access to it. It is hard to engage with people who hold this view. If your marriage relies on other people being discriminated against for it to survive, then you need to focus on your relationship more and what other people do less. After all, what will it matter if Sue and Sandra down the road get married? And where do you have room in your heart for the love of your spouse, when it is already full of intolerance for people who are different to you? Your marriage will not change if my fiancé and I get married. If you want to prefer to think of marriage as being between a man and a woman, then you are free to do so in the comfort of your own relationship. But don’t deny other people their rights because of your insecurity.

The apotheosis of this argument was recently put forward, in its most ridiculous form, by Frank Brennan. He stated that “[t]he Commonwealth Parliament should not legislate to change the paradigm of marriage unless and until the majority of persons living that paradigm seek a change.” This is a novel point of view. I would love to know whether this means women should have waited for the majority of men to eventually figure out that the sexes were equal before they demanded change, or for indigenous people to be satisfied with their second-class status while white folk decided whether they were good enough or not. All citizens have the right to hold an opinion about a law, and not just those people who currently have access to a particular institution. To say otherwise denies the democratic process, and the agency of people who are discriminated against to advocate for reform.

ii)                   There will be unintended, unspecified consequences of allowing equal marriage

This argument is always vague, because its proponents can never spell out what any of these consequences might be. Because they are scared of this particular change, they suspect that the sky might fall in. In practice, the only negative consequence of gay people getting married will be gay people eventually getting divorced – in just the same way as heterosexual couples already do. No one else would be affected.

iii)                 Other issues are more important that equal marriage

It is incredibly difficult to argue against this proposition because it is basically true. There are indeed many other more important issues in the world. But, this argument ignores the fact that as a society and as a parliament we are capable of concentrating on multiple issues at the same time. And it also underestimates how easy it would be to fix this particular problem – all it would take is one bill, amending the Marriage Act and instantly, equality achieved. It is difficult to say that about many other social issues (and, in a best case scenario, could be done by the middle of the year). It is incorrect to say same-sex marriage is a distraction if it is one so readily resolved.

iv)                 The slippery slope argument

This argument starts our descent into the territory of outright homophobia. It was the one raised recently by fundamentalist christians in the Great Hall of Parliament House, when they hysterically asserted that equal marriage for LGBTI citizens will lead to men marrying children or humans marrying animals (or even inanimate objects). Not only does it raise the utterly grotesque and offensive stereotype of ‘gay men as paedophile’ (when we know that most child sexual abuse happens within the heterosexual family unit), it also completely devalues the institution of marriage itself, as the union of two equals, based on love and consent. Those conditions cannot exist in the ridiculous examples listed. The people involved in making such arguments should be laughed at when they spout such nonsense.

v)                  Equal marriage will ‘promote’ homosexuality

This argument is often followed by ‘and will lead to homosexuality being taught in schools’. Again, this argument is fundamentally based on homophobia. Apparently, if we treat lesbians, gay men, bisexuals, transgender and intersex people as equal citizens, then this will result in other, ‘normal’ people catching one of these infectious letters of the alphabet, much like catching the flu. Leaving aside the fact that being any one of these things is a perfectly natural thing (in the same way that being heterosexual is natural), it also does not reflect the reality of my experience, or anyone else I know from the LGBTI community. Saying that being gay is normal, or teaching kids that society is incredibly diverse and includes people with different sexual orientations and genders, will not mean people ‘catch’ gay or transgender. But it might just mean that a kid who is questioning his or her sexuality or gender identity will find acceptance rather than bullying, and might ultimately be spared from becoming one of the sad statistics in our epidemic of sexuality-related youth suicide.

vi)                 Gay people are not equal and do not deserve equal rights

In one sense, the people who make this argument should be respected for at least being honest, and not trying to dress their homophobia up as defending religion, children or tradition. On the other hand, if you are alive in 2012 and genuinely believe that you deserve more rights than me because you are attracted to someone of the opposite sex and I am attracted to someone of the same sex, then I feel sorry for you – the modern world must be a truly scary place to live in when you hold those bigoted views. But guess what, it is only going to get worse for you from here on – society will keep on marching towards equality, and your views will look worse and worse as time goes by.

In summary, we have seen that there are no strong arguments against the recognition of equal marriage – in fact, there are no substantive arguments at all. And even more importantly, the introduction of equality will cause no harm whatsoever. The churches will not be harmed because they will be free to not celebrate same-sex weddings. It will not make any difference to couples who are already married, or opposite-sex couples who plan to get married (well, other than some more competition for wedding venues). It will not harm children to know that there are gay people in the world – indeed, it will help some as they themselves will be same-sex attracted and it may make their coming out much easier.

