13 Highs & Lows of 2013: No 13 (Alleged) Police Brutality at Sydney Mardi Gras

Posted on December 10, 2013 by Alastair Lawrie

As I did last year, I am going to end the year by writing about the highlights – and lowlights – of the last 12 months. As always, choosing the best and worst of the year is a subjective process, and reflects my own experiences as a cis-gender gay man, who engages in LGBTI advocacy, in Sydney. But I hope that the list I have selected is reflective of some of the major issues of 2013, at least in Australia anyway. If not, please feel free to tell me why I’m wrong in the comments section below.

No 13. (Alleged) Police Brutality at Sydney Mardi Gras

Let’s begin by remembering one of the true low-points of this year – the (alleged) actions of NSW Police officers which marred Australia’s, and one of the world’s, premier LGBTI events, the Sydney Mardi Gras, in February and March.

As we approach the end of the year, almost 2 million people, from right around the world, have watched the Youtube clip of the way Police officers treated Jamie Jackson on Oxford St on the night of the Mardi Gras Parade. (http://www.youtube.com/watch?v=wxtFtVfAeeE)

Others have read about the way long-term LGBTI activist Bryn Hutchinson was (allegedly) treated by NSW Police officers, also on Oxford St after the parade had finished. Now that all charges against Mr Hutchinson, and his sister Kate, have been dismissed by the courts, he has written about his experiences in the Star Observer. (http://www.starobserver.com.au/opinion/soapbox-opinion/my-terror-of-crossing-oxford-street-at-mardi-gras/113785)

But it is important to remember that it was not just these two isolated incidents that left a sour taste in the mouths of many after what is supposed to be a celebration of pride and diversity. Nor were instances of alleged Police brutality confined to the night of the Parade and Party, but instead occurred throughout the Mardi Gras Festival.

In fact, Sydney Mardi Gras and ACON received at least 58 complaints about the way people had been treated by NSW Police over the entire Mardi Gras season. These complaints included allegations of intimidation and aggression by Police on Oxford St after the Parade had finished, reports of homophobic language and behaviour at the main Party, of intimidation, violence, excessive physical force and coercion during drug operations at both the Harbour Party and main Party, and other aggressive and intimidating behaviour in LGBTI venues along Oxford St during the Festival.

Since March, Sydney Mardi Gras, ACON, the Inner City Legal Centre (ICLC) and the NSW Gay & Lesbian Rights Lobby (GLRL) have been attempting to work through these issues in consultation with the LGBTI community. They recently released an advocacy document outlining 12 recommendations to the NSW government, although, with just 2 months left til the 2014 season gets underway, it is currently unclear how many will be accepted by Premier Barry O’Farrell, Police Minister Michael Gallacher and others. (http://glrl.org.au/images/stories/Publications/20131115_policing_at_lgbti_events_and_venues.pdf)

What is likely is that NSW Police will be much better behaved – at least for the 2014 Mardi Gras Festival, Parade and Party. They will be told by their superiors that to repeat what happened this year would reflect badly on the Government (in the media), as well as potentially jeopardising the money that is brought into the NSW economy by Mardi Gras and associated events. They will also be keenly aware that all eyes will be on them come February and March 2014, to see if their poor behaviour is repeated (on camera).

Nevertheless, the real test will come in 2015, 2016 and beyond, when the immediate controversy has died down, media interest has waned, and the temptation will emerge for some elements of the Police (because it should always be remembered that not all Police act poorly) to slip back into the (alleged) intimidation and outright aggression of 2013.

If the majority of the Mardi Gras, ACON, ICLC and GLRL recommendations are adopted (especially recommendations 1-3), then we may see some positive long-term cultural changes within NSW Police, meaning that future Mardi Gras patrons may not suffer in the same way that Jamie, Bryn and others did this year.

But, in my opinion, the two best recommendations for helping to ensure that NSW Police are ‘well-behaved’ at future Mardi Gras events are perhaps the two that are least likely to be adopted by the NSW Government.

The first, recommendation 7, calls for an end to drug detection dog operations. The evidence against the use of sniffer dogs has piled up since legislation was first passed authorising their use, without warrants, in NSW public places in 2001. The 2006 Ombudsman’s Report was damning in terms of their lack of effectiveness, as well as the risks, including health risks, of their ongoing use. In 2011, just 20% of drug dog indications resulted in Police actually finding drugs on the person searched.

The 2013 Mardi Gras experience, especially for attendees of the Harbour Party, simply confirmed the vagueness of what constitutes ‘reasonable grounds’, as well as the gross invasion of civil liberties and indeed bodily integrity involved in a subsequent drug search.

The use of drug detection dogs should end, end of story. And yet, with both the current Coalition, and previous Labor, Governments seemingly addicted to ‘law & order’, that outcome seems incredibly unlikely.

Something which is slightly more feasible is the subject of the other key recommendation (11), which calls for the establishment of a “transparent, representative civilian-led police complaints and investigatory body with the appropriate resources, capabilities and knowledge” to oversee NSW Police. Obviously, such a body would help remedy issues experienced, not just by the LGBTI community, but also by other vulnerable groups across NSW, including Aboriginal and Torres Strait Islanders, young people and people from Culturally and Linguistically Diverse (CALD) backgrounds.

It should be acknowledged that the NSW Government has taken a small step down this path, by appointing the former Commonwealth Attorney-General, Robert McClelland, to review the investigation and oversight of police critical incidents (those where police actions have resulted in the death or serious injury of a member of the community). But this represents just a small sub-set of police actions which should be subject to independent review, and it is undeniably a long, and hard, road from this narrow review to the introduction of a broad-based, independent complaints body. We’ll see what happens on this in coming months (and, I suspect, years).

There is one final comment which I feel compelled to make. In the aftermath of the incidents during this year’s Mardi Gras, some members of Sydney’s LGBTI community focused on the possible involvement of Police officers from outside the Surry Hills Local Area Command. Specifically, they argued that if we could somehow return to a (simpler) time when Surry Hills Police were sufficient to patrol the Mardi Gras, supplemented by others from around Sydney who volunteered to be on duty, then the problems of 2013 would somehow disappear.

To me, that ignores a much deeper problem. If a Police officer is going to behave in an allegedly homophobic and aggressive way on the busiest gay night of the year, on Oxford St, in front of thousands of people, then how are they going to treat an individual LGBTI person, when nobody is looking, in other parts of Sydney, or indeed elsewhere in the state?

I am not interested in just having an LGBTI-friendly Police force serving the inner-city enclaves of Surry Hills and Newtown, while simultaneously ignoring the potential for homophobia outside those supposedly safe borders. Any officer, from any part of the State, should be able to be called up for duty around Mardi Gras and behave in a responsible and respectful manner.

Above all, every single officer, in every single station across NSW, must be able to deal with, and respond appropriately to, the concerns of LGBTI people. If they can’t, they should have their badges taken off them, because they’re not fit to be a Police officer.

The ABCs of Health & Physical Education Must Include LGBTI

Posted on November 22, 2013 by Alastair Lawrie

Next week, a decision will be made that will have a profound and long-lasting influence on the health and wellbeing of an entire generation of young lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians. And it has nothing (or at most, very little) to do with marriage equality.

On Friday, 29 November, the COAG Standing Council on School Education and Early Childhood, which includes Commonwealth, state and territory Education Ministers, will decide whether to approve the national Health and Physical Education (HPE) curriculum. The HPE curriculum, developed by the Australian Curriculum, Assessment and Reporting Authority (ACARA), has largely been ignored, struggling to compete for attention against photogenic images of same-sex couples in wedding attire, and empowered adults advocating for the right to marry the person they love.

While I obviously support that campaign (indeed, I am engaged to be married myself), the national HPE curriculum will arguably have a far greater impact on young LGBTI people, right across the country, than any other possible reform.

We already know that young LGBTI people experience significantly higher rates of mental health issues, and, tragically, suicidality, than other groups. Figures from the Don’t Ask, Don’t Tell report reveal that young same-sex attracted people are roughly six times more likely to attempt suicide (20-42% compared to 7-13% of heterosexual young people). While there is less research, similar, if anything even worse, statistics affect young transgender people.

And we already know what causes poorer mental health outcomes for younger LGBTI people – the homophobia, bi-phobia, trans-phobia and anti-intersex discrimination that still occurs all too frequently. The 2010 Writing Themselves In 3 report found that 61% of same-sex attracted and gender questioning young people had experienced verbal abuse because of homophobia, 18% had suffered physical abuse, and 26% reported other forms of homophobia.

Disturbingly, “the most common place of abuse remained school with 80% of those who were abused naming school” (WTI3 pIX). Our young LGBTI people are being abused in one of the places that they should feel safest. And the trend is worsening, with that figure markedly up since 2004 (when 74% reported homophobic abuse at school) and 1998 (69%).

Just as worryingly, young LGBTI are not receiving an inclusive education in terms of content either. While just over a third of young people reported receiving useful information about homophobia and discrimination from school (WTI3, p80), less than one fifth were able to access information about gay or lesbian relationships (p81).

