Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

Posted on April 24, 2014 by Alastair Lawrie

The following is my submission to the Attorney-General’s Department’s Review of the Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft (aka the Bill to significantly limit the scope of racial vilification protections under the Racial Discrimination Act 1975).

Submissions close on Wednesday 30 April, and more details can be found here: <http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx

I strongly encourage you to make a submission, and include in it the call for the Commonwealth to focus on expanding protections for the benefit of all lesbian, gay, bisexual, transgender and intersex Australians, rather than limiting the operation of s18C for one Melbourne-based News Ltd columnist. Thanks.

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit

BARTON ACT 2600

s18cconsultation@ag.gov.au

Thursday 24 April 2014

To whom it may concern,

SUBMISSION ON RACIAL VILIFICATION AMENDMENTS

Thank you for the opportunity to make a submission on the proposed changes to the racial vilification provisions of the Racial Discrimination Act 1975, as contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

For the reasons explained below, I do not support the replacement of existing sections 18B, 18C, 18D and 18E with the new clauses of the Exposure Draft Bill.

However, I do believe that significant changes should be made to vilification provisions in Commonwealth law: namely, that vilification protections should be expanded to cover sexual orientation, gender identity and intersex status.

The absence of such protections leaves lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians vulnerable to the same types of adverse public conduct experienced by people of different racial backgrounds, but without recourse to the same complaint resolution mechanisms.

I will now turn to these two issues – the proposed reforms, and the case for introducing LGBTI vilification protections – in more detail.

Proposed Reforms to Section 18C

In considering any potential reforms to section 18C of the Racial Discrimination Act 1975, it is useful to start at the particular sub-section which features in most debate. Sub-section 18C(1)(a) makes it “unlawful for a person to do 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.”

I am of the view that the drafting of this sub-section is probably not ideal, and, arguably, is too broad in terms of the types of conduct that at least theoretically could be captured. I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).

However, it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended. And even if that test is satisfied, any proposed reforms to the law should be an improvement, and not worsen any potential harm.

Turning to the question of whether the drafting of section 18C has directly led to, or caused, any significant problems, I am not convinced that it has. Racial vilification protections under the Racial Discrimination Act 1975 appear to be widely supported by the community, and, for the most part, appear to be working well, both with the oversight of the Australian Human Rights Commission and in the Courts.

There is, of course, one case which is frequently cited as necessitating change to section 18C, and its related provisions, and that is the case of Eatock v Bolt [2011] FCA 1103.

Even ignoring the old legal maxim that hard cases make bad law (“Hard cases, it has frequently been observed, are apt to introduce bad law”, from Judge Rolfe in Winterbottom v Wright in 1842), it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.

In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.

Even if the argument that change was, indeed, necessary was accepted, I do not support that changes proposed in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

I believe that the replacement of ‘offend, insult, humiliate or intimidate’ with to vilify (defined as “to incite hatred against a person or a group of persons”) or to intimidate (meaning “to cause fear of physical harm; to a person; to the property of a person; or to the members of a group of persons”), would arbitrarily and unduly limit the effectiveness of these protections.

I agree with the Australian Human Rights Commission, in their statement of Tuesday 25 March 2014, that: “the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”

I also agree with the Australian Human Rights Commission in their concerns about the breadth of the exemptions proposed in new clause (4). As the Commission notes “[t]his provision is so broad it is difficult to see any circumstances in public that these protections would apply.”

This is at least in part because the previous limitations of section 18D – that words or conduct must be done “reasonably and good faith” to be exempted – have been removed, again without a clear explanation or motivation. In my opinion, the proposals contained in the Exposure Draft Bill would not improve the operation of racial vilification protections generally, but instead have the capacity to make things substantially worse.

Overall, while I concede that the current drafting of section 18C is not ‘ideal’, I do not believe that there are sufficient problems in practice for it to be amended. I also strongly oppose the replacement of sections 18B, 18C, 18D and 18E of the current Racial Discrimination Act 1975, with the clauses contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

Recommendation 1. The Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft should not be introduced into or passed by the Commonwealth Parliament.

Need to expand vilification protections to cover sexual orientation, gender identity and intersex status

While I do not believe a case has been made to reform the racial vilification provisions of the Racial Discrimination Act 1975, I do believe there is a strong case for expanding vilification provisions under Commonwealth law to offer additional protection to LGBTI Australians.

In a similar way to their ongoing problems with race, some extreme elements within Australian society continue to demonstrate their difficulty in accepting people, and treating them equally, irrespective of sexual orientation, gender identity or intersex status.

Both groups – Australians of diverse racial backgrounds, and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

Significantly, while LGBTI Australians finally achieved anti-discrimination protections under Commonwealth law in 2013 (a mere 38 years after the passage of the Racial Discrimination Act), the Sex Discrimination Act amendments did not include protections from homophobic, biphobic, transphobic and anti-intersex vilification. Unlike people of diverse races, LGBTI people still cannot launch complaints about vilification under Commonwealth law.

There is no philosophical or conceptual reason why this should be the case – both are vulnerable groups, subject to vilification against which they deserve to be protected.

The vilification of LGBTI people can take many forms. A 2003 NSW Attorney-General’s Report found that, in the previous 12 months, 56% of gay men and lesbians had been subject to one or more forms of homophobic abuse, harassment or violence.

This violence can also be extreme – as demonstrated by the disturbingly high number of gay men violently murdered in Sydney during the 1980s and 1990s, but whose tragic deaths are only now being properly investigated.

In terms of vilification in public debate, there are almost too many examples of homophobia, biphobia, transphobia and anti-intersex discrimination to choose from (and certainly enough to hold an annual event ‘celebrating’ the worst of these comments in a range of different areas of public life, aka The GLORIAs).

One notorious example from recent years was the homophobic comment of a religious figure, addressing a ‘National Marriage Day’ rally outside Parliament House in 2012, who said “I’m convinced that homosexuals (re)produces (sic) themselves by molesting children.”

Unfortunately, heading inside Parliament House, the tenor of public debate is sometimes not much better. Over the past 12 years we have seen Senators argue that allowing two men or two women to marry could lead to humans having sex with animals, arguing that enacting marriage equality would potentially result in another ‘Stolen Generations’, and abusing parliamentary privilege to smear an openly-gay High Court Justice with unfounded allegations of paedophilia (apparently solely because of his homosexuality).

This is not to say that all, or even any, of those comments would necessarily qualify as vilification under an equivalent provision to section 18C, but, the fact those comments are able to be made in our National Parliament provides a small insight into the type of abuse and vitriol which continues in other forums, day-in, day-out, which are not subject to the same levels of scrutiny.

That includes street-level harassment and abuse which my fiancé Steven and I, like many thousands of other LGBTI Australians, experience all-too-frequently. Anyone who is ‘visibly’ identifiable as lesbian, gay, bisexual, transgender or intersex, including non-LGBTI people who are perceived as being LGBTI by others, and anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that being or expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much, much worse.

Of course, the introduction of s18C-style protections on the basis of sexual orientation, gender identity and intersex status will not automatically lead to a reduction in such abuse, but it will allow for people to contest the most egregious examples of homophobic, biphobic, transphobic and anti-intersex vilification in public life.

Over time, the introduction of vilification protections for LGBTI Australians, on top of the recently passed anti-discrimination laws, would help to send a strong signal to the wider community that such conduct was no longer tolerated.

The impetus for sending such a signal can be found in figures which show that lesbian, gay, bisexual, transgender and intersex Australians continue to experience disproportionately high rates of mental health issues, including depression, attempted suicide and suicide.

This problem is especially pronounced amongst younger LGBTI people, with young same-sex attracted people estimated to be 6 times more likely to attempt suicide than their heterosexual counterparts (source: National LGBTI Health Alliance). Young people’s experience of discrimination and homophobia has been found to play a key role in this huge, and sadly persisting, health disparity.

Not only is public vilification in the form of homophobia, biphobia, transphobia and anti-intersex discrimination wrong in and of itself, it has serious consequences, including in negative mental health outcomes for LGBTI people.

I believe that anti-LGBTI vilification must be prohibited under the Sex Discrimination Act, in the same way that racial vilification was in 1995 when the Racial Hatred Act amended the Racial Discrimination Act, and that it should be done as soon as possible.

Recommendation 2. The Sex Discrimination Act 1984 should be amended to prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

Obviously, there are other potential attributes which could also be aided by the introduction of vilification protections, including those grounds which already have Commonwealth anti-discrimination laws (sex, disability and age), but, as I am not an expert in any of those issues, I am not in a position to argue for or against their inclusion in this submission.

Nevertheless, I strongly believe that these questions – whether vilification protections should be expanded, and which additional groups they should cover – are the ones which should be occupying the mind of our Commonwealth Attorney-General, and indeed all MPs, rather than working out how to restrict the protections offered by the racial vilification provisions contained in the Racial Discrimination Act 1975.

I sincerely hope that this submission assists in helping to turn that conversation around, and that we, as a community, start to focus on enhancing instead of undermining human rights.

Thank you for taking these comments into consideration. Should you require clarification or further information, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

Submission on Review of NSW Surrogacy Act 2010

Posted on April 23, 2014 by Alastair Lawrie

The NSW Attorney-General’s Department is currently reviewing the Surrogacy Act 2010, legislation which allowed equal access to altruistic surrogacy within NSW, but made a criminal offence, with a penalty of to 2 years’ imprisonment, of entering into commercial surrogacy arrangements both within NSW and overseas.

Submissions are due by 30 April (next Wednesday), and full details about the review can be found here: <http://www.lpclrd.lawlink.nsw.gov.au/lpclrd/lpclrd_consultation/lpclrd_stat_reviews.html?s=1810621881

As with the NHMRC review of the Ethical Guidelines re Assisted Reproductive Technology, this subject matter is complicated, and I am sure that some people reading this blog will disagree with some of my conclusions (particularly re commercial surrogacy). if that’s the case, then I encourage you to leave a comment below and/or write your own submission.