The only groups who claim they will be ‘harmed’ are bigots and homophobes, as if the granting of legal rights to others compromises their own rights. This is of course not true – they are free to continue to disagree with same-sex marriage, but they should not be free to impose their prejudice on others, nor abuse the legal system in order to do so.

Arguments in favour of same sex marriage

Of course, logically, the absence of a negative does not mean a positive. While there is no reason to oppose same-sex marriage, there needs to be a positive reason for the parliament to adopt a legislative change. From my perspective, there are four main reasons: love, equality, symbolism and health benefits.

i)                    Recognition of love

The main argument for the recognition of same-sex marriage is the same reason why we have marriage at all – to celebrate the love between two people. I have attended the weddings of my sister, of my brother, of other relatives and of friends. Each ceremony has been wonderful (well, with the exception of the mandatory ‘Ruddock clause’, where the current definition of opposite sex marriage is read out, presumably to rub in the noses of gays and lesbians in attendance – this offensive piece of hateful propaganda is unnecessary in a ceremony which is essentially about love). Each ceremony also involves the warm embrace of the couple, both literally and figuratively, by their family and friends.

The love between gay couples is no different to the love between opposite sex couples, and deserves to be recognised in exactly the same way. On a more personal level, I see no reason why the love which I share with my wonderful fiancé Steve, should not be celebrated by my family and friends too. Or why we cannot stand in front of our 100 nearest and dearest and say ‘I do’. In fact, I am conscious of the fact that my parents have already reached their mid-60s. If marriage equality is lost this year, then we may have lost the opportunity for reform for 10 or 15 years.

I would be absolutely devastated if either one of my parents were not able to be here to celebrate my legal marriage simply because some people within the federal parliament now are hard of heart and mean of spirit, and want to perpetuate the ongoing discrimination against same-sex couples within our marriage law. I know that Steve feels exactly the same way – he would be gutted if either of his parents, or his grandma, were not alive when we finally had the legal right to get married in our own country. I do not understand the mentality of any parliamentarian who believes they have the right to deny that to us.

ii)                   Equality

The second argument in favour of same-sex marriage is an even simpler one. That is, people should not be treated differently on the basis of sexual orientation or gender identity; straight, gay, lesbian, bisexual, intersex and transgender people all deserve the same human rights. We have reached the point in public debate when even most of the opponents of same-sex marriage (except the truly homophobic) concede that same-sex relationships deserve all the same ‘legal rights’ as opposite sex couples. They then go into complete logic meltdown when they try and justify why they actually mean ‘all the same legal rights – except marriage’ because there is no justification to restrict the fundamental principle of equality from applying to this right as well. If gay and straight are truly equal, then same-sex marriage is not only inevitable it is also essential.

iii)                 Symbolism

No-one should underestimate the strength of this argument. It is why the gay and lesbian community is arguing so passionately, and it is also why our homophobic opponents are so upset at the possibility. If as a society we say gay people can get married, then we are saying once and for all that ‘gay is okay’. Full stop. No exceptions. Our current level of acceptance of gay people is inherently qualified – you are okay but, you are equal except, you have most of the same rights, just not all. It has led to many LGBTI Australians, myself included, feeling permanently like second-class citizens. It is also one of the reasons why I believe the internet ‘It Gets Better’ project has been so powerful and so popular. Because our parliament refuses to tell young gay and lesbian people that they are full citizens, just as worthy as their straight counterparts, it has been up to private citizens to communicate that message to their younger counterparts. I can imagine a large and incredibly diverse range of the LGBTI community collectively shedding a tear when the federal parliament delivers equal marriage, a legislative equivalent of ‘It Gets Better’, to its citizens.

iv)                 Health benefits

I touched on this earlier, in responding to those who say same-sex marriage will promote homosexuality. I suspect they mean it will ‘convert’ people or make people ‘catch gay’ (which is patently ludicrous). But, if they mean it in the sense it will encourage people who are actually lesbian, gay, bisexual, transgender or intersex to accept themselves and live a happier life, then I say “Damn right!”