Our schools are also comprehensively failing to provide adequate, and appropriate, sexual health education to young LGBTI people. Writing Themselves In 3 found that less than one in five students were taught relevant information about gay or lesbian safe sex (by comparison, approximately 70% reported receiving information about heterosexual safe sex: p82). Young people themselves are aware of this gross inadequacy – 84% of LGBTI respondents found their Sexuality Education to be either not useful at all (44%) or at best only partly useful (40%) (p84).

I have painted this confronting picture because the development of a national Health and Physical Education curriculum was an ideal chance to rectify some of these deficiencies. An inclusive HPE curriculum, which specifically included LGBTI students and content relevant to their needs, could have gone some way to reducing the disparities in health outcomes experienced by young LGBTI people. But it seems likely the document that will be agreed at the end of next week will fall spectacularly short of this goal.

Two drafts of the HPE curriculum have been released for publication consultation: the first, an 82-page draft in December 2012, the second, a pared-down 50 page revised draft in July 2013. In neither draft are the terms lesbian, gay, homosexual or bisexual even used, let alone defined. The words transgender and intersex do make a solitary appearance in the revised draft: in the glossary, erroneously included together under the heading gender-diverse.

Not only is the national HPE curriculum not going to overcome the silence about LGBTI students and content which exists in many schools across Australia – it is more likely to perpetuate and further entrench it.

To be fair, the curriculum does include a single aspirational – some might say, less kindly, token – paragraph on the subject of ‘same sex attracted and gender diverse students’ (SSAGD) on page 18 of the July 2013 revised draft. But even this includes vague, and seemingly unenforceable, commitments.

It says the curriculum “is designed to allow schools flexibility to meet the needs of these [SSAGD] students, particularly in the health context of relationships and sexuality” (emphasis added). This leaves open the possibility that some schools, including but not limited to religious schools, will exercise that same flexibility to exclude LGBTI content.

The next sentence reads “[a]ll school communities have a responsibility when implementing the HPE curriculum to ensure teaching is inclusive and relevant to the lived experience of all students” (emphasis added). That could be interpreted, optimistically, to mean all schools must include SSAGD content – or it could be interpreted, by less progressive school bodies (or indeed state and territory governments), to mean HPE education must be inclusive only where they are aware of the presence of LGBTI students.

That might seem, on the face of it, to be an overly-negative reading – except that a statement that “students facing these issues [SSAGD] exist in all schools”, which appeared in the first draft of the curriculum, was axed from the revised draft. It is hard to ignore the possibility that religious and independent schools have ensured the removal of such a clause, thereby allowing them to continue to ignore LGBTI students and content unless those students identify themselves.

These schools know that many young people will not disclose their sexual orientation, gender identity or intersex status at school (often in – quite legitimate – fear of punishment from that same school), meaning that heterosexual and cisgender-only health education can continue on much as before. Even where LGBTI students do ‘come out’, the onus should never be put on them to do so in order to receive an inclusive education: all students have the fundamental right to be taught LGBTI relevant content, whether they have disclosed their status or not.

That right exists no matter which state or territory they live in, and irrespective of whether they attend a public, religious or other private school. The right to be taught LGBTI-inclusive content also supersedes whatever views the school, or its employees, may hold, based on religion or otherwise. To me, that is the definition of putting children first, something which conservatives and family values campaigners consistently tell us to do.

Any optimistic view of the curriculum, based on the ‘aspirational paragraph’ referred to earlier, is further undermined by the lack of specific content in the individual year band descriptions, which is the practical guide to what students are expected to learn (on pages 25-42). There are no sections that guarantee detailed LGBTI-relevant content will be taught. In fact, a single reference to ‘homophobia’, which was included in the original December 2012 draft, was excised from the revised draft released in July 2013.

Even worse, there does not appear to be any section which mandates that students be taught comprehensive sexual health information (and that absence even includes heterosexual sexual health). There are no references to safe(r) sex education, to condoms, or to sexually transmissible infections (STIs). Above all, there is not a single reference in the entire draft HPE curriculum to HIV.

Imagine that for a second. More than 30 years into the HIV epidemic in Australia, and in the same year that the Annual Surveillance Reports showed a 10% increase in HIV notifications (24% in NSW), our national Health and Physical Education curriculum does not even mention HIV (nor does it include other Blood Borne Viruses (BBVs) like hepatitis B or C, which themselves each affect 1% of the entire Australian population).

The idea that, just two days before World AIDS Day, Commonwealth, state and territory Education Ministers could sit around a table and agree to an HPE curriculum that excludes HIV and other BBVs is simply astounding (and a lot of other words which I am too polite to write here).

Taken together, these omissions – LGBTI students and content, comprehensive sexual health education, and HIV and other BBVs – from the national Health and Physical Education curriculum, mean that the document that has been drafted (or the public versions of it at least) is an abject failure.

And it is a collective failure, too. The original December 2012 draft, and the July 2013 revised draft, were both released under the previous federal Labor Government. Of the state and territory Education Ministers present next Friday, five will be from the Coalition, two from Labor and even one from the Greens, and they will each bear some of the responsibility.

But above all, this is a test for the new Commonwealth Education Minister, the Hon Christopher Pyne MP. He has come to Government expressing concerns about the ACARA process for developing the national curriculum, and the outcomes it has produced. Here is his opportunity to show that he is genuine, and to help ensure that the national Health and Physical Education Curriculum is genuinely-inclusive.

If he does not, if the document that is approved on 29 November excludes LGBTI students and content, comprehensive sexual health education, and HIV and other BBVs, then Minister Pyne will earn a large red “F” on his first term report card. He can – and must – do better.

Update (3 December): The Standing Council on School Education and Early Childhood met last Friday, but did NOT endorse the national Health & Physical Education curriculum. Instead, they have noted its development, while also noting that the Commonwealth is reviewing ACARA and the curriculum development process more broadly. Basically, the curriculum is on hold until that review is finished, meaning it could be adopted at some point in 2014, amended and then adopted in 2014, or could be sent back for complete redraft, either by ACARA or someone else. I will obviously post further updates as I become aware of important developments.

LGBTI Voices Absent from the Chamber

Posted on November 16, 2013 by Alastair Lawrie

This week marked the first sittings of the 44^th Parliament of the Commonwealth of Australia. It also marked the 44^th sittings in which there have been no openly lesbian, gay, bisexual, transgender or intersex (LGBTI) members of the House of Representatives. The achievements of prominent Senators over the past 15 years – most notably former Greens Leader, Bob Brown, and current Leader of the ALP Opposition in the Senate, Penny Wong – mean many people, including some within the LGBTI community, are unaware of this fact.

However, the truth remains that, 38 years after the first Australian state decriminalised homosexuality (South Australia in 1975), and 16 since the last (Tasmania in 1997), no openly LGBTI MP has ever occupied a seat in our federal lower house. This ongoing absence is both an embarrassment, and means Australia is a statistical outlier amongst similar countries.

Above: now retired, Senator Bob Brown, former leader of the Greens.

The United Kingdom has a long, and mostly proud, history of ‘out’ House of Commons MPs. Leaving aside the ‘outing’ of Labour’s Maureen Colquhoun in 1976, fellow Labour MP Chris Smith voluntarily came out just a year into his first term, way back in 1984. The first Tory to come out in office – Matthew Parris – did so the same year. In fact, with roughly 20 current openly LGBTI House of Commons Members (there’s so many it’s getting hard to keep up), even adjusting for size Westminster features the equivalent of 4 or 5 openly LGBTI Australian House of Reps MPs.

New Zealand is similarly a long way ahead of Australia. Like the UK, our Trans-Tasman cousins had a female MP who was ‘outed’ whilst in office (Marilyn Waring from the Nationals, in 1976), with the first MP to publicly come out being Labour’s Chris Carter, shortly after his election twenty years ago. New Zealand even had the world’s first openly transsexual Member of Parliament, Georgina Beyer, before the turn of the last millennium. And, despite having a national list as part of their electoral system, these (and several other openly LGBTI) MPs represented single-member geographic electorates.

Meanwhile, the Canadian history of openly LGBTI lower house MPs has already reached a quarter century, following Svend Robinson’s pubic declaration in 1988. Even the United States Congress has featured openly LGBTI members in their House of Representatives; after Democrat Gerry Studds was outed in 1983, fellow Democrat Barney Frank came out voluntarily in 1987. Heck, the first Republican Members of Congress to either be outed (Steve Gunderson in 1994) or come out voluntarily (Jim Koelbe in 1996) happened almost two decades ago.

So, what has gone wrong in the Australian political system such that, despite having six openly LGBTI Senators or Senators-elect (in addition to Brown and Wong, there’s Democrat Brian Greig, Labor’s Louise Pratt, Liberal Dean Smith and newly-elected Green Janet Rice), not one openly lesbian, gay, bisexual, transgender of intersex MP has ever won a seat in the House of Reps? How is it that Liberal Kevin Ekendahl, contesting the seat of Melbourne Ports in September 2013, appears to be the candidate to come closest – and even he fell more than 3.5% short?