The Director,

Justice Policy

Department of Attorney General and Justice

GPO Box 6

SYDNEY NSW 2001

justice.policy@agd.nsw.gov.au

Wednesday 23 April

Dear Director,

SUBMISSION RE REVIEW OF SURROGACY ACT 2010

Thank you for the opportunity to provide my personal submission in response to the review of the NSW Surrogacy Act 2010.

As suggested by the terms of reference, this submission is separated into two parts: the first examines whether the policy objectives of the Act remain valid, while the second considers whether the terms of the Act remain appropriate for securing those objectives.

Part A: Do the policy objectives of the Surrogacy Act 2010 remain valid?

The review outlines that the policy objectives of the Surrogacy Act 2010 are to:

Protect the interests of children born as a result of surrogacy arrangements;
Provide legal certainty for parties to surrogacy arrangements, and
Prevent the commercialisation of human reproduction.

Overall, I believe that the first two of these policy objectives remain valid, while the third should be replaced with the policy objective “To prevent the exploitation of people for the purposes of human reproduction”. I also believe that an additional policy objective should be added: “To recognise and support diversity in family structures and relationships.”

Protect the interests of children born as a result of surrogacy arrangements

As with likely all other people making submissions to this review, I strongly support the retention of this policy objective. I also agree with the inclusion of this objective as the primary Guiding Principle in section 3 of the Act: “[t]his Act is to be administered by reference to the principle that, in relation to any surrogacy arrangement, the best interests of the child of the surrogacy arrangement are paramount.”

I note that the best interests of children born through surrogacy are protected and supported by the equal treatment of all people, irrespective of sexual orientation, gender identity and intersex status, because, as all reputable research has shown, none of these characteristics are relevant in determining whether an individual or couple will be a good, caring and loving parent(s).

The Surrogacy Act 2010 should be commended for not drawing any distinctions on the basis of these attributes, and the non-discriminatory nature of its operative provisions should be retained.

However, the role of the Act in affirming the diversity of family structures and relationships that already exist in NSW could be strengthened by the elevation of a principle reflecting this reality in a new stand-alone policy objective.

Such a possibility was considered during the second reading speech debate in 2010[1], as well as in the Standing Committee on Law and Justice’s 2009 Report entitled ‘Legislation in Altruistic Surrogacy’, which helped to inform development of the Act.

I believe that a new policy objective – namely, “To recognise and support diversity in family structures and relationships” – should be added to the Act to highlight the non-discriminatory approach of the legislation and the fact that all people can be good parents, irrespective of sexual orientation, gender identity or intersex status.

Recommendation 1: A new policy objective should be added to the Surrogacy Act 2010– “To recognise and support diversity in family structures and relationships.”

Provide legal certainty for parties to surrogacy arrangements

Not only do I believe that this policy objective remains valid, but I also believe that the Act, and its framework for transfer of parentage of children born through surrogacy arrangements, is largely successful in achieving this outcome. Therefore, this policy objective should be retained.

Prevent the commercialisation of human reproduction

I do not support this policy objective, and believe it should be replaced with a new policy objective: “To prevent the exploitation of people for the purposes of human reproduction.”

By way of explanation, I believe the inclusion of the current policy objective is, to some degree, an attempt to address the issue of potential reproductive exploitation (especially of women), but that it confuses the means (a ban on commercial reproduction, including surrogacy) with the ends (preventing reproductive exploitation). It is the ends that should be reflected in the policy objectives rather than the means.

Further, I believe that the question whether commercial surrogacy is and always will be wrong, in every possible circumstance, is complex, and one about which different people, well-motivated and passionate about human rights and welfare, can and do reach different conclusions. However, one conclusion about which I hope all people would agree is that people, and especially women, should not be exploited for their reproductive capabilities.

Personally, I do not feel confident in saying that every possible arrangement, between a birth mother and the intended parent(s) of the child, is inherently wrong – and wrong to the point where it should be criminalised – simply because of the exchange of money in addition to those which cover the birth mother’s costs.

Nor do I necessarily believe that the nature of a surrogacy arrangement automatically and fundamentally changes, from one which is recognised and supported in legislation (altruistic surrogacy), to one which is not only prohibited but attracts a maximum penalty of two years’ imprisonment (commercial surrogacy), because of the exchange of that money.

Of course, I am cognisant of the fact that the introduction of financial ‘rewards’ to the already ethically-complex area of surrogacy arrangements carries with it significant risks. Chief among those are the risk that people, and especially the women acting as surrogate mothers, will be exploited for their reproductive capabilities.

However, I also believe there are other ways in which people can be exploited for their reproductive capabilities (such as through emotional and/or familial pressure). Indeed, the Surrogacy Act 2010 already contains a range of safeguards that have nothing to do with commercialisation, but are directed at preventing exploitation (for example, the requirement for an independent counsellor’s report to verify that the birth mother has an “understanding of the social and psychological implications of the making of a parentage order” and “whether any consent given by the birth parent or parents to the parentage order is informed consent, freely and voluntarily given” – subsections 17(3)(a) and (f)).

In my view, it is the prevention of exploitation that should be the policy objective in this area, rather than commercialisation per se. This new objective should then be used to guide whether and, if so, how commercial surrogacy arrangements should be allowed (see discussion in part B).

Recommendation 2: The policy objective “To prevent the commercialisation of human reproduction” should be replaced with a new policy objective “To prevent the exploitation of people for the purposes of human reproduction.”

Part B: Do the terms of the Surrogacy Act 2010 remain appropriate to secure those objectives?

For the most part, the provisions of the Surrogacy Act 2010 work well in protecting the interests of children born as a result of surrogacy arrangements and in providing legal certainty for parties to surrogacy arrangements. As indicated in Part A, I also believe that the non-discriminatory way in which the legislation has been drafted could be enhanced further by the addition of a new policy objective (“To recognise and support diversity in family structures and relationships”).

However, I believe that there is a clear divergence in determining whether the provisions of the Act remain appropriate depending on which of the two alternative policy objectives discussed in Part A (‘prevent commercialisation’ or ‘prevent exploitation’) is adopted.

For example, if the over-arching goal of the legislation remains to prevent commercialisation in any form, then the ban on commercial surrogacy in section 8 (which includes a maximum penalty of 1000 penalty units or 2 years’ imprisonment, or both, for those people who are in contravention) would clearly still be appropriate.

The prohibition on commercial surrogacy arrangements entered into overseas by people ordinarily resident or domicile in NSW, as outlined in the ‘geographical nexus for offences’ provision in section 11, would also remain a valid attempt to secure the objective of preventing commercialisation.

However, if the policy objective of preventing commercialisation is actually seen as a means to the end of preventing exploitation (which I believe it is), or indeed, if it were to be replaced with the explicit policy objective of preventing exploitation of people and especially women for their reproductive capabilities, then we are forced to consider how these provisions are currently operating, and their impact on people both in NSW and overseas.

I suspect that, even before the Surrogacy Act 2010 was introduced, there were few, if any, commercial surrogacy arrangements entered into within NSW, and that this situation would remain the case today.

I also believe that there is evidence that the number of overseas commercial surrogacy arrangements was growing at the time of the legislation’s passage, and that, since its introduction, the number of these arrangements entered into by people resident or domiciled in NSW has likely decreased. This could be seen as evidence that the ban has reduced exploitation.

However, I also believe that there is sufficient anecdotal and other evidence that some overseas commercial surrogacy arrangements entered into by people living in NSW continue. The overwhelming desire for some individuals or couples to become parents, together with the low numbers of ‘stranger’-child adoptions, both within Australia and internationally, means that this option continues to be at or near the top of the list of possible routes to parenthood. The criminal penalty attached to section 8 is unlikely to deter such people.

The result of this is that, while some individuals or couples may choose (or have the money to choose) commercial surrogacy arrangements in countries with strong regulation and low economic disadvantage, which at least reduces the possibility of exploitation, others opt for (or are financially restricted to choosing) countries with little or no regulation, as well as higher economic inequality or disadvantage than Australia, thereby significantly increasing the risks of exploitation of the women acting as surrogate mothers.

Thus, while the ban on commercial surrogacy may be effective in preventing the exploitation of women within Australia, I believe it has to be acknowledged that it is not entirely successful in preventing the potential for exploitation of women in other countries.

In this context, we are forced to consider whether there are alternative approaches to the question of commercial surrogacy that could lower the overall level of exploitation of all women.

At least one option, which should at least be considered, would be legalising commercial surrogacy arrangements within NSW, and placing them within a tightly regulated system with the ability to be overseen by appropriate domestic agencies, while at the same time continuing the prohibition on commercial surrogacy arrangements entered into overseas.

This framework – domestic legalisation and overseas ban – arguably may have the best potential to reduce the overall level of reproductive exploitation of women.

However, it is difficult to consider the respective advantages or disadvantages of such a framework in the absence of a proposal outlining exactly how a domestic commercial surrogacy scheme could operate. I believe it is nearly impossible to compare the known harms of surrogate exploitation in (some) overseas countries, with the hypothetical risks of exploitation under an unknown domestic commercial surrogacy scheme.

For this reason, I believe that the NSW Law Reform Commission or similar body should be given the responsibility to consider this issue, but, rather than recommend whether commercial surrogacy should be legalised or not, they should instead design what a ‘model’ domestic commercial surrogacy scheme would look like, with the guiding principle of minimising the risks of exploitation.

This model could then be used as the basis for a genuine and sustained debate, in the community, the media and amongst politicians, about whether the current system (a blanket ban), or a system which allows for tightly-regulated domestic commercial surrogacy, is the best way to reduce the risk of exploitation of all women, and not just those living in NSW.