As most people would know, LGBTI youth are far more likely to suffer from depression, to attempt suicide or most tragically to take their own life. And as most people would know, many of these mental health problems stem from their lack of acceptance by friends, family and society at large. Being denied full equality is surely a part of this. As eloquently put by psychologist Paul Martin in the GetUp! ad on 19 November, “until we end institutionalised discrimination, same-sex attracted young people in particular will continue to suffer as a result of the message [of inequality] we are sending them”.

From personal experience, I know the pain of living in an environment which does not accept you. Growing up gay on a farm outside a small town in Queensland, with very conservative parents, and then attending a religious boarding school which made no secret of its disdain for homosexuals, I almost became one of the statistics – it is only through a combination of luck and strong will that I did not take my own life, where so many others have and sadly continue to do so. So I know that, while it would not change the world completely, introducing same-sex marriage would make things just that little bit brighter for young gays and lesbians around the country. And that can only be a positive thing.

You will note that I have excluded some of the other arguments which are commonly employed by some people. For example, I do not have a lot of time for the argument that introducing same-sex marriage will lead to an economic bonanza (that a pink wave of weddings will lead to a boom in related industries) because I think that this trivialises what is fundamentally a question of human rights.

I also do not include the growing acceptance of gay marriage, as evidenced through opinion polls, as a stand-alone justification for its introduction. I think the arguments for the introduction of same-sex marriage described above are so powerful, and the arguments against so weak, that it should be introduced irrespective of its level of community support, whether that be 20, 50 or even 80%. Human rights are human rights, and remain rights even if there is popular opposition to them.

So, we have seen that there are no substantive arguments against equal marriage, and strong arguments for its urgent introduction. Which means that the result should be straight-forward, shouldn’t it?

Civil unions are not the answer and would only be a distraction

I am growing concerned that, later this year, some parliamentarians may try and take the focus away from genuine marriage equality, and instead aim for ‘civil unions’. This worry derives from the fact that civil unions are a red herring which can easily distract otherwise sensible people from the goal of full equality. Superficially, the argument that some people have concerns about the term marriage, so why don’t we give same-sex relationships the same legal rights but call it something else (ie civil unions), is attractive. Everyone wins, right?

Wrong. Civil unions are a compromise that would satisfy no-one. Setting up an entirely new system of relationship recognition for LGBTI Australians would not end discrimination, instead it would perpetuate and entrench it. If we are trying to overcome the treatment of people as second-class citizens we would not give them a second-class relationship category. The principle of ‘separate but equal’ has been comprehensively debunked from Brown v Board of Education of Topeka 1954 onwards. Separate but equal can never be equal.

Civil unions would also only ever be a half-way house. Even in countries which have introduced civil unions as an attempted compromise, the movement for full marriage equality continues – and will likely ultimately succeed. Therefore, the introduction of civil unions here should not be countenanced, whether by people who see it is a useful stepping stone or others who see it as a useful tool to suppress or delay equality. I cannot put it any more bluntly than this – in 2012 nothing short of full equality will do. Other groups do not accept separate but equal status, and lesbian, gay, bisexual, transgender and intersex Australians will not accept second-class status either.

Conclusion

So, as has become clear through-out this submission, there are no strong public policy arguments against equal marriage, and several strong arguments in favour. No-one would be harmed by its introduction, and there are no other valid options except for full equality. So now is the time for our 226 elected representatives to live up to their collective responsibility and just get it done already.

One of the best aspects of this issue is just how easy it is to redress. It would take just one Act of parliament to achieve. There would be no cost involved to the government, and none to the citizen – with the exception of those couples who could then chose to enter into a marriage (a choice which should be theirs alone and not the choice of their parliamentarians to make on their behalf). There are very few times when parliament can do such a purely positive thing, to immeasurably increase the human happiness of their constituents, without any negative or cost. I implore you to take advantage of this opportunity now and not let it wait another 10 or 15 years.

I ask you that, because, on a personal level, I am engaged to a wonderful man and would dearly love to be able to get married in my own country, and to have as many of my family and friends to be there as possible. I met my fiancé Steve 2 weeks after my 30th birthday. I had begun to doubt that I might ever meet the one, and then suddenly there he was, right in front of me. He is the most wonderful partner I could ever imagine, and I love him with all my heart. We have been together for almost four amazing years, through thick and thin, and I hope that other couples, same-sex and opposite sex, have relationships as good as ours.

Steve and I got engaged over two years ago. At some point in the next year or two, we will have our wedding. Obviously, we are both looking forward to the celebration that entails. We have delayed naming the date in the hope that we might be able to do so in Australia, depending on what happens in federal parliament later this year. If marriage equality is passed, then we will be able to have around 100 of our nearest and dearest present with us for our special day.

