Australia’s (Mis)Treatment of LGBTI Refugees

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

 

Of all the issues that involve human rights violations against lesbian, gay, bisexual, transgender and intersex people in Australia there are two that particularly stand out (at least in my view).

 

One – ongoing coercive medical treatments and surgeries on children born with intersex variations – I have written about previously.

 

The other is the deliberate mistreatment of LGBTI refugees and people seeking asylum by the Australian Government.

 

Of course, this abuse is only one small part of Australia’s broader shameful approach to refugee issues, but, as we shall see below, it does raise specific issues around where people are processed and how claims are assessed.

 

The following are three key areas where the Australian Government’s approach to LGBTI refugees and people seeking asylum should urgently be improved, as well as one suggestion for further consideration.

 

  1. End the detention, processing and settlement of LGBTI refugees in countries that criminalise homosexuality

 

To begin, I should reiterate my personal opposition to Australia’s overall ‘offshore processing’ policy, which essentially involves the indefinite detention of refugees in prisons in the South Pacific. There is no justification for this approach.

 

There can also be no possible justification for the detention, processing and settlement of LGBTI refugees and people seeking asylum in countries that criminalise homosexuality. And yet that is exactly what Australia has done for the past seven years.

 

This includes Nauru, where homosexuality remained criminalised until May 2016,[i] and Manus Island in Papua New Guinea, a country where the maximum penalty for male same-sex intercourse is still 14 years imprisonment.

 

There is no exception for people held in Australia’s immigration detention facilities in these countries either. This is demonstrated by the following report from Behrouz Boochani in The Guardian:

 

It was five years ago in Fox prison camp. A group of immigration officers accompanied by a number of interpreters burst in. All of a sudden, one of the officers stood on a chair precisely like a king’s representative in ancient times, like one of those men reading the king’s announcement for convicts. The officer took a piece of paper, and surrounded by dozens of refugees he started to read. The announcement was serious, decisive, to the point and threatening, like his voice. “Homosexuality is illegal in Papua New Guiana [sic] and considered as a crime. If anyone in the immigration detention engages in this behaviour, he will be sentenced to 14 years in prison.” It was a dire warning from the prison’s officials and directly targeted homosexual prisoners.

 

The article then details the horrendous impact of these laws on Alex* (pseudonym), a gay Iranian refugee imprisoned on Manus Island, who was gradually but inevitably broken by the homophobic environment there, through intimidation, harassment, abuse and even rape. His experiences ultimately led him to risk his life again by returning to Iran, before seeking asylum elsewhere – and served as a cautionary tale to other queer men on the island. As Boochani concluded:

 

No one knows how many gay, transgender or bisexual refugees live on Manus, but what is clear is that the suffering they experienced in their countries has been repeated on Manus in a disastrous way. Fear, humiliation, threat, banishment, rape – these are all concepts and experiences lived daily by these men. Gay, transgender and bisexual men here have experienced even greater torment than other refugees. [emphasis added]

 

Successive Australian Governments have been fully aware of these abuses. I know, because I have written about this issue to multiple Immigration Ministers,[ii] including then Minister – now Prime Minister – Scott Morrison in 2014. His Department’s response failed to even guarantee that LGBTI asylum seekers would not be reported to PNG police for same-sex sexual activity.

 

Given his ‘tough on border security’ rhetoric, there appears little hope that a re-elected Morrison Liberal-National Government would take any action to address these human rights violations.

 

On the other hand, there is some chance that a Shorten Labor Government might finally take a different approach. This is at least in part due to a commitment in the 2018 Australian Labor Party National Platform that:

 

Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.[iii]

 

Consequently, there is a possibility the situation may change, along with the Government, on Saturday 18 May – although that will only happen if LGBTI and refugee advocates maintain pressure on Labor to fulfil this commitment.

 

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).

 

  1. Improve the assessment process for LGBTI claims for asylum

 

This is another major problem confronting lesbian, gay, bisexual, transgender and intersex refugees and people seeking asylum in Australia, one that has existed for many years, even decades.

 

Practically, the decision-makers of the Refugee and Migration Division of the Administrative Appeals Tribunal (known until 2015 as the Refugee Review Tribunal) have struggled to appropriately consider the diversity of sexual orientations and gender identities from other countries, leading to a very low rate of success in receiving refugee protection (a 2003 study by Professor Jenni Millbank showed that at most only 20% of claims were approved).

 

As reported in the Sydney Morning Herald:

 

Tribunal officials have long been accused of judging applicants based on a slew of Western gay stereotypes, such as effeminate manner or dress. In one notorious case, an applicant was deemed not gay after failing questions about Madonna, Better Midler, Oscar Wilde and Greco-Roman wrestling. The man barely spoke English and was mystified by the topics. “I don’t understand it,” he said to his interviewer. “I’m sorry.”

 

When in 2004 his case came before the High Court on appeal (after the Federal Court had first ruled against the applicant), the justices were staggered by the line of questioning used by the Tribunal, describing it as very odd, and almost bordering on the bizarre. “Madonna, Better Midler and so on are phenomena of Western culture,” declared Justice Michael Kirby at the time. “In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind. Survival is.”

 

Unfortunately, more recent cases do not indicate that this inherent Western-gay bias has been overcome. The SMH further reported that:

 

Last year [2016], a man from Bangladesh was rejected in part because he was unable to correctly pronounce or spell the name of a Sydney gay club he’d visited called the Stonewall, according to Tribunal documents – which incorrectly referred to the nightclub as a “day venue”. In a similar 2014 case, an asylum seeker was told he wasn’t gay because, although he described having two monogamous relationships, he hadn’t “explored his homosexuality” by going to Sydney’s gay bars, and had little knowledge of Oxford Street.

 

There are additional reports of Tribunal members asking inappropriately sexual questions, as well as applicants being encouraged to supply video of themselves engaging in sexual activity in an attempt to ‘prove’ their homosexuality to the Tribunal. This occurs because, as the SMH notes, “there are no guidelines for dealing with LGBTQI applicants.”

 

This situation must change, as a matter of priority. Unfortunately, there is no indication that a re-elected Morrison Liberal-National Government will take action to address these problems.

 

Once again, however, these is some reason to be optimistic about a Shorten Labor Government, which includes these commitments in its Platform:

 

The assessment and review of protection claims of specific lesbian, gay, bisexual, transgender, intersex and queer asylum seekers will be underpinned by appropriate and relevant assessment tools and processes that reflect cultural experiences of the lesbian, gay, bisexual, transgender, intersex and queer community.

In assessing asylum claims where the fear of persecution arises from a person’s lesbian, gay, bisexual, transgender, intersex and queer status, the fact that the country the person is fleeing has criminal penalties for engaging in homosexual sex is sufficient of itself to establish that fear of persecution is well-founded, and any assessment of the asylum seeker’s identity and fear must take account of the very different manifestations of lesbian, gay, bisexual, transgender, intersex and queer identity that other cultures, especially ones profoundly hostile to lesbian, gay, bisexual, transgender, intersex and queer people, necessarily engender.

 

Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.

 

As with ending detention of LGBTI refugees in countries criminalising homosexuality however, the challenge will be in ensuring that a new Government follows through on its promises.

 

  1. Increase support for LGBTI refugees and people seeking asylum in Australia

 

Another area where urgent reform is needed is the level of support provided to lesbian, gay, bisexual, transgender and intersex refugees within Australia.

 

The few dedicated support services that exist receive minimal funding, and consequently are unable to meet the significant needs of this vulnerable population.

 

Particular challenges include the fact that LGBTI refugees and people seeking asylum may not be comfortable in disclosing their sexual orientation, gender identity or sex characteristics to services based on their ethnicity or background, but at the same time may not be welcomed by or receive adequate support from LGBTI services.

 

As noted in a 2018 Star Observer article on this topic:

 

LGBTI asylum seekers can also find themselves caught between lack of acceptance from diaspora communities and lack of understanding from mainstream LGBTI communities.

 

First and foremost, these gaps should be addressed by providing direct Government funding for peer-led LGBTI refugee services. However, this alone may not be sufficient to ensure LGBTI refugees and people seeking asylum are able to access the full breadth of services they may require.

 

Therefore, there should also be funding to support education and training programs for ethnic community organisations to assist them to be welcoming environments for LGBTI refugees (as well as inclusiveness training for interpreters, who have a key role to play not just in supporting LGBTI people seeking asylum to access services, but also in their claims for protection).

 

There is also a need for LGBTI community organisations to provide greater social support and outreach to LGBTI refugees and people seeking asylum in Australia. This would help to establish connections between LGBTI refugees and the wider LGBTI community, and may result in better social outcomes over the medium- to long-term.

 

**********

 

While the above three issues are presented as concrete recommendations for change, the following suggestion is raised to prompt further discussion:

 

  1. Introduce quotas or targets for the intake of LGBTI refugees

 

I should preface this discussion by saying that, philosophically, I don’t support the introduction of quotas or targets within Australia’s overall refugee program based on demographic criteria. Instead, Australia should accept refugees based on the assessment of need by the UN Refugee Agency (the UNHCR).

 

However, that is not how the Australian refugee framework currently operates.

 

Since 2015, the Australian Government has adopted a policy of prioritising Christian refugees from the Middle East (which itself is/was a part of the special quota for refugees fleeing the conflict in Syria and Iraq, operating in addition to Australia’s regular refugee intake).

 

I agree with many of the criticisms of this approach made in this New York Times column, Australia’s immoral preference for Christian refugees, although these criticisms do not appear to have influenced Australia’s ongoing pro-Christian bias.

 

Indeed, it seems the Morrison Liberal-National Government wants to introduce even greater demographic criteria within the refugee program.

 

During the election campaign, it has announced ‘the proposed makeup of the humanitarian program for the first time. This will include an overall target of 60% of the offshore component allocated to women. Women made up 50.8% in 2017-18.’[iv] [emphasis added]

 

In this context, the obvious question is: if Christians and women receive allocated quotas (or targets), then why not lesbian, gay, bisexual, transgender and intersex refugees?

 

Indeed, there are strong arguments in favour of this approach.

 

Based on analysis of 2018 UNHCR figures, and the 2019 ILGA State-Sponsored Homophobia Report, of the five top refugee-hosting countries, four retain criminal sanctions for homosexuality:

 

Country

Number of refugees Criminal penalties for homosexuality
Turkey 3.5 million Not criminalised
Uganda 1.4 million Life imprisonment
Pakistan 1.4 million 10 years
Lebanon 1 million 1 year
Iran 979,400

Death penalty

 

A significant number of LGBTI refugees are therefore unsafe and at risk even after they have fled persecution elsewhere.