Of course, it may be that it is impossible to design a domestic commercial surrogacy scheme that sufficiently reduces the risks of exploitation of people (and especially women) for their reproductive capabilities.

It may also be that, after this process, the majority of people still believe that the ‘commercialisation’ of human reproduction is always wrong, and that commercial surrogacy should always be illegal.

However, given we are aware that at least some overseas commercial surrogacy arrangements continue to occur, and appear likely to continue well into the future, I believe it is incumbent upon us to consider whether there are any alternatives to the current regulatory approach and, after considering those alternatives, decide what is the most appropriate way “To prevent the exploitation of people for the purpose of human reproduction.”

Recommendation 3: The NSW Law Reform Commission, or similar body, should be asked to design a ‘model’ framework for domestic commercial surrogacy arrangements, with a guiding principle to minimise the risks of the exploitation of people for the purpose of human reproduction.

Should you require additional information, or to clarify any of the recommendations included in this submission, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

[1]http://www.parliament.nsw.gov.au/prod/parlment/NSWBills.nsf/0/71c024816771a264ca2577c100195683/$FILE/LC%2010210.pdf

Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology

Posted on April 20, 2014 by Alastair Lawrie

The Australian National Health and Medical Research Council is currently reviewing Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

These Guidelines provide advice on a wide range of matters, including whether and if so in what circumstances someone can refuse to provide an ART procedure, and whether someone can direct that their gametes or embryos may only be used (or not used) by particular ethnic or social groups. They also currently include a prohibition on commercial surrogacy.

I have made a submission to the inquiry – which I reproduce below – which, as you can tell, largely argues for LGBTI equality, but also adopts a position on commercial surrogacy which I know some might find controversial (and if people do disagree with me I encourage you to leave a comment below).

I believe as many people as possible should make a submission to the review, because it should be informed by voices from across the community, including the LGBTI community (and that includes people who disagree with me on commercial surrogacy too). The details for the review, and how to make a submission, can be found at the following link: <http://consultations.nhmrc.gov.au/public_consultations/assisted_reproductive The closing date is Wednesday 30 April (ie ten days away), so time to get cracking.

Thanks for reading, and as always, let me know what you think.

Project Officer – Assisted Reproductive Technology

Health & Research Ethics Section

National Health and Medical Research Council

GPO Box 1421

CANBERRA ACT 2601

ethics@nhmrc.gov.au

Dear Project Officer,

Review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007

Thank you for the opportunity to make a submission on the review of Part B of the Ethical Guidelines for the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007.

I do so as an ordinary member of the public, without any special qualification or expertise in assisted reproductive technology (ART), but with a strong interest and passionate commitment to the legal and substantive equality of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians.

I do not propose to answer all 60 of the questions contained in the public consultation document on the NHMRC website, but will instead focus my comments on those issues which are most relevant to LGBTI equality, as well as to the issue of commercial surrogacy.

In particular, I would like to make comments about the following five areas:

Conscientious Objections
Transmissible Infections
Unknown but Directed Donations
Selection for Particular Characteristics
Commercial Surrogacy

Conscientious Objections

My first concern is about the breadth of the description of conscientious objections in paragraph 5.9 (page 12 of the consultation document). Specifically, this paragraph provides that “[i]f any member of staff or student expresses a conscientious objection to the treatment of any individual patient or to any ART procedures conducted by the clinic, the clinic must allow him or her to withdraw from involvement in the procedure or program to which he or she objects.”

While I note that the provision of ART services may, for some staff members of students, raise ethical concerns, I believe that the drafting of this provision is far too broad, and allows for conscientious objections even when such objections are themselves unethical.

For example, the provision as drafted would allow an individual member of staff to refuse to provide ART services to a person on the basis of that person’s sexual orientation, gender identity or intersex status (if that person believed that ART services should not be provided to such persons) or on the basis of relationship status (if the person believed that only ‘opposite-sex’ married persons should have access to ART).

With the increasing acceptance of LGBTI Australians (as evidenced by the long-overdue introduction of federal anti-discrimination protections in 2013) and of different relationship statuses (including the 2008 reforms to federal de facto relationship recognition), none of these objections – while potentially genuinely held by the individual – should be allowed as the basis for refusing to provide ART services. Nor should conscientious objections on the basis of any of sexual orientation, gender identity, intersex status or relationship status be recognized as acceptable or ‘ethical’ in the context of these Guidelines.

If paragraph 5.9 is to be retained in the Ethical Guidelines, I recommend that it be amended to specifically note that conscientious objections do not apply, and are not accepted, with respect to the sexual orientation, gender identity, intersex status or relationship status of the intended recipient of the ART procedure or service.

Transmissible Infections

My second concern also relates to the breadth of provisions contained in the Guidelines, in this case paragraph 6.4 (titled Minimise risk of infection, on page 19 of the consultation document). Specifically, sub-paragraph of this section provides that “[c]linics should not accept donations from people at an increased risk of transmissible infections”.

While I acknowledge the importance of reducing the risk of transmission of communicable diseases, I believe that the wording of this sub-paragraph allows for potential misinterpretation or misapplication to prohibit donations from all people from a particular demographic group who may be over-represented in notifications for a transmissible infection (for example, men who have sex with men, who are currently disproportionately represented in HIV notifications in Australia).

This level of prohibition – at demographic group level – would ignore the particular behaviours or characteristics of the individual, which in practice make that individual more or less susceptible to transmission.

My concern is this area is founded on the ongoing exclusion of all men who engage in same-sex sexual intercourse from donating blood, irrespective of their particular behaviours or characteristics and therefore actual risk.

It is my view that any risk assessment, if deemed necessary at all, should be performed at individual level, rather than demographic group, and that the Guidelines should make this differentiation explicit in this section.

I would also note that the requirement contained in sub-paragraph 6.4.2 (that “[a]ll donors of gametes should undergo appropriate infection control surveillance”) is possibly all that is necessary to be included in this section in any event. If the individual concerned is being tested for relevant infections, and appropriate monitoring is being undertaken, then sub-paragraph 6.4.1 may in fact already be redundant.

Unknown but directed donations

This concern relates to the paragraphs addressing ‘unknown but directed donation’ of both gametes (paragraph 6.9, at page 20 of the consultation document) and embryos (paragraph 7.6, at page 29).

I am strongly opposed to the recognition, even under Ethical Guidelines, of any ability of donors to restrict the use of their gametes or embryos to “certain individuals, such as those from a particular ethnic or social group.”

This creates the possibility of donors restricting the use of their gametes or embryos to people of a particular sexual orientation or gender identity (for example, to cisgender heterosexual people), and therefore to excluding other people on the basis of their sexual orientation, gender identity or intersex status. It also appears that this would allow for similar distinctions to be made on the basis of relationship status.

I note that paragraph 6.9 highlights that “[t]his type of directed donation is illegal in some jurisdictions.” I believe that it should be made illegal in all jurisdictions. The principle of non-discrimination, including non-discrimination against LGBTI people, should trump any ability of potential donors to discriminate against people on the basis of sexual orientation, gender identity, intersex status of relationship status.

Even where ‘unknown but directed donations’ are not made illegal under law, the placing of such restrictions on the donation of gametes or embryos should not be respected through these Guidelines (as they currently are in both paragraphs 6.9 and 7.6, which conclude by saying “[i]n the remaining states and territories, clinics must not use the gametes/embryos in a way that is contrary to the wishes of the donor.”)

At this point I note that there are two options to implement such a recommendation – and that is to either override any expressed discriminatory preference of the donor and provide the gametes/embryos to others irrespective of whatever qualification was sought, or to reject all such donations and ensure that their gametes/embryos are not used. I am comfortable with either outcome, as they both satisfy the principles of equality/non-discrimination, although I highlight the fact that the former would allow more gametes/embryos to be used by individuals or couples who may require them.

Selection for Particular Characteristics

Paragraph 11.1 of the Ethical Guidelines (headed Do not select sex for non-medical purposes, on page 48 of the consultation document) states that “sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition”. I support the inclusion of this principle in the Guidelines.

However, I note that, in future, there exists the potential that research may create the possibility of determining the likely (or at least increased predisposition towards a specific) sexual orientation or gender identity of a child born as a result of assisted reproductive technology. I also note that, for certain groups within the umbrella term intersex (such as congenital adrenal hyperplasia, and androgen insensitivity syndrome) these diagnostic tests are already a possibility, while additional groups within intersex may be able to be determined in the future.

Given that the incredible diversity of sexual orientation (including heterosexuality, homosexuality and bisexuality), gender identity (recognizing those who are cisgender and those who are transgender) and sex (including intersex status) of human life is natural, and that all people, including LGBTI people, are equal, and should be treated as such, I believe the Guidelines should also include a prohibition on the selection of reproductive material on the basis of (likely or prospective) sexual orientation, gender identity or intersex status.

While for sexual orientation and gender identity, this scenario – the screening of embryos for such characteristics – may ultimately prove to be some years or even decades into the future, I believe that it is vital to lay down this signpost, that such discrimination will not be tolerated, now, thereby setting a precedent for if and when it is ever required. In the case of intersex status, such guidelines are necessary now, to support and recognize sex diversity.

Commercial Surrogacy

Finally, I note that paragraph 13.1 of the Ethical Guidelines (on page 52 of the consultation document) states that “[i]t is ethically unacceptable to undertake or facilitate surrogate pregnancy for commercial purposes.”

While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with such a broad-sweeping and all-encompassing statement against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, especially in developing countries and/or countries which do not closely regulate surrogacy arrangements.

It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation.

I do not expect the review process considering these Guidelines to come to a conclusion about these difficult matters. Nor am I willing, or in a position, to even attempt to suggest what a domestic commercial surrogacy scheme would look like.

However, I do believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).

I believe that such a debate, informed not just by a practical proposal but also by the real-world consequences of the current ban, is vital before we can truly come to grips with and possibly resolve whether a permanent ban on commercial surrogacy is ethical or otherwise.