But, in the event the legislation fails, then we do not see any way that it will be passed in the next five years (at least – and more likely 10). We would obviously not wait for the next Bill, and be engaged for potentially close to a decade, if not longer, but would be forced instead to go overseas and get married in a different country. While some people may think that this is romantic or an adventure, I think that it is profoundly disappointing.

It would mean that many of our friends, and at least some of our family members, will not be able to be there with us (whether that be because they have small children, it costs too much, they cannot take time off work, it is too far etc). Because Steve and I are a ‘normal’ engaged couple – in the sense that we both plan on only having one wedding in our lifetimes – this means that parliamentarians who vote no on marriage equality this year are effectively taking those people away from our ceremony, limiting the amount of people who can be there for our wedding day. I am acutely aware that those lost memories will never, ever be given back.

I hope that this is something which parliamentarians who are considering voting no think about before they cast their vote later this year. In fact, I would welcome the opportunity to be able to discuss the issue of marriage equality, face to face, because I am confident in the power of the arguments for, and in the weakness of the arguments against. However, given I will likely not be able to speak directly with those parliamentarians before the Bill, I would like to conclude my submission with a personal message, and a series of questions, just to them.

A message to the parliamentarians considering voting against marriage equality

To those MPs and Senators who are considering voting against legislation which would introduce marriage equality, I would like to make the following points:

  • Of all the bills which you will vote on in your entire parliamentary career, there will always be a group of people in the community who will judge you according to this particular vote, and whether you stood up for equality and love, or for discrimination and prejudice.
  • If you do not appreciate the characterisation of the issue in that way, then I am sorry, but you are going to have to get used to it. This vote is that simple – either you vote for equality or against, either you believe that lesbian, gay, bisexual, transgender and intersex Australians are first-class citizens, or you think they are inherently second-class.
  • Further, if you vote no on marriage equality, then please do not ever again say that you stand up for lesbian, gay, bisexual, transgender and intersex Australians, or believe that they deserve equal rights. If you do so, we will rightly point out your hypocrisy.
  • Down the track, if your views change and you come to regret your vote, then please do not say that you did not understand what you were doing at the time – the arguments have all been made, and you must be aware by now of the consequences of your actions.

And finally, I would like to leave you with the following questions to contemplate before you vote no:

  1. Have you told all of your gay and lesbian colleagues, staff, friends and family members that you think they are second-class citizens and deserve less legal rights than you?
  2. Have you considered how you are likely to reflect upon this vote in 20 years’ time – will you be proud of your actions in parliament, or will you try and disown them?
  3. Are you comfortable being remembered as someone who stood against the tide of progress, in the same way that we now consider someone who supported apartheid, or who supports discrimination against women or indigenous people?
  4. Will party allegiance or political considerations be enough to make you feel better for having voted against the human rights of your fellow citizens?
  5. Given we all know that marriage equality will eventually be achieved, at some point in the next two decades, what will voting against it this year actually achieve, other than simply delaying the inevitable?
  6. What would you say to an elderly lesbian, whose partner dies between now and when equal marriage is ultimately legalised, but who was never able to legally marry the person they love, at least in part because of your actions?
  7. How would you explain your vote to a mother or father, who simply wants to celebrate their gay son’s wedding, in exactly the same way they have celebrated the wedding of their heterosexual son and/or daughter?
  8. What message do you want to send to a same-sex attracted youth , growing up in a country town and having trouble accepting their sexuality in a society which does not value them as much as their straight peers?
  9. How will you feel, waking up the day after the vote, knowing that your actions have helped to break gay and lesbian hearts rights across the country?
  10. Finally, and most importantly, if you had a gay child or grandchild (or your best friend had a gay child or grandchild) could you honestly explain to them why you thought you were better than them, and that you deserved to have a legal right that they did not, just because you were straight and they were not?

New Zealand Marriage Equality Submission

The following is my submission to the New Zealand Parliamentary Inquiry into their marriage equality legislation. I think that it is a fantastic initiative of their parliament to allow submissions from Australia, and I hope that they pass equality later this year or early next year, even if it casts an even larger shadow over the performance of our parliamentarians on this issue.

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First, as a citizen of Australia I would like to thank the Parliament of New Zealand for allowing people from across the Tasman to make a submission to your inquiry on the Marriage (Definition of Marriage) Amendment Bill 2012.