 

There are also a number of countries in our own Oceania region that criminalise homosexuality, including PNG, Kiribati, Solomon Islands, Tuvalu and Cook Islands (all of which have a maximum penalty of 14 years imprisonment), Tonga (10 years imprisonment) and Samoa (5 years imprisonment). And that’s not mentioning the recent attempt by the Government of Brunei to introduce the death penalty (which they have backed down from – for now – but retain a punishment of imprisonment up to 10 years).

 

As stated earlier, my personal preference is that there are no demographic criteria for determining the intake of refugees. But, if Australia’s current approach, which gives priority to Christians and women, does continue, I can see no good reason why there should not also be quotas or targets for the intake of refugees who are lesbian, gay, bisexual, transgender and intersex.

 

**********

 

Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.

 

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

 

Footnotes:

[i] Of course, just because homosexuality has been decriminalized in Nauru doesn’t necessarily mean it is now a welcoming environment for LGBTI refugees and people seeking asylum. This is confirmed by the following accounts, including:

In detention: Gay on Nauru, in Archer Magazine (July 2018) and

True love in Nauru, in The Monthly (September 2017)

[ii] Lest I be accused of partisanship, I also wrote to Labor Immigration Ministers Chris Bowen and Brendan O’Connor on the same subject in 2012 and 2013.

[iii] This is a commitment I drafted ahead of the 2015 National Conference, and remains one of my proudest achievements in LGBTI advocacy.

[iv] Of course, there is a great irony in the Coalition supporting a gender-based quota for refugee intake, while it steadfastly opposes gender-based quotas for the pre-selection of its candidates.

Scott Morrison is Unfit to be Prime Minister

Scott Morrison became Australia’s 30th Prime Minister on 24 August 2018. In my opinion, based on his (mis)treatment of the LGBTI community, he is unfit to hold that esteemed position. Here’s why:

 

  1. As Treasurer, Morrison allocated $160million to the same-sex marriage plebiscite

 

In his first Budget as Treasurer in May 2016, Morrison allocated $160million to the unnecessary, harmful and divisive plebiscite on same-sex marriage. This is despite the fact Parliament could have voted on this issue for free, and the money better spent on literally almost anything else.

 

  1. As Treasurer, Morrison oversaw $80.5million in spending on the postal survey

 

Despite the Senate rejecting legislation to hold the Turnbull Liberal-National Government’s proposed plebiscite, it decided to hold a postal survey instead. While Finance Minister Matthias Cormann signed the cheque, the money still came from Treasurer Morrison’s Budget. Once again, Parliament could have voted on this issue for nothing – but they chose to throw away $80.5million of our taxes anyway. Liberal and National Party MPs and Senators should be asked to repay it.

 

  1. During the postal survey, Morrison campaigned for a No vote

 

Given his conservative religious background, it is unsurprising Morrison campaigned for people to be denied equality under secular law simply because of their sexual orientation, gender identity or sex characteristics. During the postal survey he said that:

 

“My view on this topic is as important as everyone else’s. That is why we are having a survey on it. My view is, look I am voting no, it is okay to say no and people should know that.”

To some extent, Morrison was entitled to express that opinion. However, it is included here to demonstrate he believed the postal survey was a legitimate process to determine this issue, a context that makes the next two acts substantially more objectionable.

 

  1. Morrison voted for every discriminatory amendment put forward during parliamentary debate on same-sex marriage

 

Following the announcement of the 61.6% Yes vote on 15 November 2017, the Parliament still had to pass legislation to give that result legal effect (thus demonstrating the fundamental wastefulness of the postal survey). During debate of Dean Smith’s Marriage Amendment (Definition and Religious Freedoms) Bill 2017, Morrison moved amendments to protect organisations and charities that espoused discriminatory beliefs including:

 

  • ‘the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage’, and
  • ‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth.’

 

Thankfully, it was defeated. Morrison also voted for every single other set of amendments seeking to add anti-LGBTI discrimination to the Bill. Perhaps the worst was an amendment to insert two separate definitions of marriage in the Marriage Act 1961 (Cth):

 

‘marriage means:

(a) the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or

(b) the union of 2 people to the exclusion of all others, voluntarily entered into for life.’

 

Again, this amendment was defeated. But we cannot forget that, despite more than 3-in-5 Australians voting for equality, Morrison voted to entrench separate definitions for marriage in the Act itself. This goes against one of the most important political lessons of the 20th century: separate but equal is never equal.

 

  1. Morrison abstained from voting on the same-sex marriage bill

 

Despite:

  • Allocating $160million to the plebiscite in his Budget
  • Overseeing $80.5million spending on the postal survey
  • Campaigning during the postal survey, and
  • Participating in debate on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017,

Morrison abstained on the final vote on this legislation.

 

As discussed above, he clearly saw the postal survey process as legitimate, but he didn’t see the outcome as legitimate when his side lost. Morrison ultimately refused to implement the will of the people.

 

This was a gross insult to the 7,817,247 Australians who voted Yes, including the 55% of people who voted Yes in his electorate of Cook.

 

Scott Morrison didn’t respect our vote on the postal survey. He doesn’t deserve our vote on 18 May.

 

However, it isn’t just on marriage that Morrison’s words and actions mean he is, in my view, unfit to hold the highest office in the land.

 

  1. As Minister for Immigration, Morrison imprisoned LGBTI people seeking asylum in countries that criminalised them

 

Morrison was Minister for Immigration from September 2013 to December 2014. During this time, he imprisoned people seeking asylum on both Nauru and Manus Island, Papua New Guinea. This included lesbian, gay, bisexual, transgender and intersex refugees, despite the fact both Nauru and PNG criminalised homosexuality. This policy effectively continued their persecution – and he continued to do so even after this issue was raised with him.

 

  1. As Treasurer, Morrison axed funding for the Safe Schools program

 

Morrison as Treasurer signed off on the axing of an effective, evidence-based anti-bullying program that cost just $8million over three years but provided significant benefits to LGBTI students. This Budget cut was ideological not financial – elsewhere he found room for the $80.5million postal survey, as well as more than $60million per year for the National School Chaplaincy Program.

 

  1. As Prime Minister, Morrison tweeted against programs supporting trans children

 

On 5 September 2018 – less than a fortnight into the job – Morrison published his infamous ‘gender whisperers’ tweet:

 

Morrison gender whisperers copy

 

His ‘let kids be kids’ message in practice said that children should be protected from the very idea that trans and gender diverse people exist. Worse, Morrison was arguing trans and gender diverse children, who are some of the most vulnerable members of the Australian community, should be left to struggle in isolation, without any support from their schools.

 

If there is a better example of ‘un-Prime Ministerial’ behaviour, I am yet to see it.

 

  1. As Prime Minister, Morrison refused to condemn gay conversion therapy

 

In the same week, Morrison was asked about his policy on anti-gay and anti-trans conversion therapy, a practice that is nothing less than the psychological torture of people on the basis of their sexual orientation or gender identity. His response:

 

“I think people should make their own choices about their own lives… That’s always been my view. I’ve never been involved in anything like that, I’ve never supported anything like that. So mate, it’s just not an issue for me, and I’m not planning to get engaged in the issue.”

 

He has refused to take any action on this issue in the seven months since. Once again, Morrison has displayed his lack of concern for people whose life experiences are different to his own.

 

Indeed, on all four of these issues – LGBTI people seeking asylum, LGBTI students, trans and gender diverse children and survivors of anti-gay and anti-trans conversion therapy – he has shown that he basically does not care about some of the most disadvantaged people in society.

 

If Scott Morrison does not have empathy for others, he should not receive the votes of others.

 

  1. As Prime Minister, Morrison broke his promise to protect LGBT students against discrimination

 

In response to the leaking of recommendations from the Ruddock Religious Freedom Review in October 2018, Morrison promised he would protect lesbian, gay, bisexual and transgender students against discrimination by religious schools before the end of the year.

 

That deadline came and went, and his Government never even introduced a Bill to try to give effect to this commitment. The 45th Parliament has now expired, with LGBT students just as exposed to mistreatment and abuse as they were before his hollow words.

 

In fact, Morrison delayed any action on this issue by referring the subject of ‘religious exceptions’ to the Australian Law Reform Commission for review by 10 April 2020, meaning LGBT students will not be protected until the start of the 2021 school year (at the earliest). This is an egregious breach of faith of the Australian people, who expected him to back his promise with action.

 

  1. Morrison has no policies on LGBTI issues

 

Less than four weeks before the election and it appears the Liberal Party has no policies on LGBTI issues. Try searching the Liberal Party’s website. There’s nothing there. Nada. Zero. Zilch.

 

In the first 11 days of the election campaign the only comments I can find Morrison has made on LGBTI issues is the same, re-hashed promise to protect LGBT students against discrimination – you know, the promise he has already broken once. It’s clear he does not have a plan for lesbian, gay, bisexual, transgender and intersex Australians.

 

If Scott Morrison won’t govern for all Australians, he shouldn’t govern any Australians.

 

  1. Morrison won’t tell us what’s in his Religious Discrimination Bill

 

The other major outcomes of the Religious Freedom Review were a proposal for a Religious Discrimination Bill (which was recommended by Ruddock) and a promise to appoint a Religious Freedom Commissioner (which was not recommended).

 

These represent the biggest changes to Commonwealth anti-discrimination law since the introduction of the Age Discrimination Act 2004.

 

However, despite having the Religious Freedom Review for 11 months, and comments in December by Attorney-General Christian Porter about “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”, we are yet to see any details of this legislation.

 

Indeed, the day before the election was called, it was reported that:

 

“Attorney-General Christian Porter told The Australian the religious discrimination bill was “well advanced” but “not at the point of readiness”. “It remains clear government policy and, if re-elected, one of the first orders of business would be to pursue that legislation” (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).

 

This is particularly worrying for LGBTI Australians because, while protecting religious minorities against discrimination would be welcome, a Religious Discrimination Bill could also include new rights for religious organisations to discriminate against LGBTI people (the same kinds of amendments that Morrison himself voted for during the same-sex marriage debate).

 

The reality is we are being deliberately kept in the dark about legislation that could have significant impacts on Australian society, something the Government itself says will be implemented shortly after the election. That, in my opinion, is treating voters with contempt.

 

Updated 13 May 2019:

 

13. Morrison refused to disendorse a candidate who linked same-sex marriage to paedophilia

 

Early in the election campaign it was reported that the Liberal candidate for Scullin, Gurpal Singh, had linked same-sex marriage to paedophilia in an interview during the same-sex marriage postal survey. Despite a significant public backlash, and the disendorsement of other candidates for equally-discriminatory comments, Morrison steadfastly refused to disendorse Mr Singh for more than two weeks. Singh was only forced to resign following publication of unrelated (and despicable) comments about rape. The entire saga clearly demonstrated that for Morrison – who had repeatedly used the phrase ‘the standard you walk past is the standard you accept’ – extreme homophobia is entirely acceptable.