Thank you for taking my submission into consideration.

Sincerely,

Alastair Lawrie

20 April 2014

Submission to National Curriculum Review re Health & Physical Education Curriculum

Posted on March 13, 2014 by Alastair Lawrie

The following is my submission to the review of the national curriculum, initiated by the Commonwealth Minister for Education, the Hon Christopher Pyne MP at the end of 2013. Given the appointment of Mr Kevin Donnelly to co-chair this review, I am not confident that all, or indeed, any of the concerns below will be listened to. But the inclusion of LGBTI students and content in our schools system is so important that I believe it is still worth a shot.

National Curriculum Review Submission

Thursday 13 March 2014

Thank you for the opportunity to make a submission on the development of the national school curriculum.

In this submission I will limit my comments to the development of the national Health & Physical Education (HPE) curriculum. In particular, I will be commenting on whether the HPE curriculum as drafted addresses the needs of, and genuinely includes, lesbian, gay, bisexual, transgender and intersex (LGBTI) students.

I have previously made submissions on the initial public consultation draft of the HPE curriculum, released in December 2012 (a copy of my submission is provided at <https://alastairlawrie.net/2013/04/11/submission-on-national-health-physical-education-curriculum/ ), and on the revised draft released for limited public consultation in June and July 2013 (see <https://alastairlawrie.net/2013/07/30/submission-on-redrafted-national-health-physical-education-curriculum/ ).

In both of those submissions I was strongly critical of the fact that the draft HPE curriculums did not genuinely attempt to include LGBTI students (including omission of the words lesbian, gay or bisexual), did not provide adequate sexual health education, and did not provide adequate information regarding HIV and other Blood Borne Viruses (BBVs), including viral hepatitis.

A second revised draft of the curriculum was prepared by the Australian Curriculum, Assessment and Reporting Authority (ACARA) ahead of the meeting of Commonwealth, State and Territory Education Ministers in November 2013. It has been reported that Education Ministers did not agree to the second revised draft, but instead simply noted its development in anticipation of this review.

Nevertheless, the second revised draft HPE curriculum was published in February 2014 on the Australian Curriculum website (www.australiancurriculum.edu.au).

I have analysed the second revised draft, and sincerely hope that my comments below convey the seriousness of my concerns about the ongoing exclusion of LGBTI students and content, and the potential negative health impacts that this exclusion will have over the short, medium and long-term.

The current version of the national Health & Physical Education curriculum does nothing to put all ‘Students First’, which I understand to be the guiding principle of this review. In fact, by continuing to exclude some students, and marginalising content which is relevant to their needs, the draft HPE curriculum places lesbian, gay, bisexual, transgender and intersex students last.

If the HPE curriculum were to be implemented as it currently stands, it would actively contribute to, and reinforce, the disproportionate rates of mental health problems, depression and, most tragically, suicide, which continue to affect young LGBTI people.

By failing to include detailed BBV and sexual health education, the HPE curriculum would also leave young people, and gay and bisexual men and trans* people specifically, exposed to unnecessary risk of transmission of HIV and other infections.

And by not ensuring that all students are provided with information that is relevant to their own needs and personal circumstances, the HPE curriculum will undermine the fundamental human right to health of the next generation of young LGBTI people. This right must be respected, and not denied to people merely on the basis of other peoples’ attitudes towards their sexual orientation, gender identity or intersex status.

This review is an(other) opportunity to address some of the serious shortcomings of the draft HPE curriculum. Please seize this opportunity and recommend that the curriculum be amended to ensure LGBTI students are included, with content that is relevant and targeted to meet their needs, including around sexual health and BBV education.

The remainder of this submission will look at five key areas of the draft HPE curriculum. They are:

Terminology
Student Diversity
Bullying & Discrimination
Sexual Health, and
HIV and other BBVs.

Terminology

One significant problem that has consistently appeared through the initial draft, revised draft and now second revised draft of the Health & Physical Education curriculum is that of terminology. Specifically, the HPE curriculum has either completely excluded terms that are essential for young people to learn, or included terms or definitions that are not appropriate in the circumstances.

The biggest problem in terminology, featured in all three drafts, has been the failure to even include the words lesbian, gay or bisexual. Despite these being the most common forms of identification for people whose sexual orientation is ‘not heterosexual’, these terms have never appeared in any version of this document.

In fact, the ongoing refusal to name lesbians, gay men and bisexuals – despite the fact that students will have heard these terms regularly amongst their families and friends, in culture and in broader society, and that an increasing number of young people, including students, will be using these terms to describe themselves – is almost bizarre in its stubbornness to deny reality.

Even if there may be a reason for sometimes using the umbrella term same-sex attracted, to ensure that people who may be sexually attracted to people of their own sex but who do not use the terms lesbian, gay or bisexual to identify themselves are included, there is absolutely no justification for not naming lesbian, gay and bisexual identities within the HPE curriculum (for example, by using the description “same-sex attracted, including lesbian, gay and bisexual people”). The failure to do so contributes to the marginalisation of lesbian, gay and bisexual young people.

On a related issue, the HPE curriculum as drafted appears to use the incredibly broad, and arguably poorly-defined, term ‘sexuality’ at multiple points in the document when ‘sexual orientation’ would be more appropriate.

For example, the Glossary defines ‘sexuality’ as “[a] central aspect of being human throughout life. Sexuality encompasses sex, gender identities and roles, sexual orientation, pleasure, intimacy and reproduction and is influenced by the interaction of biological, psychological, social, economic, political, cultural, ethical, legal, historical, religious and spiritual factors”. The breadth of this definition makes some of the references to sexuality in the curriculum either too vague to be practicable, or even unintelligible.

The more widely-accepted term ‘sexual orientation’, which the curriculum does not define, and only appears to use once (in the definition of ‘sexuality’, reproduced above), would be more constructive, especially when references are made to differences or diversity in ‘sexuality’. Using the term sexual orientation would also more clearly include different orientations (including lesbian, gay and bisexual) than using the term sexuality alone.

On a positive note, there have been some improvements in references to, and definitions for, diversity in gender identity, including transgender people (which at least is included as part of the Glossary definition of ‘gender diverse’).

There have also been improvements in terms of the recognition of intersex people, who are now at least referenced in the statement on student diversity, and provided with a separate definition in the Glossary (where previously it had been erroneously included within the definition of gender diverse).

Nevertheless, defining a term in the Glossary and then using it once in the main text of the curriculum itself (and even then only as part of an ‘aspirational statement’ at the beginning of the document) is not sufficient to guarantee that the needs of transgender and intersex students are met.

In summary, the HPE curriculum needs to be significantly amended, such that it actually includes the terms lesbian, gay and bisexual, and that it adequately includes information about these sexual orientations, as well as transgender and intersex people, throughout the document.

Student Diversity

As discussed above, the HPE curriculum includes a statement on ‘Student Diversity’ at the beginning of the document, and this includes two paragraphs on ‘Same-sex attracted and gender-diverse students’.

I welcome some of the changes that have been made to this section between the revised draft and the second revised draft. In particular, these paragraphs now make a variety of positive statements (including that “it is crucial to acknowledge and affirm diversity in relation to sexuality and gender’” – noting my view, expressed earlier, that the use of ‘sexual orientation’ would be preferable here – while talking about “inclusive… programs” and the needs of “all students”).

Indeed, the last sentence of the section is particularly encouraging where it notes that being inclusive and relevant is “particularly important when teaching about reproduction and sexual health, to ensure that the needs of all students are met, including students who may be same-sex attracted, gender diverse or intersex”.

However, these positive developments continue to be undermined by the preceding statements that the HPE curriculum “is designed to allow schools flexibility to meet the learning needs of all young people, particularly in the health focus area of relationships and sexuality” (emphasis added) and that “[a]ll schools communities have a responsibility when implementing the HPE curriculum to ensure that teaching is inclusive and relevant to the lived experiences of all students” (emphasis added).

Both of these statements appear to leave the decision whether, and in what way, schools will include LGBTI students and content up to the schools themselves. In the first instance, whether LGBTI students and content are included at all is too important to be left to the ‘flexibility’ of the school itself.

Second, and far more importantly, the reference to ‘lived experiences’ could be argued to leave a loophole for schools to assert that, unless students first identify themselves or disclose their status as LGBTI, they do not exist in the eyes of the school and therefore the school does not have a responsibility to include them or content relevant to their needs.

This approach – apparently leaving it up to students to ‘come out’ before they are entitled to receive vital health information, despite the fact that doing so can, in many Australian jurisdictions, lead to the potential expulsion of that student, let alone other personal consequences for the student with their family or friends – fundamentally undermines the concept of health, and health education, as a universal human right.

And, while this appears to be a somewhat negative and narrow interpretation of these paragraphs, it is a realistic one given that a statement which appeared in the initial consultation draft, which stated that “same-sex attracted and gender diverse students exist in all Australian schools” was abandoned in the revised draft, and, despite arguments put forward for its re-inclusion was not included in the second revised draft.

In my view, whether to include LGBTI students and content should not be an issue of ‘flexibility’ between different schools. Instead, there should be a minimum level of LGBTI education provided to every student in every school – and, after all, isn’t a national minimum standard what the curriculum should be aiming to achieve?

This would be further supported by the re-inclusion of a statement which notes that “lesbian, gay, bisexual, transgender and intersex students exists across all Australian schools, and all schools must provide LGBTI-specific content to each and every student”.

Bullying & Discrimination

One area where there has been significant improvement from the initial draft and revised draft to the second revised draft has been an increase in content that attempts to redress anti-LGBTI bullying and discrimination.

In particular, I welcome the commitment in the Glossary definition of ‘discrimination’ that “[t]he types of discrimination that students must learn about include racial, sex and gender discrimination, homophobia and transphobia” (emphasis added).