This is an important inquiry on legislation which has the ability to affect a wide range of people, not just in New Zealand, but also from other countries in the region.

I am one of those people who could potentially be affected. I am a 34 year old gay man living in Sydney with my partner of more than four years, Steven. We have been engaged to be married for almost three of those four years (I proposed to him at the beginning of 2010, and to my eternal happiness he said yes).

However, as you would be aware, the Parliament of Australia voted in 2004 to ban same-sex and gender diverse marriages, and extended this ban to apply to couples wishing to get married in other countries (by deciding not to issue certificates of no impediment to same-sex and gender diverse couples).

Even worse, as I am sure you are also aware, the Australian Parliament recently voted to reconfirm its opposition to marriage equality, and did so by a large margin (98 to 42 in the House of Representatives), meaning that marriage equality is unlikely to be recognised within Australia (at least at the federal level) for the foreseeable future.

Nevertheless, there was a brighter moment early in 2012 when the Australian Attorney-General, the Hon Nicola Roxon MP, overturned the previous ban on the issuing of certificates of no impediment. This means that, despite being denied the right to marry in our own country, there is now no legal obstacle to our getting married in those countries where it is legal.

But there are other obstacles. While we can choose to get married in a range of countries, they are all some distance from Australia. This means that any option to get married for Steven and I would be expensive. Much more importantly, it means that any option to get married overseas would likely to be too far and too expensive for most of our family members and friends to come along with us and be there for our special day. And we both have elderly grandmothers for whom travelling to Europe, North America, South America or South Africa would be out of the question.

For Steven and I, and countless other couples like us in Australia, this is a heartbreaking decision. We can either legally get married in another country, but do so in the absence of the special people in our lives, or choose to wait many years before we can get married in our own country, and risk people like our grandmothers no longer being with us.

The legislation which is currently being considered by your Parliament might provide an opportunity for couples like us to be able to travel to our neighbour, and get married with many more of the special people in our lives being able to join us. I believe that many couples would make the same decision that we would – if marriage equality were to be legalised in New Zealand, and available to citizens of Australia, we would seek to get married in your country.

Some people might try to make an economic or financial argument based on this fact (ie that same-sex and gender diverse marriages from across the Tasman would provide a windfall to New Zealand). I do not support this proposition because fundamental human rights should never be determined by whether a nation benefits from it financially.

However, I do make the argument that, by legislating for marriage equality, and allowing same-sex and gender diverse couples within New Zealand, and from around the region including Australia, to get married, you would be substantially increasing human happiness. There are few moments where politicians have the opportunity to do that so decisively – by voting yes, you would not just bring happiness to the couples getting married but also to the family members and friends who finally get to celebrate that fact.

This submission may seem somewhat self-interested – after all I am putting forward my case as to why I should be able to access a legal right in your country. But it is also selfless in the same way that true love can be. Because I don’t just want to get married for my own benefit – I want to marry my fiancé Steven because I know that it would make him happy, and that our wedding would also bring happiness to countless others.

That makes me no different to any heterosexual person who wishes to get married, and no different to the same-sex and gender diverse couples within New Zealand who also wish to have a legally recognised wedding.

Obviously, your primary duty as elected representatives of New Zealand is to represent them. And I am sure that LGBTI New Zealanders are making the necessary arguments to you based on love, equality, acceptance and respect which all support the introduction of a definition of marriage that does not discriminate on the basis of sexual orientation or sex and gender identity.

If you accept those arguments and vote yes, you will no doubt bring happiness and joy to same-sex and gender diverse couples within New Zealand who wish to get married, and to all LGBTI New Zealanders for being recognised as full citizens.

What this submission has tried to make clear is that the positive outcome of a yes vote is not restricted to New Zealand and its citizens – the benefits of supporting this legislation could extend to couples from other countries, including Australia like Steven and me, who may also be able to get married as a result.

And who knows, just like with giving women the right to vote in 1893, a first move by New Zealand on this legislation might be enough to convince Australia’s own parliamentarians to finally vote for marriage equality.

Update: New Zealand passed marriage equality in April 2013, with weddings set to commence from August. What a wonderful achievement from our cousins across the Tasman, and what an indictment on Australia’s politicians that we do not appear even close to passing similar legislation here. Anyway, possibly the best moment of the NZ marriage equality debate happened immediately after the Bills were passed, with the Gallery breaking out into a traditional Maori love song. Simply beautiful:

http://www.youtube.com/watch?v=ilMBLV3A6ug