The first possible explanation is that the party machines, in particular of the Coalition and the ALP, have actively operated to prevent LGBTI politicians from rising to the top. Given Australia’s incredibly strong two-party system (much stronger than the UK, New Zealand or Canada), it’s plausible that the increasingly powerful religious/conservative wing of the Liberal and National parties, and the virulently homophobic SDA, led by Joe De Bruyn inside the ALP, have each stopped the emergence of LGBTI politicians in Australia.

Except they haven’t been completely successful – 3 of the 6 openly LGBTI Senators have come from major parties (although none yet from the Nationals). And it ignores the Senate’s position as a quasi-‘insiders club’, where the majority of people elected have themselves emerged from, or at least have the support of, the party hierarchy. Which means that, even if discrimination within the party machine offers some of the explanation, there must be more to it.

A second possible explanation is that our political parties, operating in a system of single-member electorates with compulsory voting and compulsory preferential voting, have taken conscious decisions to find candidates who do not risk alienating any specific part of the electorate, and therefore have ruled out pre-selecting openly LGBTI candidates; or have nominated them to the multi-member Senate instead. Especially in marginal suburban or regional electorates, even a small backlash from voters motivated by homophobia (or who could be made to feel so through an exploitative campaign by opponents) could arguably be the difference between success or footnote.

At least historically, that could have been a somewhat rational, albeit craven, view from inside our major parties. But over time, with the growing acceptance of LGBTI people throughout Australian society, that perspective should have become irrelevant. And, once again, it cannot offer a full explanation, because, even accounting for different electoral systems in other countries, LGBTI candidates have had to counter, and survive, explicitly homophobic campaigns against them elsewhere. That could, and should, have happened here too.

A third possible explanation is that LGBTI people themselves have ‘self-selected’ out of becoming members of the House of Reps. There are two main ways in which this could have happened. First, if LGBTI advocates and achievers, becoming disgruntled by a (real or perceived) lack of progress on equality inside the major parties, chose instead to focus their energies on minor parties like the Democrats or, later, Greens, then they have largely ruled themselves out of being viable candidates for the House of Reps. The fact that 3 of the 6 openly LGBTI Senators to date have come from these smaller parties lends some weight to this hypothesis.

The other way in which an LGBTI person might rule themselves out is that, having progressed within the major parties and been in a position to challenge for pre-selection, they instead chose not to expose themselves to public scrutiny of their sexual orientation, gender identity or intersex status, or the possibility of outright homophobia. It’s been reported before that this is one reason why Justice Michael Kirby chose the law instead of politics (as an aside, imagine the achievements of Kirby as an activist Attorney-General?). It’s possible this fear continues to be a factor today. And, given the sexism and misogyny that is still directed at our female politicians, who’s to say they’re being irrational?

Above: Senator the Hon Penny Wong, currently Leader of the ALP Opposition in the Senate, with her family. Unfortunately, as a Senator she can no longer be promoted unless or until she moves to the House of Representatives.

Last month, Bill Shorten made addressing this issue, through the introduction of LGBTI affirmative action rules for ALP candidates, one of his policy planks in the contest for Labor Leader. The proposal, oft described as a quota, drew condemnation from a diverse range of people, including Andrew Bolt and Crikey’s Guy Rundle. Disappointingly, the debate over his solution (which, for the record, I think is worthy of consideration) ignored the fact that Shorten was talking about a real problem – that LGBTI people continue to be excluded from Australia’s House of Government, long after they have stormed the barricades in comparable nations.

It’s important this problem is addressed, not because a Parliament must automatically reflect the demographic make-up of the people it represents, but because, at a time when the rights of LGBTI people continue to be a matter of major public debate (see: marriage equality), we should at least be at the table; or on a green chair or two, anyway. But above all, removing the barriers which have, in the past, operated to prevent openly LGBTI people being elected to the House of Representatives, means clearing the way to ensure that the best possible candidates are put before the Australian people, irrespective of their sexual orientation, gender identity or intersex status. That’s something we all deserve.

**********

UPDATE 7 JANUARY 2016:

On Saturday 5 December 2015, Trent Zimmerman became the first out gay man to be elected to the House of Representatives, in the North Sydney by-election created by the resignation of former Treasurer Joe Hockey.

A Liberal, Mr Zimmerman will be the first out member of the LGBTI community to serve in the lower house of our federal parliament when he formally takes his seat on Tuesday 2 February 2016.

While his historic victory was a long time coming, there is some hope that the 2016 Federal Election may even see other out LGBTI representatives elected to join him. The best chance at this stage appears to be gay army major Pat O’Neill, standing for Labor in the marginal seat of Brisbane.

Other candidates with admittedly longer odds include Carl Katter (ALP) and Jason Ball (Greens) in Higgins which is currently held by Liberal Kelly O’Dwyer (they both had much stronger chances before Malcolm Turnbull replaced the bigoted Tony Abbott as Prime Minister), and Labor’s Sophie Ismail who is running against Green Adam Bandt in Melbourne.

Of course, even if Mr O’Neill succeeds, two MPs out of a chamber of 150 do not a landslide make. LGBTI voices will still be under-represented when the issue of marriage equality is debated (yet again) next term, as well as other issues of importance to the LGBTI community.

And Australia remains well behind in terms of LGBTI representation, both in comparison to similar countries elsewhere, and when we remember the fact that there has still not been an out transgender or intersex member in either house. Despite Mr Zimmerman’s victory, there is still a very long way to go.

Liberal Trent Zimmerman became the first out LGBTI person elected to the House of Representatives on 5 December 2015 [image source: The Weekly Times].

Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Posted on September 30, 2013 by Alastair Lawrie

The following is my submission, lodged today, in response to a discussion paper and Bill released by the Member for Sydney, Mr Alex Greenwich. The Paper and Bill seek to remove exceptions which allow private educational authorities, including religious schools, the right to discriminate against lesbian, gay and transgender students. Unfortunately, I think that to achieve that goal, more amendments to the NSW Anti-Discrimination Act 1977 may need to be made. In any event, I believe that there are a range of other amendments which should also be made at the same time, including the removal of section 56 generally. Anyway, here it is:

Mr Alex Greenwich

Member for Sydney

Sydney@parliament.nsw.gov.au

Monday 30 September 2013

Dear Mr Greenwich

Submission on Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Thank you for the opportunity to provide a submission in response to your discussion paper on anti-discrimination law reform, released in August 2013, and in particular in relation to your Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013 (the Bill), which you introduced into NSW Parliament on 19 September 2013.

First of all, let me say that I welcome your strong commitment to removing the discrimination that can be experienced by lesbian, gay and transgender students in private educational institutions, including private schools. As has been demonstrated by the Writing Themselves In reports, and countless other research projects over the years, schools can be one of the major sources of homophobia and trans-phobia in the lives of young people.

It is vital that any ‘exceptions’ in the NSW Anti-Discrimination Act 1977 which may authorise schools to discriminate against lesbian, gay and transgender students are removed, and this must apply to all types of private schools, including religious schools. From what I have read, both in the Discussion Paper and associated media, as well as in your Second Reading Speech, I believe this is what your Bill is attempting to achieve.

However, I do have some concerns about the Anti-Discrimination (Private Educational Authorities) Bill 2013, in particular:

It is unclear whether the Bill, as drafted, will accomplish this aim
There are a range of other amendments which also need to be made to the Anti-Discrimination Act 1997 and
If the Bill is aimed at removing the right to discriminate from religious schools, thereby provoking an expected negative response from religious organisations, then I believe that the right of religious organisations to discriminate more broadly under s56 should be removed at the same time.

Turning first to the question of whether the Bill, if passed, would actually achieve the aim of removing the right to discriminate from all schools, including religious schools, I note that the Bill simply removes those provisions of the Anti-Discrimination Act 1997 which provide a specific right to discriminate (namely, sections 31A(3)(a), 38K(3), 46A(3), 49L(3)(a), 49ZO(3) and 49ZYL(3)(b)).

However, the Bill does not amend or seek to repeal the catch-all section which provides exceptions to religious organisations to discriminate – and that is found in section 56(d) which states: “Nothing in this Act affects: (d) 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.”

I am concerned that, by leaving this section unamended, the effect of your Bill would be to remove the right to discriminate from private educational authorities that are not religious, but that religious schools would retain the right to discriminate against lesbian, gay and transgender students on the basis of their ‘religious principles or beliefs’. The practical effect of the Bill would therefore have a positive outcome for a much, much smaller cohort of students than what is intended.

This reading of the Anti-Discrimination Act 1977, and in particular s56(d), appears to be supported by the main case in this area in recent years: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293. This case involved a service operated by the Wesley Mission, which sought to utilise the ‘protections’ offered in s56(d) to discriminate against gay male foster carers. The Wesley Mission was ultimately successful in its appeal.

While foster care is obviously not exactly the same as providing education in religious schools, I believe that it is potentially analogous in terms of indicating how broad the religious exceptions under s56(d) are in practice, and in particular in suggesting that they would operate to shield religious schools that discriminate against lesbian, gay and transgender students from the scope of the Anti-Discrimination Act 1977.