I also welcome the increased content in year band descriptions that explicitly includes learning about homophobia, in years 7/8 and 9/10.

However, there are still a range of improvements that could be made to ensure that the curriculum adequately informs students about the need to stamp out discrimination and bullying of LGBTI students.

First, it is important to note that ‘homophobia’ does not necessarily include all forms of discrimination or prejudice against LGBTI people. The inclusion of transphobia in the Glossary is valuable, however, it should also be included in the year band descriptions to ensure that it is not overlooked. Both the Glossary and year band descriptions should also include biphobia and anti-intersex discrimination, which should not automatically be subsumed within a catch-all category of ‘homophobia’.

Second, discussion of homophobia, biphobia, transphobia and anti-intersex discrimination should not be left until years 7/8 to be introduced into the HPE curriculum, but should be commenced in years 5/6 alongside education about racism.

This is vital not only because anti-LGBTI bullying and discrimination can occur from a young age (including all-too-common insults like “that’s so gay”), but also because some young lesbian, gay and bisexual students are coming out earlier and earlier (and deserve to be protected), while some trans* and intersex youth may have disclosed their status earlier still.

Third, in the year band description for years 9/10, heading “[c]ritique behaviours and contextual factors that influence health and wellbeing of their communities” instead of using the term “such as… homophobia” (emphasis added) the curriculum should say “including homophobia, biphobia, transphobia and anti-intersex prejudice” to ensure that schools cannot opt out of providing this content.

Fourth, I would highlight the inconsistency in providing information about homophobia and transphobia to students, which as I have indicated above is a positive development, with the ongoing exclusion of the words lesbian, gay and bisexual from the document in its entirety, and the exclusion of the words transgender and intersex from the year band descriptions (which provide the main content of the curriculum).

It would seem nigh on impossible to appropriately teach students about the negatives of homophobia and transphobia (together with biphobia and anti-intersex discrimination, which should be added) at the same time that lesbian, gay, bisexual, transgender and intersex students are either not explicitly mentioned in the year band descriptions, or not even mentioned at all in the entire curriculum.

Sexual health

One of the key aspects of any Health & Physical Education curriculum must be the provision of comprehensive, inclusive and up-to-date education around sexual health.

Unfortunately, none of the three drafts of the HPE curriculum released to date have provided even a bare minimum of information about the best practices to support sexual health, not just for LGBTI people, but also for cisgender heterosexual students.

While the Glossary does at least provide a definition of ‘sexual health’ (“[a] state of physical, mental and social wellbeing in relation to sexuality. It requires a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of having pleasurable and safe sexual experiences, free of coercion, discrimination and violence”), there is either limited or no support to implement this in practice in the year band descriptions.

In the year bands 5/6 and 7/8, which represent key ages for sexual health education, there is some discussion of physical changes surrounding puberty, and even changing feelings and attractions, but there does not appear to be any unit or module where students are taught the ‘nitty-gritty’ of sexual health, including discussion of different sexual practices, sexually transmitted infections (STIs) and the best ways to reduce the risks of STI transmission (including but not limited to condom usage).

I continue to find it extraordinary that the national minimum standard for Health & Physical Education to students does not even refer to STIs or condoms.

One of the arguments that has been mounted in defence of this omission is that this level of detail is not necessary in the curriculum, and that it will be covered as different jurisdictions and school systems implement their own syllabus.

I completely disagree. Given how fundamental sexual health is to the health and wellbeing of young people, surely the national HPE curriculum is the perfect place to guarantee that all students, rights across the country and irrespective of whether they attend government or non-government schools, receive the best possible information.

In addition, the reticence to provide any real detail around sexual health in the curriculum, on the basis that ‘specifics’ are not required, looks more like evasion when compared with some of the other sections of the curriculum which are, in fact, quite detailed (for example, in the year 5/6 band description it suggests “experimenting with different music genres such as Indian Bhangra music when performing creative dances”).

If something as specific as Indian Bhangra music can be named in the HPE document, then there must also be space for detailed discussion of the importance of sexual health, different sexual practices, STIs and condoms.

HIV and other BBVs

My fifth and final concern is related to the fourth, and that is the complete exclusion of HIV, and other BBVs like viral hepatitis, from the curriculum.

As I have written previously, I simply cannot understand that a national Health & Physical Education curriculum, developed and written in the years 2012 and 2013, does not even refer to HIV, hepatitis B and hepatitis C, which together directly affect almost half a million Australians.

It is vital that students learn about these BBVs, and most importantly how to reduce the risks of their transmission (for example, condom usage, hepatitis B vaccination, not sharing injecting equipment and safe tattooing and body art practices). If we do not provide this information, at the age that young people need it most, then we are failing in our duty of care towards the next generation.

The ongoing exclusion of HIV in particular looks odd (or, to be less charitable, short-sighted and ill-conceived). More than 30 years into the HIV epidemic in Australia, and with Melbourne hosting the 20^th International AIDS Conference in July 2014, the proposed national minimum standard for Health & Physical Education curriculum does not even bother to mention it.

This is far from the ‘best practice’ approach that Australia adopted to the HIV epidemic in the 1980s. A best practice approach to the HPE curriculum now would, as a minimum, ensure that all students learn about HIV, hepatitis B and hepatitis C, and the best ways to reduce the risks of transmission.

Conclusion

As I have outlined above, I have serious concerns about the second revised draft Health & Physical Education curriculum, including its continued exclusion of LGBTI students and content relevant to their needs, as well as minimal or non-existent education regarding sexual health and HIV and other BBVs.

As reviewers of the national curriculum, I believe it is your responsibility to remedy these significant shortcomings, and ensure that the final HPE curriculum adopted is one that provides for the best possible health education and outcomes for all students, including lesbian, gay, bisexual, transgender and intersex students.

That is my definition of Students First.

Sincerely,

Alastair Lawrie

Letter to Prime Minister Abbott re Intercountry Adoption by Same-Sex Couples

Posted on March 8, 2014 by Alastair Lawrie

The Hon Tony Abbott MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Cc Dr Ian Watt

Secretary

Department of Prime Minister & Cabinet

PO Box 6500

CANBERRA ACT 2600

Saturday March 8 2014

Dear Prime Minister

INTER-COUNTRY ADOPTIONS BY SAME-SEX COUPLES

I am writing regarding the issue of inter-country adoptions. Specifically, I call on you to ensure that the processes governing inter-country adoptions treat all couples equally, regardless of sexual orientation, gender identity or intersex status.

I note that you announced in December 2013 that the Department of Premier and Cabinet would be investigating the issue of inter-country adoptions, reporting to you on ways the processes governing inter-country adoptions can be streamlined ahead of the Council of Australian Governments (COAG) meeting, now scheduled for Friday 2 May in Canberra.

I also note recent reports about the potential for new arrangements for recognising adoptions by Australians with respect to children from Taiwan and South Korea.

However, I am unaware of any reports about work underway to ensure that all bilateral and, where relevant, multilateral, agreements concerning adoption entered into by Australia recognise the equal rights of all couples, including same-sex couples, to adopt.

There is no legitimate reason to prevent couples that may include lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals from adopting.

In fact, the most recent report on the issue of same-sex parenting, commissioned by the Australian Institute of Family Studies, reaffirmed independent research over the past decade in finding that “there is now strong evidence that same-sex parented families constitute supportive environments in which to raise children.”

The report – Same-Sex Parented Families in Australia by Dr Deborah Dempsey (December 2013) – further confirmed that “children in such families do as well emotionally, socially and educationally as their peers from heterosexual couple families.”

Speaking about the report to the Sydney Morning Herald in February 2014, author Dr Dempsey said “[i]t’s not the family structure that matters so much as the kind of care; that children are loved, and are taken care of.” In practice, same-sex couples are just as capable of providing for the best interests of the child as opposite-sex couples.

Given these and other research results, I seek your commitment to ensure there is no discrimination against same-sex couples contained in any inter-country adoption agreement which Australia signs.

On a related issue, one of the administrative barriers to efficient inter-country adoption processes must be the variety of different, often conflicting, adoption criteria that operate in Australian states and territories.

For example, while my fiancé Steven and I would likely be eligible to adopt in Sydney, we would not be eligible to adopt were we to relocate to Melbourne. I doubt that our suitability as parents would differ simply because we moved 1000km to the South.

As before, there is no legitimate reason to prevent couples that include LGBTI individuals from adopting, and that must include within and between Australian jurisdictions.

The report which you have commissioned and will be presenting to the COAG meeting in May is an ideal opportunity for you to call on the states and territories to adopt uniform adoption laws, in particular to ensure that all Australian states and territories allow all couples to adopt, irrespective of sexual orientation, gender identity or intersex status.

This would be a benefit not just to the administrative efficiency of Australia’s inter-country adoption processes, but also to the equal rights and status of lesbian, gay, bisexual, transgender and intersex Australians.

Finally, I note during the week reports of disagreement within the Coalition partyroom on the subject of single and same-sex couple parenting. Specifically, it was reported that Senator Cory Bernardi expressed his support for Minister Kevin Andrews’ defence of so-called ‘traditional families’.

In response, Liberal MP for Herbert, Ewen Jones, defended families headed by single people, and same-sex couples, saying that what was more important was that children were loved, not what gender their parents were. Mr Jones later told Fairfax Radio “I think it’s the quality of the role model, male or female, not the sexuality of the parents that maters” – a sentiment similar to that expressed by Dr Dempsey, above.

It was also reported that you responded to the debate by saying “[w]e need to be as supportive of people as possible, regardless of their circumstances.”

Taking you at your word, I sincerely hope that you will be supportive of all Australian couples, including same-sex or otherwise LGBTI-inclusive couples, having the same rights to adopt children from other countries.

You have the chance to demonstrate this support through the review of inter-country adoption which you have commissioned, and through your advocacy at the upcoming COAG meeting which will discuss this issue. I and other same-sex couples around the country will be watching which approach you take.