 

**********

 

Of course, there are other, non-LGBTI issues that cast serious doubt on Scott Morrison’s suitability for the position of Prime Minister (other actions from his time as Minister for Immigration, and bringing a lump of coal into Parliament, spring immediately to mind).

 

But, even ignoring everything else, on the basis of his (mis)treatment of LGBTI people alone, in my view it is clear Morrison is unfit to be the leader of this country. It’s now up to the rest of Australia whether they see fit to keep him there on 18 May.

 

Updated 24 May 2019:

 

To the shock, and disappointment, of many LGBTI people, the majority of Australians did indeed see fit to keep Scott Morrison in the top job last Saturday. His surprise victory leaves him with significant personal clout within the Liberal-National Government.

 

How he uses that clout will be crucial in determining whether the re-elected Coalition Government actively seeks to wind back LGBTI rights in Australia, and if so how aggressively it pursues that agenda.

 

The first test will be the Religious Discrimination Bill (or Religious Freedom Bill), likely to be introduced in the second half of 2019. LGBTI Australians must be prepared to do everything in our power to stop this legislation if it expands the rights of religious organisations to discriminate against us. We’ll be watching, and ready to act if necessary.

 

 

Morrison

 

Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.

 

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

Do you feel proud, Malcolm?

Update 18 February 2017:

 

Over the past five years I have written to a number of Immigration Ministers (including Chris Bowen and Brendan O’Connor under Labor, and Scott Morrison under the Coalition), expressing concerns about the mistreatment of LGBTI people seeking asylum, and especially the policy of detaining, processing and resettling LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and, until May 2016, Nauru).

 

It is fair to say that I have received an equal number of disappointing replies to my correspondence – my letters, and the responses to them, are published here.

 

I was prompted to write again in October 2016, this time to Prime Minister Malcolm Turnbull, following the exchange between Labor Senator Louise Pratt and the Secretary of the Department of Immigration and Border Security, Mr Michael Pezzullo, at Senate Estimates.

 

During that exchange, not only did Mr Pezzullo display a stunning lack of awareness of the ongoing criminalisation of homosexuality in our nearest neighbour, he also seemed uninterested in the issue of how PNG’s criminal laws might impact LGBTI people seeking asylum sent there by the Australian Government.

 

Predictably – although still shocking – Mr Pezzullo argued that Australia’s obligation towards these people seeking asylum ended at the point of transfer to Manus Island, and therefore we collectively bore no responsibility for ensuring that their human rights were respected.

 

The full letter I wrote to the Prime Minister is reproduced below. Almost four months later I have finally received a response, not from Mr Turnbull, nor even from the current Immigration Minister Peter Dutton, but instead from the Department of Immigration of Border Protection. This is what they sent:

 

Dear Mr Lawrie

 

Thank you for your correspondence of 9 November 2016 to the Prime Minister, the Hon Malcolm Turnbull MP, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. Your correspondence has been referred to the Minister for Immigration and Border Protection as the matters raised fall within his portfolio responsibilities. 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 apologise for the delay in responding.

 

As out lined in the Department’s response to your previous letters to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, and the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, Australia takes its international obligations seriously, including those under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

 

As previously advised, 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 a regional processing country where any asylum claims they may have will be assessed. The Government has signed Memoranda of Understanding with the Governments of Nauru and Papua New Guinea (PNG), which support this.

 

As previously noted in the Department’s response to your letter to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, any claims made against a regional processing country by the IMA, including claims concerning the treatment of homosexuals in the regional processing 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 regional processing country, or an alternative regional processing country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.

 

As previously advised, the enforcement of PNG domestic law is a matter for the Government of PNG. The Australian Government is aware of laws relating to homosexual activity in PNG but also understand that there have been no reports of prosecutions under those laws since 2012. As of May 2016 same-sex activity is legal in Nauru.

 

Further, I confirm that if homosexual activity should occur in the Regional Processing Centres, there is no mandatory obligation under PNG or Nauru domestic law for Australian officers or contracted service providers to report such activity to the respective Government or police.

 

Thank you for brining your concerns to the Government’s attention.

 

Yours sincerely

[Signature withheld]

A/g Director ABF Ministerial Correspondence Section

Support Group – Australian Border Force

14 February 2017

 

There are obviously a number of worrying statements in this letter, including:

 

  • The Department of Immigration and Border Protection has reiterated the process that LGBTI people seeking asylum who arrive by boat must, in the short period between arrival and transfer, declare their sexual orientation, gender identity and intersex status, and express their specific concerns about being detained in PNG. This ignores the lived experience of LGBTI people seeking asylum, their often legitimate safety concerns in disclosing their status especially in close proximity to other people seeking asylum who may be unaware and/or not accepting of them, and the fact that for many people seeking asylum it takes months or even years for them to disclose anti-LGBTI persecution as the basis of their refugee claim. It also presumes that they are aware of the current criminal laws of Papua New Guinea, something of which even the Secretary of the Department of Immigration and Border Security was ignorant.

 

  • The letter also repeats previous ‘assurances’ that there is no mandatory reporting obligation in relation to homosexual activity in the Manus Island detention facility. However, this avoids the real problem – the criminal laws of PNG do apply to LGBTI people seeking asylum and refugees on Manus Island, and homosexual conduct can be reported to PNG police. The mere threat of such referral is sufficient to cause real fear among LGBTI people in this situation, alongside legitimate safety concerns (after all, it is difficult to report anti-LGBTI violence to police when the same authorities can prosecute you for simply being who you are).

 

Overall, then, there is nothing in the response from the Department of Immigration and Border Protection to suggest that the situation for LGBTI people seeking asylum detained on Manus Island will improve anytime soon. Shamefully, the human rights abuse of LGBTI people put there by the Australian Government will continue for the foreseeable future. Which means that our responsibility to stand up for them, and campaign for change, must continue too.

 

Original Post:

 

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

 

Tuesday 25 October 2016

 

Dear Prime Minister Turnbull

 

LGBTI Refugees and People Seeking Asylum

 

I am writing to you about a subject that is incredibly important, but one that does not often attract significant attention – from the media, from the public and, above all, from the Australian Government.

 

That subject is the mistreatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees, and people seeking asylum, including the decision by successive Australian Governments to detain, process and even seek to resettle these people in countries that criminalise homosexuality.

 

I believe that this approach, exposing people who have sought Australia’s protection to persecution and prosecution in other countries, simply because of who they are, is a fundamental breach of human rights.

 

I have expressed concerns about this mistreatment from the very beginning of Australia’s current offshore processing regime. Within one month of the passage of legislation authorising the removal of people seeking asylum who arrived in Australia by boat to Nauru and Manus Is, Papua New Guinea (PNG) in August 2012, I wrote to both then Immigration Minister Chris Bowen, and then Shadow Immigration Minister – and now Treasurer – Scott Morrison.

 

In that letter I asked: “Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?

 

“Are you aware that homosexuality is current illegal in all three countries[i] 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?”

 

It took nine months to obtain a reply, not from Minister Bowen, nor from his successor (Brendan O’Connor), but instead from the Department of Immigration. But the reply I did receive was incredibly disappointing.

 

Not only did it fail to answer whether LGBTI people transferred to Nauru and PNG could be subject to criminal prosecution, it then indicated that, in order to avoid the risk of mistreatment on the basis of sexual orientation, gender identity or intersex status in those countries, people seeking asylum needed to raise those concerns in the extremely short ‘window period’ prior to transfer[ii].

 

It seems the Australian Government was completely uninterested in LGBTI people transferred to Nauru and PNG if they only disclosed their sexual orientation, gender identity or intersex status after being transferred.

 

Someone else who was uninterested in this subject was Shadow Immigration Minister Scott Morrison, who never even bothered to reply to my correspondence.

 

Undeterred, following the change of Government in September 2013 and with Mr Morrison assuming the role of Minister for Immigration and Border Protection, I wrote to him again in February 2014.

 

In that letter I repeated my concerns about the mistreatment of LGBTI refugees and people seeking asylum transferred to Manus Island and included reference to the Amnesty International Report This is Breaking People, which had found that:

  • “Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
  • Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there [and]
  • Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police…”

 

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

 

This time around, it only took the Department of Immigration and Border Security five and a half months to respond to my concerns[iii]. Their underwhelming response included the following statement:

 

“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 [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted service providers to report such activity to the PNG Government or police.”

 

In short, the then Australian Government – of which you were a senior Minister – rejected the claim that there was mandatory reporting of ‘homosexual activity’ to PNG police, but explicitly did not deny that the laws of that country, outlawing sex between men, applied to the refugees and people seeking asylum that we, as a country, had placed there.

 

In March of this year, I raised the issue of the mistreatment of LGBTI refugees and people seeking asylum again, this time through a submission to the Senate Legal and Constitutional Affairs Committee inquiry into conditions and treatment of asylum seekers and refugees in Nauru and PNG.

 

Unfortunately, that Senate inquiry lapsed due to your calling of a double dissolution election but, before Parliament was dissolved, the Committee issued an interim report, including the following paragraph:

 

“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[iv] 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…”

 

Thankfully, post-election the Senate has decided to initiate a new inquiry looking at the issue of abuse, self-harm and neglect of asylum seekers in Nauru and PNG, and its investigation is ongoing.

 

On a more negative note, however, it is unclear how the Government will respond to any findings from such an inquiry, given Liberal and National Party Senators recommended, in the interim report, that “examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

 

Coincidentally, it is Senate Estimates that leads me to write to you, in your role as Prime Minister, today.

 

Last Monday, 17 October 2016, during the Legal and Constitutional Affairs Committee’s Senate Estimates Hearing of the Department of Immigration and Border Protection, there was an extraordinary exchange between WA Labor Senator Louise Pratt, and Departmental Secretary Mr Michael Pezzullo.

 

And by extraordinary, I mean extraordinarily dismissive of the legitimate concerns of Senator Pratt, and others including myself, about the mistreatment of gay, bisexual and same-sex attracted refugees and people seeking asylum placed on Manus Island by successive Australians Governments.

 

I have included the full text of this exchange as an Attachment with this letter[v]. I strongly encourage you to read it. If you do, you will see how little priority has been given to this issue, including by the Department of Immigration and Border Protection under the Prime Ministerships of your predecessors and now of course under you.

 

First, it was surprising to witness, via the following exchange, Mr Pezzullo appear not to know that male homosexuality is criminalised under PNG law:

 

“Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not.
Senator.

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG.”

 

Given, as we have seen above, I have raised this issue with successive Ministers for Immigration, and received multiple responses from the Department of which he is now the head, not to mention the ongoing advocacy on this subject by organisations like the Human Rights Law Centre, Amnesty International, Kaleidoscope Human Rights Foundation and NSW Gay & Lesbian Rights Lobby, it is alarming to hear the Secretary’s lack of knowledge about the risk of prosecution for LGBTI[vi] people detained and processed on Manus Island.