This also appears to be the opinion of the current Attorney-General of NSW, the Hon Greg Smith SC MP. In a speech titled Religious Vilification, Anti-Discrimination Law and Religious Freedom, which he gave on 24 August 2011, the Attorney-General discussed the operation of s56:

“116. Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to:

The training, education, ordination or appointment of religious leaders [s56(a)&(b)];
The appointment of any other person [s56(c)];
Any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of thast religion [s56(d)].

117. Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:

a. While section 56(c) of the ADA exempts the appointment of persons ‘in any capacity’ by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;

b. Some other jurisdictions have provisions equivalent to s56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice [NT], or don’t extend the exemption to discrimination in work or education [Qld], or limit the grounds of discrimination that are exempt.” [emphasis added]

The implication from this speech, and in particular from para 117(b) above, is that the Attorney-General believes that the protections offered by s56(d) would be available to a school or educational facility run by a religious organisation. This also appears to be the interpretation of s 56(d) by other organisations and advocacy groups which work in this area, including the Inner-City Legal Centre and Public Interest Advocacy Centre.

If that is the case – that either your Bill does not operate to limit the right of religious schools to discriminate against lesbian, gay and transgender students, or that there may be some ongoing uncertainty in this area – then might I suggest you seek additional legal advice on the scope of s56(d), and whether further amendments to your Bill might be necessary to guarantee the rights of lesbian, gay and transgender students in religious schools not to be discriminated against. Obviously, if the Bill is to be debated and ultimately voted upon in late 2013 or early 2014, it would be useful to have clarity about the exact protections to be offered by the Bill beforehand.

Moving on to my second concern about the Bill, which applies irrespective of whether students at religious schools are covered or not, specifically that there are a range of other serious problems with the NSW Anti-Discrimination Act 1977, and it is my belief that these issues should be considered at the same time by the Parliament.

For example, as well as protecting lesbian, gay and transgender students, anti-discrimination protections should also be offered to teachers and other employees at the same schools, irrespective of their sexual orientation or gender identity.

In fact, I believe that religious exceptions should be limited to only cover the appointment of ministers of religion, and the conduct of religious ceremonies. In short, religious organisations should no longer be sanctioned by the State to discriminate in employment and service delivery in places like hospitals or social services – and a reform to the existing law is a perfect opportunity to make such changes.

There are also a range of problems with the current scope of, and definitions included in, the NSW Anti-Discrimination Act 1977, including the fact that it protects homosexuals (in s49ZF) rather than people with different sexual orientations (with the effect that, while lesbians and gay men are covered, bisexuals are not).

The NSW Act also includes what I understand to be an out-dated definition of transgender (in s38A), rather than the preferred definition of gender identity as passed in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. Indeed, the NSW Act does not even cover intersex status at all, unlike its Commonwealth counterpart. I hope that you, and other MPs involved in this area of public policy, are consulting with groups representing the transgender and intersex communities about whether, and how, to deal with these issues.

There are also other problems with the current Act, including what I find to be an objectionable difference in financial penalties for individual offenders found guilty of vilification; the maximum financial penalty for racial or HIV/AIDS vilification (set at 50 Penalty Units) is five times higher than that for homosexual or transgender vilification (set at 10 Penalty Units). There can be no justification for this discrepancy, which effectively creates a hierarchy of offensiveness, with some types of vilification considered more serious than others.

The above problems with the NSW Anti-Discrimination Act 1977 are simply those which I have identified from my own reading and research. I am sure that there are other issues which also need to be addressed. This to me suggests that there is sufficient impetus for a more comprehensive re-write of the Act. While the subject of protecting lesbian, gay and transgender students is an incredibly important one, I believe that the range of problems identified above should all be dealt with at the same time.

Which brings me to my third concern with the draft Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013, and that is a concern around tactics or strategy.

By attempting to limit the right of religious organisations to discriminate against lesbian, gay and transgender students in their schools, you are taking on something which many churches take to be an inalienable ‘right’ – the ability to indoctrinate young people with their religious teachings against homosexuality or transgender identity.

As a result, I would expect a significant backlash from those same religious organisations against your Bill. The size or scale of that backlash might only be slightly less than that which could be expected from an attempt to narrow the broader exceptions contained in section 56 (by limiting its coverage to the appointment of ministers and conduct of religious ceremonies).

In that case, it is my personal view that, as well as removing the specific provisions concerning private educational authorities (as featured in your Bill), any attempt to reform the NSW Anti-Discrimination Act 1977 should also contain provisions which significantly reduce the scope of s56. If people such as yourself are going to take on the right of religious organisations to discriminate, then why not do so more comprehensively, rather than in what could be described a piecemeal (or at the very least, narrowly-targeted) fashion?

Which is not to say that moves to protect lesbian, gay and transgender students from discrimination are not welcome – they obviously are. And I also wish to restate my support for the overall intention of the Bill; protecting young people who are lesbian, gay and transgender from homophobia and trans-phobia is an incredibly important objective.

However, any attempt to do so must ensure that the Bill captures all private schools, including religious schools. And, even if that drafting issue is resolved, it remains my personal view that reform to the NSW Anti-Discrimination Act 1977 should go much further, and address broader issues including but not limited to restricting the scope of section 56.

Thank you for considering this submission.

Yours sincerely,

Alastair Lawrie

Letter to Christopher Pyne re LGBTI Exclusion from National Health & Physical Education Curriculum

Posted on September 29, 2013 by Alastair Lawrie

With the election of the Abbott Liberal/National Government on September 7 2013, Christopher Pyne has been appointed the new Commonwealth Minister for Education.

I have written the below letter to Minister Pyne about the exclusion of LGBTI students and issues (as well as sexual health and HIV) from the draft national Health & Physical Education curriculum. It is my third letter on this subject to the third Commonwealth Education Minister over the past 6 months (with previous letters to Minister Peter Garrett and Minister Bill Shorten).

Given there is little evidence these problems have been addressed by ACARA so far, here’s hoping for third time lucky.

The Hon Christopher Pyne MP

Minister for Education

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 29 September 2013

Dear Minister

LGBTI INCLUSION IN NATIONAL HEALTH AND PHYSICAL EDUCATION CURRICULUM

Congratulations on your recent appointment as the Commonwealth Minister for Education. As you are aware, in this role you are now the Minister responsible for overseeing the development of the national Health and Physical Education (HPE) curriculum.

A draft national HPE curriculum was released by the Australian Curriculum, Assessment and Reporting Authority (ACARA) in December 2012. Public consultation on this document closed in April 2013. A redrafted HPE curriculum was released for limited public consultation in July, although submissions on that document have now also closed. This means that final drafting is currently taking place by ACARA, leading to potential agreement between the Commonwealth and the States and Territories in the final three months of 2013.

Unfortunately, the draft HPE curriculum as released by ACARA (and even the redraft released in July) does not guarantee an inclusive and relevant education for all Australian students, because it neglects to address the needs of lesbian, gay, bisexual, transgender and intersex (LGBTI) students.

For example, throughout the entire 80-plus page original document the words lesbian, gay, bisexual, transgender or intersex did not appear even once. The redraft still did not include the words lesbian, gay or bisexual, and, while it did include the terms transgender and intersex (once each), it erroneously included both under the definition gender diverse (intersex is a biological characteristic and not a gender identity). It is impossible for a HPE curriculum to deal with the health needs of these students without being able to name them.

Unfortunately, an introductory paragraph from the original document which at least acknowledged that ‘same-sex attracted and gender diverse students’ (which in any event does not include intersex) exist in all schools across Australia has been amended such that this statement has been omitted. That same paragraph states that the curriculum is designed to allow schools ‘flexibility’ to meet the needs of same-sex attracted and gender diverse students, rather than mandating that all schools must provide an inclusive education. This falls short of the basic requirement that every student, in every classroom, has the right to a comprehensive health education, irrespective of their sexual orientation, gender identity or intersex status.

There are two other significant problems with the draft HPE curriculum as released. While it now at least refers to both reproductive and sexual health, it fails to provide any detail of how this topic is intended to be taught, and omits any mention of safer sex and/or detailed instruction on condom usage and other vital sexual health messages. In short, it does not include sufficient detail for the health needs of the next generation.

The second additional problem is that the entire document (both original and redraft) does not use the term HIV, or AIDS, once. While new treatments have significantly improved the health outcomes of people living with HIV, an HIV diagnosis remains a serious thing. I think it is irresponsible not to specifically mention this virus, together with the ways that it can be prevented, in a HPE curriculum. The 2012 NSW notifications data released in July 2013, which showed a 24% increase in HIV diagnoses, reinforces the need for HIV education to be included in the curriculum. Please find attached a copy of my submission to the original ACARA public consultation process, which outlines my concerns in these, and other, areas in greater detail.

Most importantly, please find attached a copy of a Change.org petition which I initiated on this topic addressed to one of your predecessors as Commonwealth Minister for Education, the Hon Peter Garrett MP, and his state and territory counterparts. Given these issues were not addressed in the redraft, the burden of rectifying these glaring omissions from the HPE curriculum now falls upon you as the new Commonwealth Minister for Education, as well as your state and territory colleagues.