Thank you in for your consideration of this correspondence.

Sincerely,

Alastair Lawrie

The last major battle for gay & lesbian legal equality in Australia won’t be about marriage

Posted on February 26, 2014 by Alastair Lawrie

[Updated March 4th 2015]

This Saturday, the 37^th annual Sydney Gay & Lesbian Mardi Gras Parade will work its way up Oxford St with its now traditional mix of politics, colour and movement, and above all, pride. Pride in who we are, pride in our community, and pride in what we have managed to achieve.

Because life is unarguably better for the vast majority of Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) population in 2015 than it has ever been before. And that indeed is something to be proud about.

Following the first Mardi Gras on 24 June 1978, many of the barriers to legal equality have been removed. NSW passed anti-discrimination laws in 1982, followed by the decriminalisation of gay sex in 1984. Same-sex couples have since achieved de facto relationship recognition, and there is now equal access to assisted reproductive technology and adoption in most Australian jurisdictions.

It is likely that one area where legal rights have yet to be achieved will, once again, be the dominant theme of many of the more politically-oriented floats in this year’s parade – the Australian Parliament’s ongoing refusal to recognise marriage equality between all couples.

As someone who is engaged to be married, and who has been for more than four years but is currently prohibited from doing so, I understand why marriage equality is an issue which arouses such intense passion, and an admirable level of commitment from many activists around Australia.

But marriage equality is also something which most of us know is probably, some might say almost inevitably, going to be achieved at some point in the next five, at most 10, years.

When that day comes, when the first couples legally married under federal law have shared their vows and celebrated their commitments to each other in front of their families and friends, there will still be a major outstanding issue of legal inequality confronting lesbian, gay, bisexual and transgender (LGBT) Australians.

It appears just as inevitable that, long after those couples dance their waltzes and cut their wedding cakes, the anti-discrimination protections which are offered to LGBT Australians under most state and federal laws will continue to be seriously undermined by the wide-ranging exceptions which are offered to religious organisations (NB Intersex is not included here because religious exemptions under the Commonwealth Sex Discrimination Act 1984 do not apply on those grounds).

These exceptions allow religious schools to actively discriminate against LGBT teachers and students. Religious hospitals and community welfare organisations can utilise these loopholes to discriminate against LGBT employees, as well as patients and clients. And, while the historic federal reforms passed via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 do not allow religious-operated aged care facilities to discriminate against LGBT people accessing their services, LGBT people can still be denied employment in those facilities simply because of who they are.

All of these services – education and health, community welfare and aged care – are located firmly and squarely in the public sphere, and address some of the most fundamental human needs in life. It is these same characteristics, that they are public services meeting public needs, that are used to justify the substantial amounts of public funding which subsidise the religious organisations running them, money which comes from all taxpayers, religious and non-religious, LGBTI and non-LGBTI alike.

Yet, despite operating in the public sphere, almost always using public money, these organisations are granted exceptions from the same legal obligations that are imposed on any other group, namely the responsibility not to discriminate on the basis of sexual orientation and gender identity.

The justification for these ‘special rights’? Basically, that the ability to discriminate against lesbian, gay, bisexual and transgender people is so fundamental to the exercise of religious freedom that it cannot be limited.

Note that we are not here talking about who is appointed as office-holders, including ministers, within a religion itself, what a particular religion may or may not believe in terms of morality, how religious ceremonies are undertaken, or even who can attend a religious ceremony. These are things that are central to religious freedom, and most people would not advocate the imposition of limits on the ability of religious organisations to discriminate in these areas.

Instead, some religious organisations (and we must say some, because not all groups hold these views) believe that they should have the right to fire a gay teacher, to expel a bisexual school student, to refuse to employ a lesbian aged care worker, or to deny services to someone who is transgender, even when all of the above is clearly done in the public sphere.

This is a much more substantive denial of rights than simply being denied access to marriage rites. Religious exceptions to anti-discrimination laws can affect LGBT people in multiple areas of their lives, including times and places when they are at their most vulnerable. In practical terms, I believe it is religious exceptions and not marriage inequality that is the biggest battle left to be won for full gay and lesbian legal equality.

It is also a battle that looks set to be fought more ferociously than that over marriage equality. Some of the largest religious organisations in the country don’t just support these exceptions, they are prepared to wage cultural war to defend them.

The Wesley Mission recently spent eight years, and went all the way to the NSW Court of Appeal, defending their right to deny allowing a male same-sex couple to become foster carers to children in need. Wesley did so on the basis that: “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal” (OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

Further, they submitted that: “Wesley Mission’s tradition views a monogamous heterosexual partnership in marriage as the ideal family role model for the vulnerable and sometimes damaged children we foster. Other understandings fall short of that norm.” And finally that “[t]he proposition that we should provide a framework for children to be cared for and nurtured within the context of a homosexual lifestyle is fundamentally unacceptable to our evangelical teaching and practice.”

The irony, some might say hypocrisy, of these statements is that, in the same case, Wesley Mission admitted that single people could themselves become foster carers through their service. Apparently they believed that two dads or two mums had less to offer foster children than one.

The net effect of the Wesley Mission case was to provide judicial confirmation of the breadth of the religious exceptions offered under section 56(d) of the NSW Anti-Discrimination Act 1977. That section reads: “[n]othing in this Act affects: any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

In short, if you are lesbian, gay, bisexual or transgender, then you have no legal right or expectation to be treated fairly and without discrimination by a religious employer, or religious-operated service, in NSW.

It is no surprise then that, when the Federal Parliament was considering the Exposure Draft Human Rights and Anti-Discrimination (HRAD) Bill 2012, the precursor of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, key NSW religious organisations would argue for religious exceptions to be established in Commonwealth law, too.

What is perhaps surprising is that some churches made submissions to the Senate inquiry considering the HRAD Bill that these exceptions do not go far enough.

The Standing Committee of the Synod of the Anglican Church Diocese of Sydney, and the Catholic Archdiocese of Sydney (including the Diocese of Parramatta and the Catholic Education Commission of NSW), both argued that the concept of exceptions was problematic, and that the right to discriminate against LGBT people should instead be re-contextualised as a positive right.

From the Anglican submission: “[w]hile exceptions are necessary, casting the protection of these rights in a wholly negative manner, in the form of ‘exceptions’, does not do justice to their importance. It suggests they are merely to be tolerated rather than positively recognised and upheld as legitimate and important in themselves.”

Meanwhile, in a ‘Diedre Chambers’ style coincidence, the Catholic submission also wrote: “the terminology of “exceptions” is problematic and fails to acknowledge that the right of freedom of religion is a fundamental human right, which the Commonwealth government is obliged to protect under international law. In our view, the terminology of “exceptions” should be replaced with the terminology of “protections”. Using the terminology of “protections” would recognise that conduct which is deemed not to be unlawful because it is covered by an exception related to religion is in fact lawful because it accords with the fundamental human right of freedom of religion” [emphasis in original].

Both submissions also go further than concerns surrounding terminology to argue that the exceptions which are offered to religious organisations should also be available to individuals – that is, that their personal beliefs should allow them to discriminate, even in their professional lives and when not working for a religious organisation.

For example, the Anglican submission recommended that “[a]n employee should not be required by their employer to undertake particular tasks or provide services in a particular context that are contrary to the employee’s genuinely held religious convictions where this is reasonable.”

Thankfully, that style of exception, which is located somewhere on the bottom half of the slippery slope down to the abhorrent type of laws currently attracting controversy in several US states, was not included in the final Commonwealth legislation. But in making that submission, the Anglican Church of Sydney has made clear the direction it wants anti-discrimination, or more accurately, pro-discrimination, laws to head [As an aside, if it had been passed then, when marriage equality does eventually become a reality, such provisions would have allowed individual employees to refuse to sell wedding cakes, or serve as wedding photographers, merely because of the sexual orientation and/or gender identities of the couples involved].

And they will fight equally hard to ensure that the current framework of exceptions applies in as many contexts as possible. The eventual removal of these exceptions in terms of people accessing aged care services was strongly resisted from some religious bodies, even if their arguments for doing so were quite weak (the Anglican submission on the HRAD Bill suggested that “[i]t may be unsettling to these communities to have residents who do not share their beliefs, values and ethos facility on matters of sexual practice”).

They have been more successful in fighting against recent proposed changes to NSW law that were simply attempting to remove the right of religious and other private schools to discriminate against gay, lesbian and transgender students (NB Bisexuality is shamefully still not a protected attribute in the NSW Anti-Discrimination Act 1977). Alex Greenwich’s amendments are currently on hold, at least in part because of the influence of the two major churches in the Parliament.

As we have seen, some religious organisations have demonstrated over the past 10 years that they are prepared to fight, by whatever means necessary (through the courts, in parliamentary inquiries, by lobbying parliamentarians directly and in public debate) to maintain and even extend the reach of these exceptions.

While this may seem to some like a theoretical (or even theological) debate, they are not doing so because they want the law to recognise abstract rights – they are engaged in this battle because they want the retain the ability to actively discriminate against LGBT people in real life.

Sadly, there are too many stories of this happening, of religious exceptions causing real-world harm to LGBT people. In the lead-up to Mr Greenwich’s Bill being introduced, several lesbian and gay students came forward with stories of being sent to the counsellor’s office for being “sick” (that is, for being gay), of being called disgusting and a disgrace – by a teacher no less – and threatened with exclusion from senior school, and of being told not to talk about their sexuality in addition to being excluded from school events (source: “Discrimination has no place in schools” Alex Greenwich, Sydney Morning Herald, 19 September, 2013).

Not forgetting the recent incident where the Sacred Heart Primary School at Broken Hill, which falls within the Wilcannia-Forbes Catholic Diocese, rejected a young girl’s kindergarten application simply because her parents were two women (source: “Same-sex enrolment row prompts call for law change”, ABC News Online, 15 December 2011).