 

Second, and less surprisingly but even more worryingly, was the distinct lack of concern on display by Mr Pezzullo, with the implication that the mistreatment of LGBTI refugees and people seeking asylum was not something that had crossed his desk, or that he had actively turned his mind to, in his two years as Secretary:

 

“Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer.” [And later]

“Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.”

 

Third, and perhaps least surprising – but most worrying – of all, was the position stated by Mr Pezzullo, at multiple points, that the Australian Government has no responsibility towards LGBTI refugees and people seeking asylum that it has sent to Manus Island after they have been transferred. For example:

 

“Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 2 1⁄2 years; the Australian government acquitted its nonrefoulement obligations over 2 1⁄2 years ago, at a minimum—“ [And later]

“Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.”

 

In effect, Mr Pezzullo was arguing, on behalf of the Australian Government – your Government – that, once Australia had transferred refugees and people seeking asylum to Manus Island, and unless those LGBTI refugees had explicitly raised concerns in the hours or at most days between their arrival by boat and their transfer, Australia had no ongoing responsibility towards them.

 

Now, Mr Pezzullo may or may not be correct from a legal viewpoint. I am sure there are human rights advocates, and potentially courts and tribunals both in Australia and in Papua New Guinea, who might take a different view.

 

But he is definitely wrong in every other respect. Australia, and the Australian Government, absolutely has a responsibility towards LGBTI refugees that, through its actions, it has caused to be sent to Manus Island for detention, processing and even resettlement.

 

It has a moral obligation. An ethical obligation. A social obligation. A human obligation.

 

These are people who sought the protection of the Australian Government, which then chose to send them to countries where, far from being safe from persecution, they were – and still are – at risk of criminal prosecution simply because of who they are.

 

I cannot see how anyone could possibly assert that the successive Australian Governments, and Prime Ministers, who have created this situation and exposed these people to potential harm, do not have a responsibility towards them.

 

And obviously that means that your Government, and now you as Prime Minister, also have a moral, ethical, social and above all human responsibility to do something about it.

 

The question I have for you is: will you?

 

Will you take action to remove LGBTI refugees and people seeking asylum from Manus Island, where they were placed by the Australian Government and where they are still subject to criminalisation?

 

Prime Minister, you are a Member of Parliament representing one of the ‘gayest’ electorates in Australia, with literally thousands, if not tens of thousands, of LGBTI people living in the seat of Wentworth.

 

You claim to support the equality of LGBTI people, both legally and socially. Earlier this year, you even became the first sitting Prime Minister to attend Australia’s largest ‘Pride’ event, the Sydney Gay & Lesbian Mardi Gras Parade.

 

That night, you joined in celebrating the hard-fought and hard-won freedom, and increasing equality[vii] and acceptance, of Australia’s LGBTI community, surrounded by tens of thousands of lesbian, gay, bisexual, transgender and intersex people, as well as their families and friends.

 

That very same night, and for hundreds of nights beforehand and every night since, just 3,500km to the North, a much smaller number of gay, bisexual and same-sex attracted refugees had far less reason to celebrate: certainly not freedom, and instead of equality and acceptance, a fear of prosecution and persecution by a Government that considers them criminals.

 

And the only difference between these two groups – between the ‘loud and proud’ crowd on Oxford St, and the isolated and vulnerable individuals on Manus – is where they were born.

 

The actions of successive Australian Governments have put the latter group where they are, directly in harm’s way. As the Prime Minister since September 2015, and leader of the current Liberal-National Government, you now keep them there.

 

You might have celebrated ‘pride’ with Australia’s LGBTI community almost 8 months ago, but contributing to the detention, processing and resettlement of LGBTI refugees in countries that criminalise them is nothing to be proud of.

 

And I think, deep down, you understand that. In which case, it is up to you to do something that you, your Government and the country you lead can be proud of:

 

Bring. Them. Here.

 

Your predecessors negotiated with the PNG Government for Manus Island to become the site of the ‘Regional Processing Centre’. You have the power to negotiate with the PNG Government to close that same centre and bring the refugees and people seeking asylum there back to Australia.

 

In fact, after the PNG Supreme Court earlier this year ruled that the detention of refugees and people seeking asylum on Manus Island was illegal, and in breach of the PNG Constitution’s right to personal liberty[viii], I suspect their Government would welcome such a move.

 

Bring them here and end the frankly horrific situation whereby LGBTI people who have fled persecution in other parts of the world, including those fleeing persecution on the grounds of sexual orientation, gender identity or intersex status, have been deliberately left in a place where they are subject to criminal laws on the basis of those same attributes.

 

Successive Australian Governments put them there. You, as Prime Minister, and leader of the current Government, can get them out. Do something that makes us all proud. Please, Prime Minister Turnbull, bring them here.

 

Sincerely,

Alastair Lawrie

 

malcolm-turnbull-mardi-gras

Prime Minister Malcolm Turnbull, celebrating ‘pride’ at the 2016 Sydney Gay & Lesbian Mardi Gras Parade. Not pictured: The gay, bisexual and same-sex attracted refugees and people seeking asylum detained on Manus Island, PNG.

 

**********

 

Attachment A

Senate Estimates Monday 17 October 2016

Legal and Constitutional Affairs Committee Hearing re Department of Immigration and Border Protection

Senator PRATT: I would like to know how many men on Manus have been given positive refugee status determinations on the basis of their sexuality.

Mr Pezzullo: Their claim of persecution relates to sexuality?

Senator PRATT: That is right.

Mr Pezzullo: I will ask Ms Noble or other officers to join me, but I am not sure that we would immediately have that data to hand, because we do not do the refugee status determination. Unless Ms Moy can answer the question directly, we will take it on notice.

Senator PRATT: You would agree that some would have had to have been found as refugees, basically?

Mr Pezzullo: Possibly. I do not know.

Ms Moy: The RSD process in Papua New Guinea is run by ICSA. We are not privy to the information of each claim. We would need to go to Papua New Guinea and ask them that question. So we would need to take it on notice.

Senator PRATT: But that is a difficult thing, given that homosexuality is actually illegal in PNG. They are having to make these disclosures to the PNG government, in which case they may even have a well-founded fear of persecution from within PNG. Is that not correct?

Mr Pezzullo: We will have to take on notice how the PNG authorities have dealt with the assessment of claims pursuant to both their international legal obligations and the operation of their domestic law.

Senator PRATT: Well, homosexuality is a criminal offence there. It is illegal.

Mr Pezzullo: I understand the point you are making. What I am saying is that how the PNG authorities have assessed those claims is a matter that would not be readily known to Ms Moy and myself.

Senator PRATT: What is the government’s advice to those men who are currently on Manus who are refugees because they are gay and who are about to be resettled in PNG?

Mr Pezzullo: Which government’s advice? The advice of the Australian government?

Senator PRATT: Yes.

CHAIR: Well, that is not a question for you, Mr Pezzullo. You are not here to give advice to people in detention in another country.

Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 21⁄2 years; the Australian government acquitted its nonrefoulement obligations over 21⁄2 years ago, at a minimum—

Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer. Australia, through two agreements, two heads of agreement—one initiated under the Gillard government and one under the Rudd government and then consolidated under subsequent governments—entered into agreements to transfer persons who arrived here by illegal maritime means into the jurisdictions of either Nauru or PNG, two separate transfers. At that point our nonrefoulement obligations had to be addressed and acquitted, and they were. There is no ongoing—

Senator PRATT: In what manner were issues of sexuality addressed within that agreement? Or were they not?

Mr Pezzullo: You cannot refoule persons back to the country of origin where they have raised claims of persecution. There were no claims of persecution against the states or the regimes of Nauru and PNG.

Senator PRATT: I understand that that is about returning people to their country of origin. But in effect we have taken them to a country where they could be subject to exactly the same form of persecution, where they are supposed to be having their claim for asylum processed.

Mr Pezzullo: Well, you speculate that. When you say we have ‘taken them to a country’—we cannot simply drop people off. We entered into intergovernmental agreements, to transfer persons from the Australian migration jurisdiction to other migration jurisdictions. At that point, the last of which occurred 21⁄2 years ago, because there have been no transfers since, all of Australia’s obligations in that regard were discharged.

Senator PRATT: In other words, the Australian government has no responsibility to those gay men who are currently detained on Manus in terms of whether their human rights in relation to their sexuality will be upheld in PNG or not.

Mr Pezzullo: I understand the question you are asking. You say that the Australian government has no responsibility in that circumstance, but the Australian government—a number of governments, actually, that straddle several parliamentary terms—discharged all of its legal undertakings at the time of the transfer, yes.

Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.

Senator PRATT: But we have a contract with the PNG government that—

Mr Pezzullo: We have an agreement, yes.

Senator PRATT: We have an agreement for which the PNG government is paid, and within that agreement there are men whose original claim for protection was based on their homosexual identity. Their claims are being processed in a country in which homosexuality is illegal.

Mr Pezzullo: Senator, you state, as an assertion—in what I think is a question—that their original claims were founded on sexuality.

Senator PRATT: They may or may not have been.

Mr Pezzullo: Thank you.

Senator PRATT: The question is that people who are homosexual and who are currently detained or being processed on Manus—their homosexuality may or may not have been part of their original claim—are being processed in a country in which homosexuality is illegal and they are being forced to be there.

Mr Pezzullo: Which might mean, in the circumstances that you describe—and this is a matter for the government of Papua New Guinea—that the government of Papua New Guinea is not able to resettle those gentlemen within their domestic jurisdiction. In that case, the government of PNG will need to enter into arrangements with so-called third country resettlement options where that clash with domestic law—or that contradiction with domestic law, if I can characterise it in those terms—is not applicable.

Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not.
Senator

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG. I understand the point of the question you are asking. What I am saying is: those persons—the single adult men who are on Manus—are in the legal jurisdiction of the government of Papua New Guinea. They have both international obligations that pertain to the 1951 Refugee Convention, which include non-refoulement, and other complementary protections that attach to various other covenants that that government has entered into. Then they have domestic laws which, as I understand from reporting, can be characterised in the way that you have described. It is now a matter for the government of Papua New Guinea to resolve: how do you settle a person who you know to have a well-founded fear of persecution—across a range of matters, one of which might be related to sexuality—within your domestic jurisdiction? I do not know—Ms Moy might be able to assist me—if we have been asked for technical assistance in terms of how to perhaps assist with the country options. I just do not know.

Ms Moy: Not at this stage.

Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.

Senator PRATT: I think I have exhausted that. Clearly the government has no further responsibility.

**********

Footnotes:

[i] At the time the Australian Government continued to advocate the transfer of refugees and people seeking asylum to Malaysia, in addition to Nauru and PNG.