This petition – calling for the HPE curriculum to be LGBTI inclusive, include sexual health and include HIV – was incredibly well-received, and secured more the 6,000 signatures in just over 3 weeks. This shows the depth of the community’s concerns that LGBTI students are included in the school curriculum, and ensuring that the content is relevant to them.

I would strongly encourage you to also read the reasons which people provided explaining why they signed this petition. They include descriptions of harm that people experienced because they had not received an inclusive education themselves when they were at school. Future students should not experience the same silence and stigma that these people suffered.

The reasons which people provided for signing the petition also demonstrate that this is an issue which matters to people from right across the community – young and old, LGBTI and their family and friends, and general members of the community who understand that all students have a right to be included.

Thank you for taking the time to read this letter, my submission to ACARA and the Change.org petition and comments which are attached. Thank you for considering this issue.

Yours sincerely,

Alastair Lawrie

Liberal-National Policies on LGBTI Issues for Federal Election 2013

Posted on September 5, 2013 by Alastair Lawrie

I was tempted to leave the content of this article completely blank, because that would be a reasonably accurate reflection of the LGBTI policies of the Liberal-National Parties for the election that is now only two days away. That is because, outside of two not very encouraging exceptions, the Coalition doesn’t appear to have any LGBTI policies for this year’s poll.

The Real Solutions booklet, which Tony Abbott and his team have been clutching tight for most of this year, makes no mention of LGBTI Australians. And, as far as I can tell, none of the policies which have been put up on the Liberal campaign website do so either (although I am happy to be corrected).

The two exceptions that I mention include Abbott’s signature Paid Parental Leave scheme (covered in my blog post earlier this week, a commitment which does not include references to same-sex couples in the formal policy document, but which Abbott, Hockey and O’Dwyer have subsequently been forced to confirm will include LGBTI parents).

And the second exception is marriage equality, which does not actually involve a policy commitment at all, only that the decision will be left to a post-election party-room to decide whether to have a conscience vote in the next term, rather than having a formal position against (although the Opposition Leader has made his own views – which remain strongly opposed to marriage equality – very clear).

This paucity of policies was confirmed through the 2013 LGBTI Federal Election Survey, which was recently conducted by the NSW Gay & Lesbian Rights Lobby, Victorian Gay & Lesbian Rights Lobby, Transgender Victoria and Organisation Intersex International Australia. This was a question and answer document, with 43 different questions spread over 12 distinct topics.

Unfortunately, while the ALP and Greens provided individual answers to all 43 questions, the Liberal-National Coalition did not provide individual answers, instead they provided a cover letter, and two-and-a-bit page attachment, which provided broad brushstrokes but very few details of what they will (and won’t) do.

The LGBTI groups I mentioned then analysed this response according to four different categories: Yes/Good Response, Qualified/Partial Response, No/Bad Response and Response does not answer the question. (For a copy of the survey documents, including the Liberal-National letter and the assessment made by the four groups, go to www.lgbti2013.org.au)

The result: for a full 29 of the 43 questions asked (ie two thirds of the total), the Liberal-National Parties’ response was deemed to not answer the question at all. In fact, in only 4 out of 43 responses (less than 10%) were the Liberal-Nationals deemed to give a positive response, with 8 qualifieds, and 2 outright nos. By way of comparison, the LGBTI groups deemed that the ALP did not answer 4 questions out of 43, and the Greens only 1 out of the 43 questions, and the clear majority of both responses were deemed to be Yes/Good.

Given that they answered less than a third of the questions asked, it is no surprise that there are entire policy areas which the Liberal-National Coalition have simply not taken a position on, and these touch a number of things which are very important to different sections of the LGBTI community.

Specifically, the Abbott Liberal-National Coalition failed to provide an answer on:

Whether they support the recent amendments to the Sex Discrimination Act which have prohibited discrimination against LGBT people by religious organisations in aged care services
Whether they oppose the introduction of civil unions before the passage of marriage equality
Whether they will continue to issue Certificates of No Impediment, which currently allow Australian couples to marry in other countries which have already legislated for marriage equality
Whether they will attempt to overrule States and Territories that introduce marriage equality (either through new legislation or High Court challenge)
Whether they will continue to fund dedicated LGBTI health initiatives, outside of HIV, and (possibly) some mental health initiatives
Whether they will retain the dedicated National LGBTI Ageing and Aged Care Strategy, and keep LGBTI as a special needs group in the Aged Care Act
Whether they will provide public funding for trans* surgeries
Whether they would help end ‘normalising’ surgery (including coerced sterilisation) on intersex infants
Whether they will use foreign policies resources to advocate specifically for decriminalisation of homosexuality around the world and
Whether they support the ‘resettlement’ of LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and Nauru).

As you can see, that is a pretty impressive roll-call of issues which the Liberal-National Coalition failed to provide an answer on. In my personal opinion, I think that this is a pretty disappointing (*alert: possible understatement) level of detail from people who will likely be occupying the Government benches from next week.

One interpretation of this would be that, by not answering these questions, they are leaving open the possibility of doing any and all of them (which could include doing positive things which they have not answered, but could equally involve doing a range of negative things, including taking away rights for LGBTI people or funding for LGBTI initiatives).

Another interpretation would be that, by failing to outline any concrete negative plans – for example, by failing to state that they will bring back religious exemptions in aged care services in the Sex Discrimination Act – even after being specifically asked, they will not have a mandate to do these when in Government. After all, it is difficult to claim a mandate to roll back rights or strip funding when you keep those policies (if you have them) a secret. And that is an argument that I expect the LGBTI community will be using if the Abbott Government does adopt negative policies in these areas after the election.

Abbott’s Paid Parental Leave Scheme and Same-Sex Parents

Posted on September 3, 2013 by Alastair Lawrie

On Saturday (7 September), it is highly likely that the Liberal and National Parties will together win at least 76 seats (and possibly many more) and that therefore Tony Abbott will be our Prime Minister when he wakes up on Sunday.

There are a range of things which he has promised which essentially amount to undoing, whether in part or in full, things that the Rudd/Gillard/Rudd Governments have done (eg the Carbon Price or the NBN), or simply taking things further in the same direction (such as the mistreatment of refugees). There have been very few major new policies or policy directions from Abbott and the Coalition.

However, there has been one major social policy commitment from Tony Abbott. Indeed, it comes with a substantial financial cost, and he has gone as far as to call it his ‘signature’ policy. That is of course Paid Parental Leave (PPL), for women who earn up to $150,000 per year, paid by the Government for 26 weeks (meaning that it is significantly more expansive in both the size of the payment, and its duration, than the existing Labor scheme).

The full details of Abbott’s PPL scheme were announced on Sunday 18 August, through a pre-release with News Corp papers, followed up by a policy launch, complete with a 14 page glossy document, outlining how the policy would operate in practice. It even included a range of scenarios, using different women’s names and estimating how much they stood to gain (and how much more that would be than the Labor scheme).

From an LGBTI activist’s point of view, however, there was a glaring omission: there was not a single mention of parents who did not neatly fit into a ‘traditional heterosexual/opposite-sex couple’. In none of the 14 pages was there a single mention of non-heterosexual or same-sex couples. Which left me, and countless other LGBTI people around the country, asking two questions:

Are same-sex couples even covered by the scheme?
If they are covered, how are their payments calculated? (which is a legitimate and not necessarily straight-forward question, given the PPL scheme states that, where a heterosexual father is the primary carer, he is entitled to PPL – but if he earns more than the mother, his payments are reduced according to the wage of his female partner).

On the morning of the 18^th, I scanned both traditional and social media in an effort to see whether there was an answer to one or both of these questions. I could find very little outside of an assertion from Samantha Maiden on twitter that yes, same-sex couples would be covered – although that turned out to be based on nothing more than her assumption that they should be covered (I would post the full twitter exchange here except that it took a lengthy back and forth before establishing that she had absolutely no evidence for her original assertion).

I then turned to social media to ask questions directly of Tony Abbott, and, given he represents one of the most populous LGBTI electorates in Australia, Malcolm Turnbull, but neither responded. I even tried to ask the Liberal Party direct: nada. Eventually, in the evening, I managed to get an answer from Joe Hockey. I reproduce a screenshot of that exchange here:

Taking him at his word would mean that, for lesbian couples, if the non-birth mother is the designated primary carer, they would be able to receive the payments based on their own wage, even if it was higher than the birth mother’s. For male same-sex couples, the primary carer’s wage would apply irrespective of whose was higher (those are the clear implications from his response).

Wanting to have more to go on than just a tweet, through my involvement in the NSW Gay & Lesbian Rights Lobby, I also helped to ensure that Paid Parental Leave, and specifically whether it covered same-sex couples on a no less favourable basis than opposite-sex couples, was one of the 42 questions which were asked in the 2013 Federal Election survey of the ALP, Liberal-Nationals and the Greens Parties. While both the ALP and Greens responses addressed this question, the Liberal Party response did not (in fact, the Liberal/Nationals did not answer the vast majority of the questions asked: see www.lgbti2013.org.au for more details, a topic I will be posting more on later in the week).