Of course, these are just some of the stories that we are aware about. Most people who are discriminated against by religious organisations, either directly or indirectly, do not speak up, because they are aware that the discriminatory actions of those bodies are entirely lawful, or because they fear retribution from those organisations if they do so.

Which brings me back to the Mardi Gras Parade. While for many of us the decision to participate on Saturday is an easy one, choosing to celebrate pride in who we are and as part of our community, for others the decision whether to be visible or not in this manner can be significantly more complicated.

For people already engaged with religious organisations in different ways, or whose profession may involve applying for jobs with them (for example, more than a third of schools in Australia are religious, an even higher proportion amongst secondary schools), choosing to be ‘out’ through Mardi Gras can have serious repercussions.

Some people can and do have a legitimate fear that being identified as lesbian, gay, bisexual or transgender could result in them being fired, or being refused employment in the first place, in being expelled from school (or seriously mistreated while there), or being denied necessary services. Neither state nor federal anti-discrimination law would currently protect them in these circumstances.

In this respect, despite all of the progress in law reform since the first Mardi Gras parade was held back in 1978, there is still an incredibly long way to go. That is one of the reasons why we must ensure that Mardi Gras, as well as being a celebration of pride, also continues to serve its role as a political protest.

It is also why me must continue to campaign for equality, and to fight for our rights, including the right not to be discriminated against. Given the scale of the challenge involved in removing these unjust religious exceptions, and how hard (some) religious organisations will struggle to retain them (and therefore to maintain their position of privilege in society), we should be aware that it is not a fight that we will win in months. It will take several years, at least – if not decades.

But it is a battle we must wage nonetheless. Because, if LGBT Australians are ever to be truly equal under the law, then the special exceptions granted to religious organisations under Commonwealth, state and territory laws must end.

Explanatory notes: I have attempted to be clear in this post about when I am speaking about gay and lesbian, or LGBT, or LGBTI, because sometimes the law affects these groups in different ways (and please accept my apologies if I have made some errors in this respect). For example, removing religious exceptions cannot be the last major battle for bisexual legal equality – especially if they are not included in the NSW Anti-Discrimination Act in the first place.

Equally, I am not in a position to argue that religious exceptions are the biggest legal issue confronting transgender Australians when uniform positive recognition of gender identity is not yet a reality. And, while intersex people are not subject to religious exceptions under the Sex Discrimination Act, I also wouldn’t describe this issue as more important than banning involuntary medical sterilisation, something I have written about previously (see link: https://alastairlawrie.net/2013/12/25/no-3-senate-report-on-involuntary-or-coerced-sterilisation-of-intersex-people-in-australia/).

Finally, while I wrote in the second paragraph that, for the vast majority of LGBTI Australians, life is unarguably better than it has ever been before, I do not wish to underestimate the ongoing problems of mental illness, depression and suicide which affect many young LGBTI people, or indeed the plight of LGBTI asylum-seekers, who Australia continues to send to Nauru and Manus Island, PNG, for ‘processing and resettlement’.

One (more) final thing: if you liked this post, please consider sharing. Thanks, Alastair

No Homophobia, No Exceptions

Posted on February 7, 2014 by Alastair Lawrie

During the week, the NSW Gay & Lesbian Rights Lobby (which I am involved in as the Policy Working Group Chair), launched its No Homophobia, No Exceptions campaign, calling for the removal of religious exceptions to LGBTI anti-discrimination protections contained in the Commonwealth Sex Discrimination Act 1984 and the NSW Anti-Discrimination Act 1977.

This is an incredibly important campaign, given these exceptions will possibly be the last barriers to full LGBTI equality in Australia to fall, and a campaign which I am very proud to be involved in.

Now, while this blog, and the posts which I put up here, only ever reflect my personal views on things (ie in this blog I do not speak on behalf of the GLRL, or any other organisation), I would like to take the opportunity to put up a link to two other pages which form key parts of the No Homophobia, No Exceptions campaign.

The first is an op-ed I wrote for the Star Observer newspaper, outlining the reasons for the campaign, and calling for the LGBTI community to get involved. Link here: <http://www.starobserver.com.au/opinion/soapbox-opinion/no-homophobia-no-exceptions/117476

The second link is to a Change.org petition which asks people to support the campaign, by calling on Commonwealth Attorney-General, Senator the Hon George Brandis, and NSW Attorney-General, The Hon Greg Smith MP, to repeal these provisions.

If you support the campaign, and the principle that all people deserve to be treated equally in all areas of public life, irrespective of sexual orientation, gender identity or intersex status, then I strongly encourage you to sign. Link here: http://www.change.org/en-AU/petitions/senator-hon-george-brandis-remove-religious-exceptions-from-anti-discrimination-laws

Thanks.

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

Posted on February 2, 2014 by Alastair Lawrie

UPDATE: Sunday 20 July 2014

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

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

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

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

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

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

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

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

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

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

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

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

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

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

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

Some quick thoughts on the above:

Even though we are more than a decade into our post-Tampa nightmare of refugee policy in Australia, it is still shocking to see people simply seeking asylum in Australia described, by government officials, as Illegal Maritime Arrivals (IMAs). And it is probably almost as shocking realising that the same government official doesn’t even need to spell out what an OPC is anymore, instead it is taken as a given.

While the letter acknowledges there is no mandatory reporting of homosexual activity under PNG law, it explicitly does not state that there is no reporting of homosexual activity to PNG Police, or refute the claim that asylum seekers have been told they will be reported if found to engage in such activity.

It is difficult to accept the statement that “[t]o assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met” from the same Government that is responsible for the death, in custody, of Reza Berati just over two weeks after I wrote my initial letter.

It is obviously welcome that, at least on paper, the Government claims it makes condoms available to asylum seekers on Manus Island – although whether they are made available in reality would be difficult to verify (given the shroud of secrecy surrounding, and lack of journalist access to, the detention facilities in PNG and Nauru).

The main problem remains however, and that is there is no firm commitment not to send LGBTI asylum seekers for ‘processing’ to countries which criminalise homosexuality, and no commitment that LGBTI refugees will not be permanently resettled in countries where they are liable to punishment merely for sexual intercourse.

The process outlined in the letter – that an asylum seeker must make a claim against the laws of PNG or Nauru prior to their transfer, is farcical given what we know about the current way asylum seekers are being assessed: while they are detained on navy or customs vessels, on the open sea, through a short interview (with as few as four questions by some reports) via teleconference to officials in mainland Australia. It is outrageous to suggest that the only way a gay asylum seeker can avoid being sent to another country which criminalises their sexual orientation is to declare their sexual orientation at short notice, whilst intimidated by naval or customs personnel (and potentially while intimidated by other asylum seekers, including possible family members), and to specifically claim protection against countries which they may not even be aware they are being taken to, and may not know criminalise homosexuality.

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

ORIGINAL LETTER

The Hon Scott Morrison MP

Minister for Immigration and Border Protection

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 2 February 2014

Dear Minister

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

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

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

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

Specifically, Amnesty International found that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I look forward to your response on this important issue.

Yours sincerely,

Alastair Lawrie

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

Letter to Minister Piccoli re Proud Schools

Posted on January 28, 2014 by Alastair Lawrie

UPDATE (Saturday 8 February): Yesterday, I received a response from the NSW Government to my letter about Proud Schools (below). It was not from the Minister, but rather from the Executive Director, Learning and Engagement, in the Department of Education and Communities.

In short, it appears that the NSW Government has completed its review of Proud Schools and on that basis has decided to abandon the Proud Schools pilot/model. Unfortunately, it does not appear as if the review of the Proud Schools pilot is going to be released.

Equally concerning, while the response talks about a “Wellbeing Framework for Education”, there appears to be very little detail about what this might entail. Given the homophobia, biphobia, transphobia and anti-intersex discrimination which continues to affect LGBTI students (a fact reinforced by the Growing Up Queer report, released yesterday), there will need to be a lot more information provided about this framework before it could be supported.

As an aside, I find it curious that in a letter about Proud Schools, and replying to a letter about Proud Schools/the needs of LGBTI students, the response does not refer to LGBTI students specifically, instead making generic statements about ‘all students’. Hmmm…

The full text of the letter:

Dear Mr Lawrie

I write in response to your email of 12 January 2014 to the Hon Adrian Piccoli MP, Minister for Education regarding the Proud Schools pilot. The Minister has asked me to respond on his behalf.

The Department of Education and Communities is committed to providing safe and supportive learning environments that respect and value diversity and that are free from all forms of violence, bullying, discrimination, harassment and vilification.

We know that learning outcomes are better where students are happy, safe and supported at school. We also know that when school communities work together real improvements in promoting understanding and reducing discrimination can be made.

From the Proud Schools pilot it has emerged that a ‘one size fits all’ approach will not be appropriate for a systemic school system.

Significant work is currently underway on developing a Wellbeing Framework for Education. This framework will provide schools with guidance and evidence informed practice to support all students within the context of their school and in consultation with their school communities. The subsequent development of any wellbeing materials will need to carefully balance the wellbeing of all young people.

Thank you for your email.

Yours sincerely

[NAME WITHHELD]

Executive Director, Learning and Engagement

5 February 2014

ORIGINAL POST Today (Tuesday 28 January) is the first official day of the school year for teachers across NSW. Tomorrow, students return to school for the first time in 2014. And yet, with teachers and students coming back, it is still unclear whether something else is returning to NSW schools this year – the Proud Schools program.

A three-year pilot of Proud Schools – which is designed to help schools include LGBTI students, and protect them from bullying – was due to be completed at the end of 2013. The pilot project was also subject to a formal review last year, to help determine whether it should be expanded, and if so in what form.