[ii] From the response: “Pre-Transfer Assessment is undertaken prior to a person’s transfer to a [Regional Processing Country] 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 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 is power under section 198AE of the Migration Act 1958 to exempt that person rom transfer.”

[iii] The response is included with the original letter, here.

[iv] Since the time of my submission to that inquiry, and in very welcome news, Nauru has finally decriminalised male homosexuality.

[v] The original transcript for this hearing can be found on pages 132-134 here.

[vi] I note that only ‘male’ refugees have been transferred to Manus Island, in which case the majority of people affected by these laws will be gay, bisexual and same-sex attracted ‘men’. However, for consistency with previous letters (to Ministers Bowen and Morrison) that also dealt with Nauru (to which women and children have been sent) the term LGBTI will continue to be used throughout this post.

[vii] Although obviously still not full equality, not just on the issue of marriage, but also in relation to trans birth certificates, non-consensual surgeries on intersex infants and extensive religious exceptions to anti-discrimination laws, among other issues.

[viii] ABC News, PNG’s Supreme Court rules detention of asylum seekers on Manus Island is illegal, 27 April 2016.

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.

 

**********

 

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.

 

**********

 

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

 

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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.

An LGBTI Agenda – Submission on Draft ALP National Platform 2015

The following is my personal submission in response to the National Platform – Consultation Draft of the Australian Labor Party, released ahead of the 2015 National Conference in Melbourne in July.

While, as an individual, I am obviously concerned about a wide range of issues, including health, education, workers’ rights and climate change, this submission focuses on issues relating to the equality and human rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

In this respect, despite the inclusion of the following statement in Chapter 1: Labor’s Enduring Values: “[w]e believe in equality for lesbian, gay, bisexual, transgender and intersex Australians, in their daily lives and under the law” (on page 9), and a number of welcome commitments throughout the document (including the strong statement relating to international LGBTI rights, in Chapter 11: Australia’s place in a changing world, at paragraph 31 on page 206), there remain several areas where the National Platform could better deliver on the Party’s promise of LGBTI equality.

In this submission I will make a range of recommendations to improve the Platform with respect to LGBTI issues, and, where relevant, include an explanation of why each change is required. This includes recommendations with respect to intersex issues (based on the recommendations made by OII Australia) and concerning refugee issues (based on the recommendations made by Labor for Refugees, with two additional proposals).

I will also make two recommendations with respect to the Party’s Rules, which will also be debated at the National Conference, and which directly relate to LGBTI equality.

Thank you for the opportunity to make this submission, and for considering its contents.

Alastair Lawrie

Remove religious exceptions to anti-discrimination laws

Recommendation 1: In Chapter 9: A fair go for all, under the heading “Removing discrimination”, on page 167 after paragraph 186, add the following:

“Labor will support the right of lesbian, gay, bisexual and transgender people not to be discriminated against by strengthening the protections currently contained in the Sex Discrimination Act.

Labor will remove the extremely broad exceptions which are granted to religious organisations in sub-section 37(1)(d) of the Act, and to religious schools in section 38, because LGBT people deserve the right not to be discriminated against in the public sphere, which includes health, education, aged care and other community services.”

Explanation

I have included this recommendation first both because I believe it will likely be the last major LGBTI law reform to be achieved in Australia, and because there are multiple references to the right to non-discrimination, including in the workplace, which are scattered throughout the National Platform – Consultation Draft (for example, in Chapter 5: Decent jobs with fair pay and conditions, at paragraph 21 on page 80: “Labor believes in protecting people from discrimination in obtaining and keeping employment” and in Chapter 10: Strong democracy and effective government, at paragraph 58 on page 194: “[s]trengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation and gender identity.”)

If these references are to mean anything – if Labor is genuine about tackling the discrimination which is all-too-frequently experienced by lesbian, gay, bisexual and transgender people – then the Sex Discrimination Act must be amended to ensure LGBT people cannot be discriminated against either as employees, or as people accessing services, across a wide range of the public sphere (health, education, community services, and aged care – as employees only, see below).

The exceptions which would remain in sub-section 37(1) of the Sex Discrimination Act would guarantee that employment within religious bodies like churches, but not in schools, hospitals or other community services, would remain exempt from the requirement not to discriminate, as would the conduct of religious ceremonies, thereby retaining the fundamental freedom of religion.

[Note: The recommendation relates only to LGBT and not LGBTI discrimination because the religious exceptions contained in the Sex Discrimination Act do not operate with respect to intersex status. Nevertheless, it should be highlighted that all state and territory anti-discrimination laws, outside Tasmania, also need to be amended to include intersex status as a protected attribute in the same way as the historic Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.]

Further improve LGBTI equality in aged care services

Recommendation 2: Retain the commitment to LGBTI inclusion in aged care services, as set out in Chapter 6: New opportunities for an ageing Australia, at paragraph 35 on page 95, but add an additional point:

“To help promote a genuinely inclusive aged care environment, Labor will remove exceptions from anti-discrimination law which currently allow religious-operated aged care facilities to discriminate against lesbian, gay, bisexual and transgender employees.”

Explanation

The previous Federal Labor Government had a strong record in LGBTI aged care, in delivering the historic first-ever National LGBTI Ageing and Aged Care Strategy, and in ensuring that, under the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 LGBTI people accessing aged care services would have protection from discrimination.

However, in order to create a genuinely inclusive environment in aged care facilities, and to respect the rights of LGBT employees in the aged care sector, these protections should be expanded to also cover employees (noting that intersex employees should already be covered by the existing law).

Support programs to prevent bullying and harassment of LGBTI students

Recommendation 3: In Chapter 7: A world-class education for all Australians, amend paragraph 10 on page 99 to read:

“The right to education includes an environment free from bullying and harassment, including racist, sexist, homophobic, biphobic, transphobic or intersexphobic bullying and harassment”, and insert a new paragraph in the same Chapter:

“Labor will continue to support and fund national programs to address homophobia, biphobia, transphobia and intersexphobia in schools.”

Explanation

The language change to paragraph 10 is important because, while homophobia is sometimes used as a catch-all for all forms of discrimination against LGBTI people, it is best practice, more accurate and more inclusive to also include references to biphobia, transphobia and intersexphobia.

The previous Federal Labor Government provided initial funding to the National Safe Schools Program in 2013, which is a valuable initiative in addressing LGBTI harassment and bullying, and improving LGBTI inclusion. Given the ongoing challenges in this area, a new Labor Government should commit to continue to support programs like Safe Schools.

Ensure LGBTI content is included in the National Health & Physical Education Curriculum

Recommendation 4: In Chapter 7, after paragraph 37 on page 103, insert a new paragraph:

“Labor acknowledges that the curriculum development process has produced a National Health & Physical Education (HPE) Curriculum that excludes content that is vital to meet the needs of LGBTI students and young people. Labor commits to reviewing the HPE curriculum and producing a new HPE curriculum, that genuinely includes LGBTI students and content, as well as enhanced and inclusive sexual health education.”

Explanation

Chapter 7: A world-class education for all Australians notes, at paragraph 6 on page 98, that “[e]very student in every school should have access to a quality education that meets their individual needs.”

Unfortunately, the National HPE Curriculum that has been developed under successive Governments fails to meet the needs of LGBTI students. It does not even use the words lesbian, gay or bisexual (and does not use the words transgender or intersex in the year level descriptions which set out what is to be taught), and, despite an ‘aspirational statement’ about student diversity, does not guarantee that content relevant to their needs will be taught in classrooms around the country.

The HPE curriculum also fails to ensure that all students, including LGBTI students, will receive comprehensive and inclusive sexual health education. Providing comprehensive sexual health education is also necessary to take action on the statement in Chapter 8: A health system for all, at paragraph 103 on page 132, that “[l]abor recognises the importance of renewing efforts to reduce the spread of HIV/AIDS, sexually-transmitted infections, and blood borne viruses, in partnership with the non-government organisation sector and driven by expert evidence.”

Labor should commit to rectifying these glaring omissions (relating to LGBTI students and content, and sexual health education) in the HPE curriculum.

Abolish the National School Chaplaincy Programme

Recommendation 5: In Chapter 7, after paragraph 44 on page 103, insert a new paragraph:

“Labor will abolish the National School Chaplaincy Programme and redirect moneys saved to support government schooling.”

Explanation

In Chapter 7, paragraph 44 on page 44 starts: “[e]very Australian in every community should have access to high-quality free, secular government schooling.”

The National School Chaplaincy Programme (NSCP), which involves employing people in government (and non-government) schools based on religious affiliation, is in direct contravention of this principle and is a serious misallocation of public resources.

Abolishing the NSCP will:

  • Recommit the Labor Party to supporting genuinely ‘free & secular’ education,
  • Provide an additional $250 million, over four years, to support government schooling, and
  • Remove the risk which some parts of the National School Chaplaincy Programme present to LGBTI students and young people.

Remove out-of-pocket medical expenses for transgender Australians

Recommendation 6: In Chapter 8: A health system for all, insert a new paragraph:

“Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirmation surgery. Cost should not be a barrier to accessing these services and/or surgery, and Labor commits to removing, wherever possible, out-of-pocket health expenses for transgender people incurred in relation to their gender identity.”

Explanation

In Chapter 8, at paragraph 9 on page 113, it says “[a] fairer and more equitable society is one in which all Australians are able to access high-quality and affordable health care, including any necessary medicines, on the basis of health care need, not their capacity to pay.” It is difficult to see a better application of this principle than in removing out-of-pocket expenses for transgender Australians in accessing health services and/or gender affirmation surgery, incurred in relation to their gender identity.

This goes beyond the commitment at paragraph 78 on page 127 (“[c]ontinue to ensure that Medicare and the PBS supports anti-discriminatory policies for lesbian, gay, bisexual, transgender and intersex Australians and that same sex couples and their families are not discriminated against in their access to Medicare and the Pharmaceutical Benefits Scheme”), because this commitment is about more than simply ‘non-discrimination’, it is about removing price barriers to essential services.

Improve mental health support for LGBTI people, including LGBTI young people

Recommendation 7: In Chapter 8, at paragraph 74 on page 126, amend the last dot point to read:

  • “Act to reduce the rate of youth suicide in rural communities, especially among young men, young Aboriginal and Torres Strait Islander people and young lesbian, gay, bisexual, transgender and intersex people” and

amend the third dot point at paragraph 78 on page 127 to read:

  • “Continue to support programs aimed at prevention of suicide, and for improved mental health, for high risk groups, including lesbian, gay, bisexual, transgender and intersex Australians.”

Explanation

The first amendment is to ensure that any specific regional, rural and remote health policies which are aimed to reducing youth suicide should explicitly include LGBTI young people in these regions as a high-risk group.

The second amendment is recognition that mental health issues for LGBTI people are bigger than ‘just’ suicide prevention, and must include programs for improved mental health more generally.