Anyway, that lack of response did not inspire much confidence in me either – both the formal 14 page policy document, and now the direct answer to a question from the NSW Gay & Lesbian Rights Lobby, Victorian Gay & Lesbian Rights Lobby, Transgender Victoria and Organisation Intersex International Australia, had failed to include any commitment that the PPL policy was intended to be non-discriminatory in its operation.

Which meant that Tony Abbott’s comments on Jon Faine on ABC Radio Melbourne on Friday 30 August were very welcome. From the Guardian Australia website:

“Abbott gets a caller during the Faine interview who is clearly unhappy with lesbian mothers – two of them – getting access to the Coalition’s PPL scheme. Will two lesbian mothers get the payment?

Abbott’s response:

If they both have kids, fine ..

Abbott says the same would happen with the government’s PPL scheme. The caller says at least they wouldn’t get $75,000.”

At the very least, Abbott has committed that his PPL scheme will cover lesbian co-parents (and, given the policy document does include adoptive parents, by rights it should cover gay male co-parents as well).

As an additional source of comfort, on Saturday 31 August at the LGBTI Policy Forum held in Melbourne, the Liberal Member for Higgins, Kelly O’Dwyer, gave the following response to an ABC journalist:

JEFF WATERS: While you’re there, if I may – will the opposition’s paid parental leave scheme include both parents in same sex relationship who is have children?

KELLY O’DWYER: Our paid parental leave scheme is non-discriminatory. We believe that the carer of the child is entitled to the paid parental leave scheme. That is what we have announced. That is what we are committed to implementing. So the person who is going to be looking after the child will be entitled to the paid parental leave scheme which is capped to ensure that that child has the best possible start in life, and that families, all families, heterosexual families, homosexual families, all families are better off. (Applause)

Overall, despite the fact that it has been much harder than it should have been to get a direct answer from Abbott and the Liberal/National Parties on this issue, we are now in a position where they have clearly promised that same-sex couples will be included in its PPL scheme.

Which means that if, for whatever reason (aka Nationals and/or backbench revolt), they do not extend Paid Parental Leave to cover same-sex parents, it will be a broken promise, and on something which Tony Abbott has claimed is his ‘signature’ policy. That would be a massive blow to the credibility of him and his new Government – put another way, given he is likely to be moving into the Lodge next week, there is significant pressure on him to live up to his commitment for his PPL policy to be LGBTI inclusive.

PS Obviously, if there are other places where the Coalition or its MPs have committed to the PPL covering same-sex couples please send them to me and I will link them here. I would hope that Serkan Ozturk at the Star Observer’s interview with Malcolm Turnbull, which is expected to be published on Thursday, will also cover this topic and I will publish his response on this as well.

LGBTI Refugees and the 2013 Federal Election

Posted on September 3, 2013 by Alastair Lawrie

It appears that my previous post on LGBTI asylum seekers was overly optimistic (well, to be perfectly honest it wasn’t that optimistic to begin with – it’s just that the reality has turned out to be even worse than the already dire situation).

After more than 9 months of trying to get an answer out of the Commonwealth Immigration Minister (first Chris Bowen, and then Brendan O’Connor), when I eventually received a response from the Immigration Department instead in June, it failed to answer whether the criminal laws against homosexuality of Nauru and Papua New Guinea applied to refugees in processing centres there.

This omission clearly implied that the criminal laws do in fact apply. However, the letter left open an interpretation that refugees who were LGBTI, and feared persecution (or prosecution) in these countries, could apply to the Minister to be transferred to Australia, on the basis that their rights could not be guaranteed in those countries.

Unfortunately, that no longer appears to be the case. In the time since that response the Prime Minister changed, and within a month of Rudd’s return he had announced the ‘PNG Solution’, with a similar deal with Nauru revealed shortly afterwards. These policies moved beyond offshore processing, to include the permanent ‘resettlement’ in those countries of any and all refugees who arrive in Australia by boat.

Now, let me say from the outset that I completely oppose these policies, and believe them to be unconscionable, inhumane, and probably contrary to international law. Australia should not be in the business of abrogating its responsibility to offer protection to people who are fleeing persecution by simply dumping these people in other countries. And my opposition applies to the ‘resettlement’ of all refugees, irrespective of the grounds of their persecution (eg race, religion, nationality etc).

However, as a gay man, and in particular as a passionate advocate for LGBTI rights, I find policies that involve the resettlement of LGBTI refugees in countries that criminalise homosexuality particularly abhorrent. That is exactly what Australia is doing – taking any LGBTI refugee who arrives by boat and sending them to countries which make male homosexuality a criminal offence, liable to up to 14 years’ imprisonment.

I know that many other people agree with me – in fact, the only pleasing thing arising from this horrible situation has been the emergence of a variety of voices condemning these policies. This has meant that the Labor Government has been unable to avoid questions on this particular topic (something which they had largely managed to successfully do in the previous 10 months).

But it doesn’t make the answers given by Government Ministers any easier to stomach. On 8 August, Serkan Ozturk of the Star Observer reported that the Attorney-General Mark Dreyfus (an intelligent man who really should know better): “confirmed the government intends to send all asylum seekers who arrive in Australia by boat without a visa – including LGBTI people fleeing persecution and people living with HIV – to Papua New Guinea (PNG) for processing and permanent resettlement despite laws criminalising homosexual sex, high rates of HIV infection and limited medical and social infrastructure on the impoverished island-nation…

When questioned by the Star Observer on whether LGBTI asylum seekers would be sent to PNG, Dreyfus was unequivocal.

“You’ve outlined an aspect of PNG law which is of general application but as I say we are not ruling out any group,” Dreyfus said.

“At the same time our Minister for Immigration, Tony Burke, has made it very clear that those transfers won’t occur until there is appropriate accommodation and appropriate circumstances for everyone who is sent.”

Pressed on whether that meant the Australian government would be placing pressure on PNG to reform legal codes, Dreyfus said he would not be drawn “giving a running commentary” on the laws of neighbouring countries, including PNG, Indonesia or Malaysia.

“We don’t think that’s necessary in order for Australia to comply with our international legal obligations and the obligations we have under the Migration Act.””

The fact that the Government is aware of this situation, and specifically the potential consequences of sending LGBTI refugees to these countries, but has continued on along this path irrespective of the dangers, is damning.

Sadly, the Foreign Minister, Senator Bob Carr, isn’t any better. On 6 August the ABC reported (from what I believe was a response to an oursay question from Senthorun Raj) that Senator Carr similarly confirmed that homosexual asylum seekers who arrive in Australia by boat will be resettled in PNG despite facing prison under local laws, even though those laws conflict with contemporary Australia values.

“I am concerned about… what we see as a grotesquely outdated, legal position applying in PNG. I understand – and I know this is little comfort – but there have been few if any charges laid or prosecutions made under laws prohibiting homosexual activity in PNG,” he said. You are right on one thing, Senator Carr: that is little comfort.

Tony Burke, the current Minister for Immigration (and the third person to hold that post this year), also believes that this policy is appropriate. However, in one of the most Orwellian moments of the 2013 federal election campaign (or indeed in recent Australian politics more generally), he stated that he had been advised that ‘no part of the caseload so far’ had arisen (ie no LGBTI person had been sent to Nauru or PNG so far).

The transcript, from a media conference on 1 August, is as follows:

Question: Sorry Minister, just to go out to Manus Island for a moment. Given that homosexuality is still considered a crime in PNG, but our government has pledged to transfer all asylum seekers regardless of their sexuality, what efforts have been undertaken to make sure that those transferred will not be persecuted for their sexuality, either as detainees, or if they are then settled in PNG?

Tony Burke: In the first instance we have no part of the caseload so far where this issue has arisen, no part of the caseload where this has arisen. In…

Question: So does that mean…

Tony Burke: Please, please, when other people were talking over you I made sure you got the run so allow me to answer your question.

I’ve been very careful throughout all of this to not carve out any exclusions from the policy. And I explained the implications of that with the specific reference to what the Opposition have attempted to do with women and children. There are very deep implications if we start carving people out. And if you do that, you are by no means taking a – I’m saying you, but anyone doing that is by no means taking a compassionate response because of the automatic reaction that people smugglers will engage in.

My language on this has not changed, which is people will be sent when we are confident they will be safe, when we are confident that appropriate accommodation and services are in place, and I’m not going to define it further than that.”

Which raises far more questions than it provides answers. It is possible that what he meant to say was that no-one sent to Manus Island has lodged a refugee claim on the basis of persecution of sexual orientation, gender identity or intersex status. But that doesn’t mean those claims won’t emerge at a later point (it is definitely possible that a LGBTI refugee will not disclose their status in the limited time after arrival in Australia and before transfer, but that it would instead emerge at a later point).

And it ignores the fact that someone who is seeking refugee protection on the basis of race, religion or other grounds can also be LGBTI (even if just as someone who has sexual intercourse with someone else of the same sex). This would not be immediately apparent to an interviewer and there are foreseeably several reasons why they would NOT disclose their particular circumstances (especially if fleeing as part of a family group where their family is unaware of their sexual orientation).