But, as far as I can tell, this review has not yet been released, and no announcement appears to have been made about the future of the Proud Schools program. Is the Proud Schools pilot being extended? Is the program being rolled out beyond the initial very small number of schools in which is began? Has Proud Schools been axed? If so, has it been replaced with another program aimed at serving the needs of LGBTI students in NSW?

Concerned about the lack of information, I wrote to the NSW Minister for Education, the Hon Adrian Piccoli, about this subject two weeks ago. Below is my letter to him (dated 12 January). I have yet to receive a response to this, but will update this post if I do.

Dear Minister

PROUD SCHOOLS/PROGRAMS FOR LGBTI STUDENTS

I am writing regarding the Proud Schools program, which has been piloted across a small number of NSW schools over the past three years (2011-2013).

I understand that the Proud Schools pilot was the subject of a review by the NSW Government during 2013, and that, following this review, the NSW Government was to make a decision about the long-term future of Proud Schools.

Has this review been finalised? If so, has a decision been taken by the NSW Government concerning the future of the Proud Schools program? If so, when will this decision, and the review upon which it was based, be made public?

I write because there are only two weeks left until the 2014 school year commences, and believe that it is important for schools, teachers and LGBTI students to have some certainty about the future of this program.

Even if the NSW Government decides not to continue with the specific Proud Schools initiative, it is vital that a program which supports the needs of LGBTI students is rolled out across NSW schools, not just in the small number that were involved in Proud Schools, but across the entire state.

This is because LGBTI students are subject to increased levels of bullying and harassment based on homophobia, bi-phobia, trans*-phobia and anti-intersex prejudice, experience higher rates of mental illness as a result of this discrimination, and are at risk of not receiving education that is inclusive of their needs.

I seek your assurance that you are giving this issue priority, and will have a program in place in NSW schools from the beginning of the 2014 school year.

I look forward to your response to this letter.

Yours sincerely

Alastair Lawrie

Letter to Minister Pyne re Health & Physical Education Curriculum and Appointment of Mr Kevin Donnelly

Posted on January 11, 2014 by Alastair Lawrie

UPDATE (Saturday 8 February): This week, I received a reply from Minister Pyne to my letter to him, on 11 January (see below), in which I requested that he sack Mr Kevin Donnelly from the national curriculum review because his homophobia made him unsuitable to be involved in any review of a Health & Physical Education curriculum.

In a somewhat unsurprising, but nevertheless extremely disappointing, response, Minister Pyne did not address any of the comments made by Mr Donnelly, nor deal with the problem that through his comments Mr Donnelly appears to be unable to oversee a HPE curriculum that serves the needs of all students, including lesbian, gay, bisexual, trans* and intersex (LGBTI) students.

So, while the issue of Mr Donnelly’s homophobia has received welcome public scrutiny, especially over the course of the past week, it seems Minister Pyne doesn’t really care about it – certainly not enough to actually respond to concerns which are put directly to him.

Which, sadly, makes me even more fearful of what the final HPE document will look like when it is released later in 2014.

Full text of Minister Pyne’s letter:

Dear Mr Lawrie

Thank you for your email of 11 January 2014 regarding the review of the Australian Curriculum.

As the Minister for Education, I am focussed on improving schools and student outcomes through proven policies and initiatives. Under our Students First approach, the Coalition Government is working with the states and territories on the priority areas of teacher quality, principal autonomy, parental engagement and strengthening our curriculum.

Over the past ten years, education outcomes in Australia have gone backwards, both relatively against other countries, but also in real terms. Some have identified that the reason for this is due to our curriculum not being robust enough.

I appointed Professor Ken Wiltshire AO and Dr Kevin Donnelly to review the curriculum to evaluate its robustness, impartiality and balance. Between them, Professor Wiltshire and Dr Donnelly have a tremendous amount of experience in not only the school education sector, but also in education curricula. I am confident that their considerable expertise will allow them to bring a balanced approach to this review process.

The reviewers are interested in hearing the views of parents and communities, educators and schools, and state and territory governments, to inform their analysis. This is an open public consultation process where the community are able to have their say.

I appreciate you taking the time to contact me to express your views. I encourage you to make a submission to the review. Comments will be accepted until Friday 28 February 2014. Information can be found at http://www.studentsfirst.gov.au/review-australian-curriculum.

Yours sincerely

Christopher Pyne MP

29 January 2014

ORIGINAL POST 11 January: Dear Minister Pyne

LGBTI INCLUSION IN NATIONAL HEALTH & PHYSICAL EDUCATION CURRICULUM AND APPOINTMENT OF MR KEVIN DONNELLY TO CURRICULUM REVIEW

I wrote to you in September 2013, following your appointment as Commonwealth Minister for Education, regarding the development of the National Health & Physical Education (HPE) curriculum by the Australian Curriculum, Assessment and Reporting Authority (ACARA).

In that letter, I raised serious concerns about the draft HPE curriculum, including both the initial draft released in December 2012, and revised draft, released in mid-2013, specifically:

That the draft HPE curriculum failed to include lesbian, gay, bisexual, transgender and intersex (LGBTI) students, and content relevant to their needs;
That the sexual health information provided in the draft HPE curriculum was grossly insufficient; and
That the draft HPE curriculum was inadequate because it failed to even mention HIV, or other blood borne viruses (like hepatitis B and C), let alone ensuring students received the vital education necessary to reduce future transmissions.

I note that, since that letter, the COAG Standing Council on School Education and Early Childhood (SCSEEC) met in Sydney on 29 November 2013. Significantly, that meeting did not endorse the draft HPE curriculum, but instead it was only ‘noted’. From the communiqué:

“The Standing Council today noted that ACARA has developed the Australian Curriculum content and achievement standards for … health and physical education … according to its current curriculum development processes.

Ministers noted that the Australian Government will be undertaking a review of the Australian Curriculum, and will bring forward recommendations from the review to the Standing Council in 2014.”

This means that there should be the opportunity for the Health & Physical Education curriculum to be improved as part of the overall review. In particular, there is now time for the HPE curriculum to be amended to specifically include LGBTI students and content, increased sexual health information and education about HIV and other BBVs.

Unfortunately, following your announcement yesterday, Friday 10 January 2014, of the two people entrusted with reviewing the curriculum, I have serious doubts that any improvements are now possible. Indeed, I am concerned that whatever amendments are made to the HPE curriculum will be entirely negative ones, and further contribute to the exclusion and marginalisation of LGBTI students in Australia.

This is because one of the people you have appointed, Mr Kevin Donnelly, has made sustained negative comments about the education needs of LGBTI students over the past decade.

For example, in 2004 Mr Donnelly is reported as saying that “[v]ery few parents would expect that it is the role of schools to teach children about the positive aspects of gay, lesbian and transgender sex lifestyles” and that “[f]orgotten is that many parents would consider the sexual practices of gays, lesbians and transgender individuals decidedly unnatural and that such groups have a greater risk in terms of transmitting STDs and AIDS” (source: Sydney Morning Herald, 3 May 2004, “Government staffer says new-age warriors waging culture wars in class”).

Mr Donnelly returned to similar themes the following year, criticising the Australian Education Union for arguing that “school curricula should “enhance understanding and acceptance of gay, lesbian, bisexual and transgender people.”” He went on to write “[f]orgotten is that many parents would consider the sexual practices of GLBT people unnatural and that most parents would prefer their children to form a relationship with somebody of the opposite sex. This is apart from the fact that many parents expect that it is their duty, not that of teachers and schools, to teach such sensitive matters” (source: News Weekly, 26 March 2005, “Teacher Unions Enforcing the Gender Agenda”).

In the same article, he wrote “it is also wrong to introduce students to sensitive sexual matters about which most parents might be concerned and that the wider community might fine unacceptable” in response to a lesbian teacher simply telling her students of her relationship.

Mr Donnelly’s views are not confined to last decade, either. In an article published on The Drum website on 6 December 2011 (“Marriage Equality: Secrets of a Successful Campaign”), he wrote:

“Such has been the cultural-left’s success in relation to gender issues that the so-called Melbourne Declaration, the blue print for Australian school education, argues that all school sectors, faith based, independent and government, must provide an education free of discrimination based on gender and sexual orientation.

A strict interpretation of the Melbourne Declaration is that religious schools will lose the freedom they currently have to discriminate in relation to who they enrol and who they employ. One also expects that the proposed national curriculum, in areas like health, will enforce a positive view of GLBT issues.”

Implicit in these comments is that private/religious schools should be able to discriminate against LGBTI students and teachers, and that the national curriculum need not include a positive approach to ‘GLBT issues’.

In short, over the past decade, Mr Donnelly has repeatedly argued against positive representations of LGBTI students and issues, has argued that same-sex relationships are ‘sensitive matters’ that should not be referred to in schools, and has on multiple occasions repeated the view, without condemnation, that “many parents would consider the sexual practices of GLBT people (decidedly) unnatural”.

As part of his role in reviewing the broader national curriculum, Mr Donnelly will have responsibility for reviewing the draft national HPE curriculum. Based on his public comments of the past decade, he is eminently unsuitable for this position. In my view, Mr Donnelly has amply demonstrated that he is incapable of reviewing, and redrafting, a national Health and Physical Education curriculum that meets the needs of all Australian students, not simply those who are cis-gender and heterosexual.

Given this evidence, the responsible course of action for you to take, as Commonwealth Minister for Education, would be to terminate his appointment. I urge you to do so.

Irrespective of what decision you take in relation to Mr Donnelly’s specific role, your announcement of the broader curriculum review on 10 January has confirmed that it is now your responsibility to ensure that the final Health and Physical Education curriculum is genuinely inclusive, and meets the needs of all students, including LGBTI students. This is a serious burden, and one that I sincerely hope you give serious attention to during 2014.

Thank you in advance for your consideration of the matters raised in this letter. I look forward to your reply.

Yours sincerely,

Alastair Lawrie

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

Tag Archives: LGBTI

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