Support programs to address LGBT homelessness

Recommendation 8: In Chapter 9: A fair go for all, under heading “Homelessness” on page 156, add the following:

“Labor acknowledges the young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.”

Explanation

Lesbian, gay, bisexual and transgender youth experience much greater rates of homelessness than their cisgender heterosexual counterparts. This is in part caused by familial rejection, through challenges posed by school-based, or societal, homophobia, biphobia and transphobia, as well as other factors.

Given the specific causes of LGBT youth homelessness, and the need for cultural sensitivity in responding to the needs of homeless lesbian, gay, bisexual and transgender young people, Labor should support specific programs to deal with this issue.

[Note: I am unaware of research on intersex youth homelessness. Obviously, if such research exists, intersex young people should be added to this recommendation.]

Improve recognition of LGBTI parents in domestic law

Recommendation 9: In Chapter 9: A fair go for all, after paragraph 172 on page 165, add the following:

“Labor will seek national agreement on the recognition of lesbian, gay, bisexual, transgender and intersex parents, based on the principle that LGBTI-inclusive couples should be able to access assisted reproductive technology, to adopt, and to enter into domestic surrogacy arrangements, on an equal basis to cisgender heterosexual couples in every Australian State and Territory.”

Explanation

LGBTI-inclusive families continue to confront a patch-work of different laws around the country, with their ability to lawfully found a family dependent upon where they live.

A newly-elected Labor Government should seek to end this unacceptable situation, and pursue national agreement on consistent recognition of parenting laws, which do not discriminate on the basis of sexual orientation, gender identity or intersex status.

Ensure LGBTI parents have equality in inter-country adoption

Recommendation 10: In Chapter 9, after paragraph 172 on page 165, also add the following:

“Where adoption arrangements already exist between Australia and other countries, Labor will seek to ensure these arrangements are expanded to allow for inter-country adoption by LGBTI parents on an equal basis to cisgender heterosexual people.

Where Australia seeks to enter into new inter-country adoption arrangements, Labor will only sign such arrangements if they treat LGBTI parents equally.”

Explanation

The inter-country adoption arrangement between Australia and South Africa, negotiated in 2014, is the first Australian agreement which allows for LGBTI couples to adopt on an equal basis to non-LGBTI couples.

There is no reason why existing inter-country adoption arrangements should not be renegotiated by a newly-elected Labor Government to treat Australian couples equally irrespective of sexual orientation, gender identity or intersex status, or why the Australian Government should enter into any new agreements unless they are non-discriminatory on the basis of these attributes.

[Note: This is neither an endorsement nor repudiation of the practice of inter-country adoption, merely a resolution which seeks to ensure that, where it exists, it must treat lesbian, gay, bisexual, transgender and intersex Australians fairly.]

Improve LGBTI Inclusion in Sport

Recommendation 11: In Chapter 9: A Fair go for all, under the heading “Sport”, on page 178, after paragraph 265, insert the following paragraphs:

  • “Labor acknowledges the impact of homophobia and biphobia in sport, both on and off the field, and is committed to improving the inclusion of lesbian, gay and bisexual athletes and spectators.
  • Labor acknowledges the serious discrimination experienced by transgender participants in sport, as well as by transgender people off the field, and will work with the Australian Human Rights Commission on measures to address this discrimination.
  • Labor also acknowledges the serious discrimination experienced by intersex athletes, and especially women athletes with intersex variations, as well as intersex people off the field, and will also work with the Australian Human Rights Commission on measures to address this discrimination.”

Explanation

Recent work, by the Australian Human Rights Commission, Out on the Fields and other organisations, has demonstrated the significant issues surrounding homophobia, biphobia, transphobia and intersexphobia in sport. There has already been some work to address homophobia and biphobia, on and off the field, and this work should continue (and be supported).

However, the issues which confront transgender and intersex athletes are greater and, to a large extent, remain unaddressed. These specific challenges should be prioritised by the AHRC and others in coming years, to achieve acceptance for all people in sport, irrespective of sexual orientation, gender identity or intersex status.

Appoint a Spokesperson for LGBTI Equality

Recommendation 12: In Chapter 10: Strong democracy and effective government, on page 194 under the heading “LGBTI place in a stronger democracy”, add the following:

“Labor will appoint a spokesperson for lesbian, gay, bisexual, transgender and intersex equality and, in Government, will establish an office for LGBTI equality within the Department of Prime Minister and Cabinet.”

Explanation

Federal Labor should follow the lead of the recently elected Victorian Labor Government, which has appointed both the first ever Australian Minister for Equality, the Hon Martin Foley MP, and established an Office for Equality within the Victorian Department of Premier and Cabinet.

These moves help to ensure that LGBTI issues have a central point of coordination within Government, and are necessary to prevent LGBTI issues from being left off the political agenda – something which still happens far too often.

Establish an LGBTI Ministerial Advisory Committee

Recommendation 13: In Chapter 10, on page 194, amend the last dot point of paragraph 58 to read:

“Support and engage with communities and stakeholders to provide input into government decision-making, and establish a lesbian, gay, bisexual, transgender and intersex ministerial advisory committee.”

Explanation

There is no need for the equivocation which is currently contained in the National Platform – Consultation Draft on this issue (which reads “including consideration of a … ministerial advisory committee”). This should simply be done, and, together with the appointment of a Spokesperson for LGBTI Equality and Office for LGBTI Equality (recommended above) would provide the overall framework for effective, ongoing engagement between a Labor Government and the LGBTI community.

Appoint a Sexual Orientation, Gender Identity and Intersex Status Commissioner within the Australian Human Rights Commission

Recommendation 14: In Chapter 10, on page 194 under heading “LGBTI place in a stronger democracy”, add the following:

“Labor will amend the Sex Discrimination Act to establish a stand-alone Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, with equivalent powers, responsibilities and funding to the Sex Discrimination Commissioner.”

Explanation

There is currently no statutory figure within the Australian Human Rights Commission with responsibility for LGBTI issues – instead, these functions are performed on a part-time basis by the Human Rights Commissioner (aka the ‘Freedoms Commissioner’) Tim Wilson.

LGBTI issues, and homophobic, biphobic, transphobic and intersexphobic discrimination, are sufficiently serious to warrant the establishment of a stand-alone Commissioner, with similar powers, responsibilities and funding to the existing Sex Discrimination Commissioner (and this would again match the policies of the recently-elected Victorian Labor Government).

Introduce LGBTI Anti-Vilification Protections

Recommendation 15: In Chapter 10: Strong democracy and effective government, at paragraph 96 on page 199, amend the paragraph to read:

“Labor also recognises that homophobic, biphobic, transphobic and intersexphobic harassment by the written or spoken word causes actual harm, not mere offence, to people with a history of suffering discrimination and prejudice, and particular harm to young same-sex attracted, gender-questioning and intersex people, and considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. As such, Labor will introduce anti-vilification protections for lesbian, gay, bisexual, transgender and intersex Australians, which are based on and equivalent to existing racial vilification protections in the Racial Discrimination Act.”

Explanation

The discussion at paragraphs 95 and 96 is already strong, noting that “Labor stood with the community to successfully oppose the Government’s attack on the Racial Discrimination Act” as well as acknowledging the harms of homophobic harassment, particularly on vulnerable young people.

However, the commitment could be made stronger, both to be more inclusive (by genuinely include bisexual, transgender and intersex people), and to contain a clear and specific commitment to introduce anti-vilification laws. After all, homophobia, biphobia, transphobia and intersexphobia are just as offensive, and harmful, as racism –which means LGBTI Australians also deserve the same protections under the law.

Include LGBTI people in foreign aid

Recommendation 16: In Chapter 11: Australia’s place in a changing world, at paragraph 62 on page 210, amend the paragraph to read:

“Labor’s overseas aid efforts will focus on advancing human rights while addressing important development challenges, including ensuring people have the opportunity to lead healthy and prosperous lives regardless of gender, sexual orientation, gender identity, intersex status, ethnicity, religion or cultural beliefs and with access to shelter, education food and clean water, health and sanitation, and emergency services support.”

Explanation

This paragraph on foreign aid should be amended to include LGBTI people to match the strong statement on support for international LGBTI human rights, which is included at paragraph 31 on page 206 of the same Chapter.

Intersex Recommendations

I support the recommendations made by OII Australia (Organisation Intersex International Australia) in response to the National Platform – Consultation Draft, namely (renumbered here):

Recommendation 17: Inclusion of “intersex status” Change each instance of “sexual orientation and gender identity” to “sexual orientation, gender identity and intersex status” throughout the document.

Recommendation 18: Add specific content about intersex health and human rights Add content on intersex health to the section on “Lesbian, gay, bisexual, transgender and intersex health”, including the following objectives:

  • The deferral of non-necessary medical intervention on infants and children with intersex variations until such times as the person concerned can give informed consent.
  • The prohibition of modifications to sex characteristics undertaken for social rationales, without informed consent.
  • Ensuring that intersex persons’ right not to undergo sex assignment treatment is respected.

Recommendation 19: Create a specific institutional framework In “LGBTI place in a stronger democracy”, remove references to intersex people in discussion about a National Gender Centre. In place of this, add to the section on “Lesbian, gay, bisexual, transgender and intersex health” the following:

  • Fund national intersex-led organisations to provide support to intersex persons and their families, and advocate on intersex issues.

Recommendation 20: End PBS and Medicare discrimination In paragraph 78, recognise that current access to PBS and Medicare remains discriminatory in some contexts. Examples include access to testosterone by women with Complete Androgen Insensitivity Syndrome, and other people with gender markers other than male.

Recommendation 21: End discrimination against intersex women athletes Paragraph 62 should include a commitment to end discrimination against women athletes with intersex variations.

Recommendation 22: Ensure consent and proportionality in improvements to sex or gender markers on identification documents In paragraph 62:

  • Ensure proportionality in the use of sex and gender markers on official documents so that any presence of such markers fulfils a genuine and proportionate need.
  • Ensure that all people with intersex variations are able to exercise autonomy regarding sex/gender markers, and obtain identification options that match their sex characteristics and/or gender identities, as preferred.

As indicated above, I support all of these recommendations (and have incorporated the sport recommendation in my own recommendations, earlier). However, I would like to particularly emphasise OII recommendation 2 (renumbered as recommendation 18 here), which seeks to end the gross violations of human rights which were highlighted by the Senate Community Affairs Committee’s report on “Involuntary or coerced sterilization of intersex people in Australia” in October 2013, and also to note that the failure of Governments to act on these recommendations, almost two years later, should be a national scandal.

Refugee Recommendations

I support all of the recommendations made by Labor for Refugees.