But the most obvious flaw in Minister Burke’s advice is that all refugees who arrive by boat, including children, are being ‘resettled’ in PNG and Nauru. Those children could grow up to be lesbian, gay, bisexual or transgender, or they may have been born intersex, and it may not be known to that child, their family or indeed anyone else at the time of resettlement. It does not make it any more acceptable that as a country we exposed that child to future criminal prosecution (or at the very least, societal discrimination), simply because we didn’t know of their status.

We DO know that this policy is wrong and should be stopped, which means that we are collectively responsible for what happens in the future as a result of it.

Unfortunately, while some of the positive reforms of the Rudd/Gillard/Rudd Labor Governments will be dismantled by the incoming Abbott Liberal-National Government it seems there is bipartisan agreement on the idea of resettling refugees in South Pacific countries. Opposition Leader Tony Abbott, and Shadow Minister for Immigration Scott Morrison, both appeared to welcome the announcement by Rudd of the PNG policy, while they have also announced their own plans to resettle refugees in Nauru (aka “tent city”).

It should also be pointed out that, last September, at the same time that I wrote to the Immigration Minister (and Prime Minister and Attorney-General), I also wrote to the Shadow Minister, Opposition Leader and Shadow Attorney-General, raising the same concerns about the processing or resettlement of LGBTI refugees in countries which criminalise homosexuality. No-one from the Opposition ever responded to these letters, which perhaps indicates how seriously they take those concerns.

The fact that, as it stands, both major parties endorse this policy means that, no matter who is elected on Saturday, the incoming Government will continue to abrogate its responsibilities to offer protection to all refugees, including refugees who are LGBTI. That it will inevitably continue to be cheered along by sections of the press will make it even harder to endure.

Perhaps the only ray of hope in this awful mess is that the High Court might do what the public should (but won’t) on Saturday – tell our MPs, from both the ALP and the Liberal-National Coalition, that resettling refugees in PNG and Nauru is unconscionable, inhumane, and, hopefully, unlawful. So, to our distinguished High Court Justices I say: no pressure, but it seems this is now entirely up to you.

Submission on Redrafted National Health & Physical Education Curriculum

Posted on July 30, 2013 by Alastair Lawrie

The Australian Curriculum, Assessment and Reporting Authority (ACARA) released a slightly redrafted version of the national Health & Physical Education curriculum for limited public consultation over the past 2 weeks. While there were some modest improvements from the original draft released in December 2012, there are still significant problems with what is proposed, especially as it fails to ensure that content is relevant for LGBTI students, and that every classroom is genuinely LGBTI inclusive.

This afternoon I provided my personal submission to the process, which included attachments covering my previous petition to the Commonwealth Education Minister, the Hon Peter Garrett MP, and the comments which people made on that (although not reproduced here because both are too large). Anyway, here is my submission (I understand that a range of groups, including the NSW Gay & Lesbian Rights Lobby and others, will be making submissions too, so hopefully there is more change before the final document is released later this year):

Submission on Redrafted National Health & Physical Education Curriculum

I am writing to provide a personal submission in response to the redrafted national Health & Physical Education (HPE) curriculum, as published on the Australian Curriculum, Assessment and Reporting Authority (ACARA) website in July 2013.

I also provided a submission in April 2013 in response to the original draft HPE curriculum as released by ACARA in December 2012. Please find a copy of that submission at Attachment A. In it, I outlined a range of substantive concerns with the draft curriculum, and in particular in relation to how it related to (or, more accurately, ignored) the needs of lesbian, gay, bisexual, transgender and intersex students.

These concerns included that:

The draft curriculum did not explicitly include LGBTI students by name, nor did it ensure that every classroom in every school included content that was relevant to LGBTI student needs
The draft curriculum also concentrated on ‘reproductive health’ meaning that it effectively excluded the sexual health needs of LGBTI students and
The draft curriculum did not even include the term HIV, let alone ensure that groups at higher risk of contracting HIV (including gay and bisexual men) receive appropriate education to help prevent new transmissions.

Following the lodgement of my submission, I also initiated a national petition to the Commonwealth Education Minister at the time, the Hon Peter Garrett MP, and his state and territory counterparts. I have since sent this petition to the new Commonwealth Education Minister, the Hon Bill Shorten MP, and the NSW Education Minister, the Hon Adrian Piccoli MP.

This petition, which called for the three issues listed above to be remedied as a matter of urgency, received an incredible level of community support, garnering more than 6,000 signatures in less than four weeks.

However, just as important as the number of signatures, the comments which people provided demonstrate the breadth and depth of community concern about the failure of the original HPE curriculum to address the issues of LGBTI inclusion, sexual health education and HIV.

These comments show that this is an issue which matters not just to LGBTI people themselves, but also to their family members and friends, as well as a broad cross-section of the community who understand that everyone has a right to inclusive, appropriate health education, irrespective of sexual orientation, gender identity or intersex status. I would strongly encourage you to read these comments, as many of them are far more articulate and passionate about why LGBTI students must be included than I could ever hope to be.

Having examined the redrafted HPE curriculum released on the ACARA website earlier this month, I would like to acknowledge that there have been some improvements made from the December 2012 version, including an attempt to include reproductive health and sexual health, rather than just reproductive health.

However, it is also disappointing to note that many of the significant problems which existed in the original draft have not been resolved. I will use the remainder of this submission to identify those areas which still require amendment in order to meet the needs of LGBTI students, including specific recommendations to make these much needed improvements.

Recommendation 1: The national HPE curriculum must directly and explicitly include lesbian, gay and bisexual students, and content which is relevant to their needs

As with the original draft submission, I believe that it is irresponsible for a national HPE curriculum not to even include the words lesbian, gay or bisexual. These are the most common forms of sexual orientation for people who are not heterosexual. To deliberately exclude these terms from the curriculum contributes to the marginalisation of students who may grow up to identify with any one of these terms.

By excluding these terms/sexual orientations, I believe that the curriculum would inevitably lead to some schools ignoring the health needs of these students, and ultimately contribute to higher level of mental health issues across the lesbian, gay and bisexual communities, including higher rates of depression and youth suicide.

I must also highlight that including the term same-sex attracted (in the ‘aspirational’ paragraph on page 18 – more on that at recommendation 3, below – and in the Glossary) is insufficient in and of itself to ensure that lesbian, gay and bisexual students are included in both classrooms and content. While I acknowledge that it is an inclusive term, I do not understand how referring to the term ‘same-sex attracted’ twice (and only once in the body of the document, and even then not in the content description for any year), without providing more information, will help ensure that all students learn what being lesbian, gay and bisexual mean, in the same way that they would learn what being heterosexual means.

In fact, I find it impossible to see how excluding the words lesbian, gay and bisexual does anything other than ensure that students who happen to be lesbian, gay or bisexual are denied their right to an equal and fair health education, irrespective of which school they might attend.

Recommendation 2: The national HPE curriculum must directly and explicitly include transgender and intersex students, and content which is relevant to their needs, whilst noting that gender identity and intersex status are different things meaning that education about these issues must make this distinction

I acknowledge that the terms transgender and intersex are at least included in the redrafted national HPE curriculum. However, they are only included in the glossary on page 45, and unfortunately the curriculum incorrectly includes both as part of the definition of gender-diverse. Transgender may fall within this term, but intersex is a distinct characteristic as a biological sex status.

I am not an expert in this field, and expect that submissions from the National LGBTI Health Alliance as well as Organisation Intersex International (OII) Australia will provide recommendations to improve the curriculum in terms of transgender and intersex inclusion. I would encourage you to give full consideration to their suggestions in these areas.

Recommendation 3: The statement about LGBTI inclusion must explicitly refer to lesbian, gay, bisexual, transgender and intersex students, and ensure that all schools are inclusive of these students, irrespective of whether students have publicly identified their orientation, identity or status

I note that the ‘aspirational’ statement of inclusion on page 18 of the redrafted curriculum has been amended from the original December 2012 draft. In particular, I am concerned by the decision to omit the statement that ‘same sex attracted and gender diverse’ students exist in all schools. It is unclear why this statement of fact has been removed, given we know that people who are LGBTI have come from all school communities across the country.

This omission also presents some complications when read together with remainder of the paragraph as redrafted, which talks about “becoming increasingly visible”, “designed to allow flexibility” and “have a responsibility… to ensure teaching is inclusive and relevant to the lived experiences or all students”. One reading of this paragraph is that schools now only have a responsibility to be inclusive where they are aware that students are LGBT or I (ie where schools are aware of the lived experience of their students).

If this is the case, it is not acceptable. All students have a right to be included, and to have their health and physical education needs met, and most importantly should not have the onus placed on themselves to disclose their orientation, identity or status in order to receive this education (especially when such disclosure can risk discrimination from other students, teachers and sometimes from the school itself).

I strongly recommend that this paragraph be amended so that it:

Explicitly names LGBTI students (for example, same-sex attracted students, including lesbian, gay and bisexual students, and transgender and intersex students) and
States that all school communities must provide content and classrooms which are inclusive of LGBTI students, irrespective of whether they disclose their orientation, identity or status.

Recommendation 4: The statement about LGBTI inclusion must be supported by explicit references to LGBTI content in the year descriptions

While an ‘aspirational’ statement on page 18 is welcome, in order to be most effective it should be backed up by explicit references to issues of concern to LGBTI students at relevant points throughout the curriculum.

