Northern Territory Election: Anti-Discrimination Questions

[Update: For a response from the re-elected Labor Government, please scroll to the end of the post]

The Northern Territory election will be held on Saturday 22 August 2020. One of the many issues that could be affected by the outcome is the future of the Anti-Discrimination Act (NT), which commenced on 1 August 1993.

This legislation is now out-dated, and does not offer appropriate protection to the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. For more information on its problems, see: What’s Wrong With the Northern Territory Anti-Discrimination Act?

While the Northern Territory Department of the Attorney-General and Justice conducted a public consultation on modernisation of the Act in 2018, no reforms have been proposed or progressed prior to the current election campaign.

In this context, I have sent the below questions to the leaders of the three main parties contesting the election: Territory Labor; the Country Liberal Party; and the Territory Alliance. If I receive answers from any Party prior to the poll, they will be published below.

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8 August 2020

The Northern Territory Anti-Discrimination Act is now more than a quarter of a century old, and does not offer appropriate protections against discrimination for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

If your Party forms government after the election on 22 August 2020, will you commit to, as a matter of priority:

  • Update the definition of ‘sexuality’ to be consistent with the definition of ‘sexual orientation’ in the Sex Discrimination Act 1984 (Cth)?
  • Introduce a new protected attribute of ‘gender identity’, to ensure all trans and gender diverse people are protected against discrimination?
  • Introduce a new protected attribute of ‘sex characteristics’, to ensure all intersex people are protected against discrimination?
  • Amend section 37A(a)(ii) to remove the ability of religious schools to discriminate against teachers and other staff members simply because they are lesbian, gay, bisexual and transgender (LGBT)?
  • Remove the ability of religious organisations to discriminate against LGBT people in relation to accommodation under section 40(3)?
  • Introduce new prohibitions against vilification, including on the basis of race, as well as in relation to sexual orientation, gender identity and sex characteristics?

Please note that, if received, your answers will be published on www.alastairlawrie.net, and at ‘No Homophobia, No Exceptions’.

Sincerely,

Alastair Lawrie

No responses were received from Territory Labor, the Country Liberal Party or Territory Alliance prior to the election on 22 August 2020.

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The below response was received from Labor Attorney-General Selena Uibo on 5 October 2020. It is disappointing in two key ways. First, most obviously, they did not comment in time for NT voters to consider ahead of the 22 August election.

Second, and more importantly, it abdicates responsibility for fixing the outdated NT Anti-Discrimination Act, preferring to wait until after the Australian Law Reform Commission (ALRC) to complete its review of religious exceptions at Commonwealth, state and territory law.

However, as I have written previously, that review has been delayed until 12 months after the Commonwealth Religious Discrimination Bill has been *passed* by Commonwealth Parliament, which a) hopefully will not happen and b) if it does, won’t be until the first half of 2021 – meaning the ALRC will not report until 2022 at the earliest.

There is absolutely no justification for the re-elected NT Government to postpone taking urgent action to provide LGBTI Territorians with essential protection against discrimination and vilification. Anyway, here is the short response from Minister Uibo:

Dear Alastair,

I refer to your correspondence dated 8 August 2020 in relation to the Anti-Discrimination Act 1991.

The Territory Labor Government is committed to making changes to modernise the Territory legislation based on feedback received.

The Commonwealth Government have referred a number of recommendations following the Federal Report into Religious Freedoms to the Australian Law Reform Committee [sic]. Given the impact that Commonwealth legislation can have on the Northern Territory, we have been awaiting their report, before any changes are considered. This Report was originally due in April 2020; however, this date has now been extended to allow passage of the Federal Religious Discrimination Bill. It is expected that the Law Reform Committee [sic] Report will be returned sometime in 2021.

Thank you for taking the time to write to me regarding this important issue.

Yours sincerely,

Selena Uibo

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Chief Minister Michael Gunner (Territory Labor), Opposition Leader Lia Finocchiaro (Country Liberal Party) and Territory Alliance Leader Terry Mills.

What’s Wrong With the Northern Territory Anti-Discrimination Act?

This post is part of a series of posts looking at Australian anti-discrimination laws and analysing how well, or in many cases how poorly, they protect lesbian, gay, bisexual, transgender and intersex (LGBTI) people from discrimination and vilification. The other articles can be found here.

These articles look at the laws that exist in each jurisdiction, and assess them in three key areas:

  • Protected attributes
  • Religious exceptions, and
  • Anti-vilification coverage.

Unfortunately, the Northern Territory Anti-Discrimination Act has significant problems in relation to all three issues, meaning there is plenty of work to do for the Legislative Assembly to ensure LGBTI people are adequately protected against discrimination and vilification.

Protected Attributes

Sub-section 19(1) of the Northern Territory Anti-Discrimination Act sets out the grounds on which discrimination is prohibited, including “19(1)(c) sexuality.”

Sexuality itself is defined in section 4 of the Act as: “sexuality means the sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality.”[i]

On a positive note, employing this definition means the Act does offer protection to lesbians, gay men and bisexual people (something not all state and territory laws do – for example, New South Wales does not cover discrimination or vilification against bisexual people). Although arguably it could still benefit from the more inclusive definition of ‘sexual orientation’, as featured in the Commonwealth Sex Discrimination Act 1984[ii].

However, there are significant problems in terms of the Act’s application to discrimination against transgender people. First, because it includes ‘transsexuality’ within the term ‘sexuality’, when it is in fact about gender identity.

Second, and more importantly, by using the word ‘transsexuality’ rather than transgender (or including the term ‘gender identity’[iii] as its Commonwealth equivalent does, which would be preferred), it is possible that the Act fails to protect transgender people who are not ‘transsexual’ from discrimination, which is clearly a significant failing.