Recommendation 23: In particular, I support their recommendation to amend Chapter 9: A fair go for all, paragraph 225 at page 173, by deleting “To support Australia’s strong border security regime, Labor will maintain:

  • An architecture of excised offshore places; and
  • The non statutory processing on Christmas Island of persons who arrive unauthorised at an excised place, except where other arrangements are entered into under bilateral and regional arrangements”

and replacing it with the following:

  • “Labor will dismantle the architecture of excision and end the associated non-statutory processing or applications for protections visas.
  • Labor will close the detention centres in Nauru and Manus Island.”

Explanation I am opposed to the offshore detention, processing and resettlement of refugees, and believe that the system of offshore detention centres, in Nauru and Manus Island, and the policy of resettlement in Nauru and Papua New Guinea, is cruel and inhumane, and a gross violation of the human rights of people who are simply seeking Australia’s protection.

I am also opposed to these policies as an LGBTI advocate and activist, and note that male homosexuality is currently criminalised by both the Nauru and Papua New Guinea Governments. This makes these environments unsafe for any refugee who is lesbian, gay, bisexual, transgender or intersex.

As such, if the above Labor for Refugees recommendation with respect to paragraph 225 is not agreed, I would propose the following recommendation:

Recommendation 24: “To add to Chapter 9: A fair go for all: Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.”

Irrespective of whether the original or alternative recommendations (or neither) are adopted, I would also make the following additional recommendation:

Recommendation 25: “To add to Chapter 9: A fair go for all: Labor will not return lesbian, gay, bisexual, transgender of intersex refugees to countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.”

Changes to the Party Rules

1. Pre-selection of LGBTI candidates

Rule Change 1: The Australian Labor Party Rules should be amended to include the following:

“Labor aims to improve the representation of lesbian, gay, bisexual, transgender and intersex people in the nation’s parliaments. As such, Labor aims to pre-select a minimum of 2% of candidates who are lesbian, gay, bisexual, transgender or intersex for the next Federal Election, scheduled for 2016.

This equates to a minimum of 3 candidates for the House of Representatives (out of 150), and 1 candidate for the Senate (out of a maximum of 40). If there is a double dissolution election, this would increase to a minimum of 2 candidates for the Senate.

Of the pre-selected candidates, at least half should be in ‘winnable’ seats and/or positions – equating to at least 2 candidates in total at a normal election, and at least 3 candidates in total at a double dissolution election.

If Labor does not meet these targets at the Federal Election scheduled for 2016, the Party President and National Policy Forum are instructed to jointly prepare more substantive Rules changes, to be brought to the next National Conference, establishing a system of affirmative action rules for LGBTI candidates in Federal, State and Territory Elections.

If the Party President and National Policy Forum are unable to reach agreement on proposed Rules, they are required to each bring forward proposed Rules changes on this subject for the consideration of National Conference.”

Explanation

There has never been an openly lesbian, gay, bisexual, transgender or intersex Member of the House of Representatives. From any political Party. And there has never been an identified transgender or intersex member of either chamber.

The Labor Party has also only ever had two out LGBTI Senators. There is currently only one identified LGBTI member of a Federal ALP caucus of 80. This stands in marked contrast to comparable Parliaments in Western democracies – with at least 32 lesbian, gay and bisexual MPs elected in the recent UK election.

The Opposition Leader, the Hon Bill Shorten MP, was correct to identify the historic under-representation of LGBTI people in Parliament as an issue when he ran for Party Leader in September and October 2013, and he was right to suggest that targets and/or quotas should be considered as a possible solution to the marginalisation of LGBTI people from elected politics in Australia.

This proposal is an interim step, announcing clear goals for the 2016 Federal Election, targets which, at 2%, could be described as incredibly modest. However, if the ALP is unable to meet even these modest targets then the Party President and National Policy Forum should be required to prepare further Rules changes, including affirmative action rules for LGBTI candidates, to be presented to the next ALP National Conference, and, if they are unable to agree, to bring forward two sets of proposals.

[Note: This is not to preclude other proposals for increased representation of different under-represented groups in Parliament, including Aboriginal and Torres Strait Islander people, especially given the Australian Labor Party has still only ever had one indigenous member of Federal Parliament.]

2. Introduce a binding vote for Marriage Equality

Rule Change 2: Abolish the following paragraph at page 262 of the current ALP Platform and Rules:

“Same sex marriage Conference resolves that the matter of same sex marriage can be freely debated at any state or federal forum of the Australian Labor Party, but any decision reached is not binding on any member of the Party.”

Explanation

The existing Platform’s policy commitment to marriage equality, and the proposed policy commitment in the National Platform – Consultation Draft (in Chapter 9: A fair go for all, at paragraph 190 on page 167: “Labor will amend the Marriage Act to ensure equal access to marriage under statute for all adult couples irrespective of sex who have a mutual commitment to a shared life”) is, of course, welcome.

However, this commitment is undermined by Rules which effectively make an issue of fundamental equality and human rights ‘optional’ for Labor MPs and Senators. This is wrong in principle, it is wrong for a Party based on solidarity and collective action, and it is a position which has actively wronged Australia’s LGBTI community, by further delaying a reform which, had the 2011 National Conference made the right decision, should have been passed in 2012.

It’s time the ALP acknowledged these wrongs, by removing the conscience vote on this issue from the Party’s Rules and adopting a binding vote in favour of marriage equality. #ItsTimeToBind

ALP Party President, and new Senator for NSW, Jenny McAllister, who is co-ordinating the review of the ALP Platform.

ALP Party President, and new Senator for NSW, Jenny McAllister, who is co-ordinating the review of the ALP Platform.

Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

The Australian Law Reform Commission is currently conducting an inquiry into Traditional Rights and Freedoms – Encroachment by Commonwealth Laws (at the behest of Commonwealth Attorney-General, Senator the Hon George Brandis). They have released an Issues Paper for public consultation, with submissions due by Friday 27 February 2015. For more information about the inquiry, see <http://www.alrc.gov.au/inquiries/freedoms The following is my submission, focusing on LGBTI vilification, religious exceptions to anti-discrimination law, and asylum-seekers and refugees, including LGBTI refugees.

The Executive Director

Australian Law Reform Commission

GPO Box 3708

Sydney NSW 2001

c/- freedoms@alrc.gov.au

Sunday 15 February 2015

To whom it may concern

SUBMISSION TO TRADITIONAL RIGHTS AND FREEDOMS INQUIRY

Thank you for the opportunity to provide a submission to the Traditional Rights and Freedoms – Encroachment by Commonwealth Laws Inquiry.

The subject of human rights and freedoms, and how they should best be protected, both by and from Government, is an important one, and is worthy of substantive consideration.

In this submission, I will focus on three particular areas in which the rights of people are currently being breached as a result of Commonwealth Government action, or in some cases, inaction:

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification
  2. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians, and
  3. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

Before I move to these issues in more detail, however, I wish to express my concern about the Terms of Reference (provided by Attorney-General, Senator the Hon George Brandis) and therefore the overall direction of this inquiry.

The way in which the Terms of Reference have been formulated, and consequently the manner in which the Issues Paper has been drafted, appears to prioritise some rights above others, merely because they are older, or are found in common law, rather than being more modern rights or founded through legislation or international human rights documents.

This is an unjustified distinction, and makes it appear, at the very least, that property rights or ‘the common law protection of personal reputation’ (aka protection against defamation) are more important than other rights, such as freedom from vilification or discrimination.

My criticism of this inquiry is therefore similar to that of the Rights & Responsibilities 2014 Discussion Paper released by the Human Rights Commissioner Mr Tim Wilson. From my submission to that inquiry[1]:

“Specifically, I would argue that the prioritising of 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.[2]

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”… but which then only focuses on a small number of freedoms, including the right to property, but which neglects others.”

[End extract]

Encouragingly, the ALRC at least acknowledges, on page 31, that “[f]reedom from discrimination is also a fundamental human right.” But the Issues Paper does not include a chapter on this right, nor does it include it within the list of “[o]ther rights, freedoms and privileges” in Chapter 19.

I believe that this imbalance, in examining and prioritising some fundamental rights, while essentially ignoring others, undermines the utility of this process – and is something which must be redressed in the Final Report, expected by December 2015.

I turn now to three particular areas in which the Commonwealth Government either itself breaches human rights, or authorises others to do so.

  1. The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification

[NB This topic relates to Chapter Two: Freedom of Speech, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of speech is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?]

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Issues Paper’s acknowledgement that there are possible justifications for encroachment on this right. In particular, the Issues Papers notes, at paragraph 2.2.4 on page 26:

“Similarly, laws prohibit, or render unlawful, speech that causes harm, distress or offence to others through incitement to violence, harassment, intimidation or discrimination.”

This obviously includes the prohibition on racial vilification contained in section 18C of the Commonwealth Racial Discrimination Act 1975[3].

My primary question is 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, and 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 last year in response to the Senator Brandis’ Exposure Draft Bill seeking to repeal section 18C, 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[4].

In short, if there should be a law to protect against the incitement to discrimination, hostility or violence on the basis of race, then there should also be a law to protect people on the basis of sexual orientation, gender identity and intersex status.

The fact that there is no such Commonwealth law means that the Government is currently failing in its duty to protect LGBTI Australians from vilification.

Finally, I note that this answer is, in some respects, contrary to the intention of “Question 2-2: [w]hich Commonwealth laws unjustifiably interfere with freedom of speech, and why are these laws unjustified?” because it instead proposes an additional area where freedom of speech should be limited.

I submit that such an answer is necessary to redress the imbalance contained in the Terms of Reference, and Issues Paper, because the right to freedom from vilification is equally worthy of recognition, and protection, in Commonwealth law. It is a right that should be extended to LGBTI Australians as a matter of priority.

  1. The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians

[NB This topic relates to Chapter 3: Freedom of Religion, and its questions:

  • What general principles or criteria should be applied to help determine whether a law that interferes with freedom of religion is justified?
  • Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?]

I acknowledge the fundamental importance of the right to freedom of religion. However, just as importantly, I support the statement on page 31 of the Issues Paper that:

“[f]reedom of religion is fundamental, but so too is freedom from discrimination on the grounds of gender, race, sexual orientation or some other protected attribute. Freedom from discrimination is also a fundamental human right.”

Indeed, the case at paragraph 3.20 on the same page, namely R v Secretary of state for education and employment; ex parte Williamson (2005) from the UK, provides a useful formulation:

“… there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest, is qualified. This is to be expected, because the way a belief is expressed in practice may impact on others.”

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religion, and protecting others from the harms caused by the manifestation of those beliefs, including through 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.

In practice, these exceptions provide Government approval and endorsement of the discriminatory treatment of lesbian, gay, bisexual and transgender (LGBT) Australians by religious bodies in a large number of areas of public life[5].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984[6] 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 against both LGBT employees/potential employees, as well as LGBT individuals and families accessing these services, with impunity; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[7]

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.

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 submit, 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[8], if supplemented by exemptions covering how religious ceremonies are conducted, are 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. These are the only religious exemptions that, I believe, should be retained.