For example, the terms transgender and intersex should be introduced and explained from Foundation/Years 1-2, given these identities and statuses can be present from early childhood and/or birth.

Ideally, the orientations lesbian, gay and bisexual should be introduced and explained in Years 3-4, so that students who experience same-sex attraction in puberty (which can commence for some in these years) are aware that these attractions are normal. At the latest, all students should be aware of the concepts of heterosexuality, as well as homosexuality and bisexuality, by the end of Year 6.

This would then leave room from comprehensive and inclusive sexual health education (and not just reproductive health) in Years 5-6 (more on this at recommendation 5, below), or Years 7-8 at the absolute latest.

I note with particular concern the sub-strand Being healthy, safe and active, on page 27 of the redrafted curriculum, which includes the following points under Years 7-8:

Examining the impact of physical changes on gender, cultural and sexual identities and
Exploring sexual identities and investigating how changing feelings and attractions are part of getting older.

This is both far too old (covering students who are turning 13 and 14 across most states, beyond the age which many people have first realised that they are same-sex attracted, including myself) and far too vague, to be genuinely inclusive of LGBTI students and their needs.

LGBTI issues should also be explicitly mentioned in the outline of the Relationships and sexuality learning area on page 9 of the document, which is reproduced in the Glossary on pages 47 and 48. For example, the dot point “changing identities and the factors that influence them” could be redrafted to include “developing sexual orientations, include heterosexual, lesbian, gay and bisexual, and the factors that influence them” while transgender and intersex should be included in in this Area of learning in Foundation to Year 2 (as indicated above).

Recommendation 5: The term sexual health should be preferred to reproductive health throughout

I welcome the amendment from the original draft of the HPE curriculum, with the addition of sexual health to the redrafted curriculum. However, I am confused by the inclusion of both reproductive health and sexual health, and the definitions of both which are provided in the Glossary on pages 48 and 49 respectively.

In particular, the definition of reproductive health seems to try to ‘cover the field’ for the physical aspects of sexual health, even though for many people their sexual anatomy/systems are not primarily related to ‘reproduction’. This is especially apparent when considering the definition of sexual health, which uses the shorter World Health Organisation definition of sexual health, but not the 2006 longer and more inclusive definition which begins: “…a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or infirmity” [emphasis added].

This longer definition makes it clear that sexual health includes the physical health aspects of sex education. As a result, I believe that the much more inclusive term sexual health should be used throughout the document, and if explicit references to reproduction are considered necessary, then the term should be ‘sexual health, including reproductive health’. This would help to ensure that the needs of all students are considered and not just those of heterosexual students.

Recommendation 6: The topic of sexual health should include more detailed information on safer sex, including condom usage, and Sexually Transmitted Infections (STIs)

While it is welcome that sexual health has been added as a term to the redrafted HPE curriculum, it is unclear where it is intended that detailed sexual health education, including STI information and prevention, is included in the content for specific years.

As indicated above, I believe that comprehensive sexual health education should be included in Years 5-6 (and by 7-8 at the absolutely latest). In order to meet the needs of all students, whether LGBTI or otherwise, it must include specific references to safer sex, and condom usage, as well as ensuring that students learn about STIs and how they can best be prevented (and where relevant treated). I cannot locate this information in the redrafted document.

I believe it would be irresponsible for a HPE curriculum not to ensure that students learn this information prior to the age at which they become sexually active.

Recommendation 7: The national HPE must include Blood Borne Viruses, and in particular HIV

Building on the inclusion of sexual health, and comprehensive sexual health education, including STIs (recommendations 5 and 6 respectively), I believe that it is vital for the national HPE curriculum to explicitly refer to Blood Borne Viruses, including HIV.

As a gay man who has just turned 35, I find it almost incomprehensible that HIV, including information about how it can be prevented, has been omitted from the HPE curriculum, both in the original draft and in the redraft. While HIV is no longer a ‘death sentence’, diagnoses with HIV is still a serious thing, and we should be maintaining our efforts to minimise new transmissions. This is particularly important for younger gay and bisexual men, with male same-sex intercourse remaining the primary means of HIV transmission within Australia.

The importance of this message is reinforced by recent figures which show that the number of HIV notifications in NSW rose by 24% in 2012, including 19% among men who have sex with men. The HIV epidemic is not over, and it is essential that a national Health & Physical Education curriculum provides relevant information for young people to help them avoid future HIV transmissions.

Recommendation 8: The national HPE curriculum should ensure that all students learn about homophobia, bi-phobia, trans-phobia and anti-intersex prejudice, and the damage caused by each

One of the pleasing aspects of the original HPE curriculum, released in December 2012, was that it explicitly named ‘homophobia’ as something that students should be taught about (and implicit in this, was the assumption that students would learn the damage caused by discrimination on the basis of sexual orientation). In my original submission, I argued that this should be amended to include bi-phobia, trans-phobia and anti-intersex prejudice as well, as these encompass similarly destructive beliefs and behaviours.

Unfortunately, it appears that the reference to homophobia has now been deleted, and replaced by a much more generic statement on page 34: “examining values and beliefs about cultural and social issues, such as gender, race, sexuality and disability” and “researching how stereotypes and prejudice are challenged in local, national and global contexts.”

To me, these statements do not ensure that students learn that homophobia, bi-phobia, trans-phobia and anti-intersex prejudice are entirely negative phenomena, which can cause immense hurt amongst members of these groups (indeed, the first statement makes no value judgment at all about different ‘values and beliefs’ in relation to sexuality, and leaves it open to some schools teaching that discrimination on the basis of sexual orientation, gender identity and intersex status is acceptable behaviour).

I would strongly urge you to reconsider the drafting of these dot points, and to include homophobia, bi-phobia, trans-phobia and anti-intersex prejudice as subjects about which students should learn, including being taught about the damage caused by these types of discrimination.

Conclusion

Thank you for reading my detailed submission, and attachments. I acknowledge that much of what I have written is strongly worded, but it is only done so out of genuine concern that, if the redrafted national HPE curriculum was implemented without further amendment, it would fail to meet the needs of our LGBTI students, and fail to provide them with the sexual health and HIV prevention education that they have a right to.

Research has shown that younger LGBTI people are amongst the most disadvantaged students across the country, with high rates of bullying and harassment, and consequently of mental health issues including depression and youth suicide.

I believe that the development of a national Health & Physical Education curriculum is an ideal opportunity to remedy some of the active discrimination which exists against lesbian, gay, bisexual, transgender and intersex students, through the introduction of LGBTI-inclusive content, and hopefully leading to LGBTI students being genuinely included in classrooms across the country. I hope that the final version of the HPE curriculum will implement as many of the above recommendations as possible, to help make this a reality.

Sincerely,

Alastair Lawrie

How Does Tony Abbott’s Paid Parental Leave Scheme Affect Same-Sex Parents?

Posted on July 3, 2013 by Alastair Lawrie

The following is a letter which I have tonight sent to the Leader of the Opposition, the Hon Tony Abbott MP, about his Paid Parental Leave (PPL) policy. Despite the fact that PPL has been Liberal-National policy for more than 3 years, it remains unclear whether same-sex parents are included on an equal basis and, if so, how the rate of payment to the primary carer is calculated.

While I probably don’t expect an answer from him before the election, I think it is incumbent upon all activists in this area to keep asking these questions until we get a response – because after all, we deserve to know how this policy will affect LGBTI people before cast their votes.

Dear Mr Abbott

PAID PARENTAL LEAVE AND SAME-SEX PARENTS

I am writing to you concerning the Paid Parental Leave (PPL) policy which you are taking to the 2013 Federal Election. Specifically, I would like to know how the PPL policy will apply to same-sex parents.

Firstly, can you please confirm that same-sex couples will qualify, on an equal basis, to PPL under a Liberal-National Government? This should include the ability of one parent to access primary carer leave, and another parent to access the shorter, paid parental leave – in the same way that heterosexual couples would qualify.

Secondly, I would like to know how the rates of these payments will be calculated. Based on information already released, my understanding is that, for all heterosexual couples, primary carer payments will be calculated according to the salary of the ‘mother’ (irrespective of who is in fact the primary carer after birth).

How are payment rates for the primary carer calculated for same-sex couples, including male couples who have children through adoption or surrogacy? The salary of the ‘birth mother’ in these circumstances may be irrelevant, especially where she does not become a parent of the child. In this case, would same-sex parents be able to nominate the primary carer and therefore the salary according to which the payment is calculated?

These are important questions which you and the Liberal-National Coalition should answer ahead of the election – Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community deserve to know how one of your long-standing policies affects them, or indeed whether it covers them at all.

Thank you in advance for considering this correspondence.

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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Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Letter to Christopher Pyne re LGBTI Exclusion from National Health & Physical Education Curriculum

Liberal-National Policies on LGBTI Issues for Federal Election 2013

Abbott’s Paid Parental Leave Scheme and Same-Sex Parents

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Submission on Redrafted National Health & Physical Education Curriculum

How Does Tony Abbott’s Paid Parental Leave Scheme Affect Same-Sex Parents?