This, much narrower, form of 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.

Finally, as with my previous answer, I note that this discussion is potentially contrary to the intention of “Question 3-2: Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?” because it highlights an area where, arguably, freedom of religion should be further restrained.

I believe that providing this answer is nevertheless important because, in Australia, freedom of religion is not unduly limited. Instead, freedom of religion is unjustifiably privileged, including where it tramples upon the rights of others, and especially the rights of lesbian, gay, bisexual and transgender Australians not to be discriminated against in public life.

A mature discussion of rights and freedoms would recognise this serious imbalance and seek to redress it, by ensuring that religious exceptions to and exemptions from anti-discrimination law only protected genuine freedom of religious worship, not establishing a supposed ‘right’ to discriminate against people on the basis of sexual orientation and gender identity.

  1. The gross violation of human rights of asylum-seekers and refugees, including LGBTI refugees, by the Commonwealth Government

I am not an expert in migration and refugee law, nor in the international human rights instruments that apply in this area.

Nevertheless, I know enough about this subject matter to submit that:

  • Seeking asylum is a human right, and is not a criminal act, irrespective of the manner of arrival (whether by plane or by boat),
  • Responding to people exercising their right to seek asylum by detaining them in offshore processing centres, indefinitely, in inhumane conditions, and without free and fair access to justice, is a fundamental breach of their human rights, and
  • An inquiry into the encroachment by Commonwealth laws upon traditional rights and freedoms would be incomplete without a thorough examination of this issue.

As a long-term LGBTI advocate and activist, I also feel compelled to raise the specific issue of LGBTI asylum seekers and refugees being processed and ultimately resettled in countries that criminalise homosexuality, namely Nauru and Papua New Guinea.

As I have written to several Commonwealth Immigration Ministers, under both Labor[9] and Liberal-National[10] Governments, such a policy clearly abrogates the responsibilities that the Commonwealth Government has towards LGBTI asylum-seekers.

From my letter to then Minister for Immigration the Hon Scott Morrison MP:

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

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

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

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

[End extract]

As I indicated at the beginning of this section, I am not an expert in this area of law, and therefore am not in a position to provide a more thorough analysis of the (multiple) breaches of human rights law involved in the offshore processing and resettlement of asylum seekers and refugees. I am confident, however, that there will be a number of submissions from human rights and refugee organisations in coming weeks that will do exactly that.

Nevertheless, I felt obliged to include this issue in my submission, given both the severity of the human rights breaches involved, and because of their particular impact on LGBTI asylum seekers and refugees, whose only ‘crime’ is to have sought the protection of our Government.

In conclusion, I wish to thank the Law Reform Commission again for the opportunity to provide this submission, and consequently to raise issues of concern for LGBTI people, namely the absence of anti-vilification protection in Commonwealth law, the breach of our right to non-discrimination because of religious exemptions in the Sex Discrimination Act, and the mistreatment of asylum seekers and refugees, including LGBTI refugees, by the Commonwealth Government.

I look forward to these issues being addressed in the inquiry’s Final Report, to be released by the end of 2015.

Sincerely

Alastair Lawrie

[1] Full submission at: https://alastairlawrie.net/2014/10/27/submission-to-rights-responsibilities-2014-consultation/

[2] 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.

[3] “Offensive behaviour because of race, colour or national or ethnic origin.

  • It is unlawful for a person to an act, otherwise than in private, if:
  • the act is reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate another person or a group of people; and
  • the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.”

[4] Full submission at: https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/

[5] 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.

[6] 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 adherents of that religion.”

[7] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services.

[8] “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…”

[9] My letter to Labor Immigrations Ministers, the Hon Chris Bowen and the Hon Brendan O’Connor from 2012 and 2013: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/

[10] My letter to then Immigration Minister the Hon Scott Morrison from February 2014: https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

Submission to Australian Human Rights Commission Sexual Orientation, Gender Identity and Intersex (SOGII) Rights Consultation

One of my favourite campaigns of recent times – It Gets Better – performs a valuable role, letting vulnerable LGBTI youth know that, while the homophobia, biphobia, transphobia and intersexphobia they may be experiencing is awful, for most of them, it will get better. I emphasise the word most here because we should always remember that it does not get better for everyone.

Meanwhile, as the LGBTI movement itself ‘ages’, many of us are increasingly celebrating the past, and reflecting on significant community milestones (such as last year’s 30th anniversary of the decriminalisation of male homosexuality in NSW, or the 40th anniversary of Sydney’s Gay & Lesbian Mardi Gras which is now only three years away). But, while absolutely necessary, looking backwards should never obscure the challenges that remain ahead.

This consultation, including an examination of legislation, policies and practices by government(s) that unduly restrict sexual orientation, gender identity and intersex rights, provides an opportunity to highlight some of the major obstacles which continue to prevent LGBTI Australians achieving full equality. In this submission, I will concentrate on six such areas:

  1. Involuntary or coerced sterilisation of intersex children

These unjustified practices – surgeries performed with the aim of ‘normalising’ intersex children according to the expectations of their parents, their doctors, and/or society at large, so that they conform to an exclusionary man/woman binary model of sex – are human rights abuses, plain and simple.

Obviously done without the child’s consent, such practices can involve sterilisation, as well as other ‘cosmetic’ (ie unnecessary), largely irreversible surgery on genitalia to make their bodies fit within the idea of what a man or woman ‘should’ be, ignoring the individual involved and their fundamental rights to bodily integrity, and personal autonomy.

That these practices continue in 2015 is abhorrent – and the fact the Commonwealth Government has yet to formally respond to the Senate’s 2013 Report into this issue (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) is, or at least should be, a scandal.

  1. Restrictions on the rights of transgender people

Another group within the LGBTI community whose rights continue to trail those whose identities are based on sexual orientation (lesbian, gay and bisexual people) are transgender Australians.

This includes the fact there continue to be ‘out-of-pocket’, in many cases quite significant, expenses for medical support for trans* people simply to affirm their gender identity. This is a denial of their human rights – access to trans* surgeries and related medical services should not be restricted by the capacity to pay, but instead should be fully publicly-subsidised through Medicare.

The ongoing requirement that married transgender Australians must divorce their spouses in order for their gender identity to be legally recognised is also a fundamental breach of their rights, and must end.

  1. Processing and resettlement of LGBTI refugees in countries which criminalise homosexuality

Australian Governments, of both persuasions, are guilty of violating the human rights of LGBTI refugees. These are people who are (often) fleeing persecution on the basis of their sexual orientation, gender identity or intersex status, and seeking our protection.

Australia’s response? To detain them, indefinitely, in inhumane prison camps on Nauru and Manus Island. For many, while detained they are at risk of prosecution under the laws of Papua New Guinea and/or Nauru, both of which continue to criminalise male-male intercourse. Even after they are found to be refugees, they are then ‘resettled’ in these countries, in effect exposing people who have fled persecution to potentially more persecution.

While I believe the offshore processing and resettlement of all refugees is unjust, it should be recognised it has a disproportionately negative impact on LGBTI refugees.

  1. Denial of the right of LGBTI students to an inclusive education

It is encouraging that greater numbers of young LGBTI people feel comfortable in disclosing their status at an earlier age – and for some, that they attend genuinely inclusive schools. However, this inclusion is by no means universal.

For example, the recently developed national Health & Physical Education curriculum does not even include the words lesbian, gay or bisexual, and does not guarantee students will be taught comprehensive sexual health education (even omitting the term HIV). This is a massive failure to ensure all students learn vital information that is relevant to their health.

Similarly, while the national Safe Schools Program is a welcome initiative to counter homophobia and bullying, participation in the program is optional, with most schools (and even some entire jurisdictions) opting out. The right to attend school free of discrimination should not depend on a student’s geographic location, or their parent/s’ choice of school.

Finally, religious exceptions to anti-discrimination legislation (in all jurisdictions outside Tasmania), mean many LGBTI students are at risk of discrimination, by their school, simply for being who they are.

  1. Limitations on anti-discrimination protections

Students are not the only LGBTI individuals let down by Australia’s current anti-discrimination framework. These same religious exceptions mean that, in most jurisdictions, LGBTI people can be discriminated against in a wide range of areas of public life, both as employees and people accessing services, in education, health, community services and (as employees) in aged care.

The attributes which are protected under anti-discrimination law also vary widely, with intersex people only truly protected under Commonwealth and Tasmanian law, different definitions of transgender (including extremely narrow protections in Western Australian legislation), and NSW excluding bisexual people altogether.

Finally, only four jurisdictions have vilification protections for (some) members of the LGBTI community – with no Commonwealth LGBTI equivalent of section 18C of the Racial Discrimination Act.

  1. Ongoing lack of marriage equality

I include this not because I consider it as important as the issues listed above, but simply as someone who has been engaged to be married for more than five years – and has no idea how much longer he will have to wait to exercise the same rights as cisgender heterosexual couples, with the only difference being who I love. Marriage discrimination is wrong, it is unjust, and it must go.

This submission is by no means comprehensive – there are a variety of other issues which I have excluded due to arbitrary word length restrictions (including mental health issues, anti-LGBTI violence, and discrimination against rainbow families – with my partner and I able to adopt in Sydney, but not Melbourne or Brisbane).

In conclusion, while it does get better, and over time, it most certainly has got better, there are still many ways in which the rights of LGBTI Australians continue to be denied – and about which we, as LGBTI advocates and activists, should remain angry, and most importantly, take action.

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

Human Rights Commissioner Tim Wilson, who is leading the consultation on SOGII Rights

NB Public submissions to the AHRC SOGII Rights consultation close on Friday 6 February. For more details, head to: <https://www.humanrights.gov.au/sogii-rights

For more information on some of the topics listed above, see my previous posts on:

– Submission to Involuntary and Coerced Sterilisation of Intersex People Senate Inquiry <https://alastairlawrie.net/2013/07/01/submission-to-involuntary-and-coerced-sterilisation-senate-inquiry/

– Letter to Scott Morrison About Treatment of LGBTI Asylum-Seekers and Refugees Sent to Manus Island <https://alastairlawrie.net/2014/02/02/letter-to-scott-morrison-about-treatment-of-lgbti-asylum-seekers-and-refugees-sent-to-manus-island-png/

– Letter to Minister Pyne Calling for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion <https://alastairlawrie.net/2014/12/09/letter-to-minister-pyne-calling-for-coag-to-reject-health-physical-education-curriculum-due-to-ongoing-lgbti-exclusion/

– The Last Major Battle for Gay & Lesbian Legal Equality in Australia Won’t be about Marriage <https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/  and

– Bill Shorten, Will you Lead on Marriage Equality? <https://alastairlawrie.net/2015/01/24/bill-shorten-will-you-lead-on-marriage-equality/