Another significant failing is the complete absence of protection against discrimination for intersex people. This stands in contrast to the Commonwealth, Tasmania, the ACT and South Australia who have all prohibited discrimination on the basis of ‘intersex status’[iv].

Summary: The Act does cover discrimination against lesbian, gay and bisexual Northern Territorians (although it could be further improved by adopting a more inclusive definition of sexual orientation). However, by using the term ‘transsexuality’, and including it within the term ‘sexuality’, it is likely the Act does not cover all transgender people. It also fails to offer any protection to intersex people.

Religious Exceptions

There are some positive, but also several negative, features of the Northern Territory Anti-Discrimination Act in terms of the special rights it grants religious organisations to discriminate against LGBTI people.

The primary provision establishing ‘religious exceptions’ is section 51:

“This Act does not apply to or in relation to:

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or

(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or

(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or

(d) an act by a body established for religious purposes if the act is done as part of any religious observance or practice.”

The drafting of these exceptions is actually relatively narrow when compared with those that exist in other states and territories.

For example, while the first two paras above (section 51(a) and (b)) are identical to the NSW Anti-Discrimination Act 1977 section 56(a) and (b), the NSW legislation subsequently goes much further, allowing discrimination in relation to:

“(c) the appointment of any other person in any capacity by a body established to propagate religion; or

(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.”

In contrast, the primary Northern Territory provision appears to more closely target the appointment of ministers of religion, and religious celebrations and practices, rather than the more nebulous criteria of ‘avoid[ing] injury to the religious susceptibilities of the adherents of that religion”.

Indeed, depending on the scope of ‘religious observance or practice’, and how this phrase has been interpreted by the judiciary, the NT provision is arguably more justifiable on the basis it seems to be concerned with religious freedom, rather than providing religious organisations with carte blanche to discriminate against LGBTI people.

Unfortunately, the same cannot be said of other sections of the Act. Section 37A provides an incredibly broad exception to religious schools:

“An educational authority that operates or proposes to operate an educational institution in accordance with the doctrine of a particular religion may discriminate against a person in the area of work in the institution if the discrimination:

(a) is on the grounds of:

(i) religious belief or activity; or

(ii) sexuality; and

(b) is in good faith to avoid offending the religious sensitivities of people of the particular religion.”

In effect, any religious school in the Northern Territory can discriminate against any employee or potential employee solely because they are LGBTI, irrespective of the role and no matter how qualified they may be. This is simply unacceptable and must be removed.

The section covering discrimination against students is not as broad. Sub-section 30(2) provides that:

“An educational authority that operates, or proposes to operate, an educational institution in accordance with the doctrine of a particular religion may exclude applicants who are not of that religion.”

Note that this only permits discrimination against students on the basis of their religion, and not because of their sexuality (or transsexuality). This is to be welcomed and, if 51(d) (above) has been interpreted narrowly, means LGBT students are protected against discrimination in NT religious schools.

The other provision that grants special rights to religious organisations to discriminate is sub-section 40(3), in relation to accommodation:

“A person may discriminate against a person with respect to a matter that is otherwise prohibited under this Division if:

(a) the accommodation concerned is under the direction or control of a body established for religious purposes; and

(b) the discrimination:

(i) is in accordance with the doctrine of the religion concerned; and

(ii) is necessary to avoid offending the religious sensitivities of people of the religion.”

If discrimination in relation to the appointment or training of ministers of religion is already allowed under section 51(a) and (b), which would presumably include the facilities used for housing these ministers/trainees, it is difficult to see how this particular section would be justified. As a result, it should be repealed alongside section 37A.

Summary: The main religious exceptions offered under the NT Act are relatively modest when compared to some other states and territories. Provided that ‘religious observance or practice’ has been interpreted to mean religious ceremonies and little else, section 51 may not require substantial amendment.

However, there is no justification for discrimination against LGBTI employees or potential employees in religious schools, meaning section 37A should be repealed as a matter of priority. Sub-section 40(3), allowing discrimination in relation to accommodation, also appears excessively broad.

Anti-Vilification Coverage

The Northern Territory is the only jurisdiction in Australia that does not prohibit racial vilification. In which case, it is perhaps unsurprising that there are no prohibitions on vilification against LGBTI people either (the definition of ‘discrimination’ in section 20(1) does include “harassment on the basis of an attribute”, however this falls far short of the usual standard of ‘offend, insult, humiliate or intimidate’[v]).

The Government should introduce prohibitions against anti-LGBTI vilification, as well as in relation to other attributes, including race.

Michael_Gunner

Will Chief Minister Michael Gunner fix the NT Anti-Discrimination Act?

On a positive note, during this term of Parliament the Northern Territory Government released a discussion paper looking at Modernisation of the Anti-Discrimination Act. It included examination of all of the above issues (protected attributes, religious exceptions and anti-vilification coverage), with submissions due by 31 January 2018.

However, more than two years later and nothing appears to have come from this consultation. Which means that, heading into the next Northern Territory election on 22 August 2020, the NT Anti-Discrimination Act remains in desperate need of reform. Will whoever is elected by up to the challenge?

 

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Footnotes:

[i] It should be noted here that these concepts (heterosexuality, homosexuality, bisexuality and transsexuality) are not further defined in the legislation.

[ii] Section 4: “sexual orientation means a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.”

[iii] “[G]ender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

[iv] In March 2017, intersex activists from around Australia released the Darlington Statement which called for the protected attribute of ‘intersex status’ to be replaced by ‘sex characteristics’. For more information, see the OII Australia website, here.

[v] For example, sub-section 18C of the Commonwealth Racial Discrimination Act 1975 provides that:

“(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people…”

Letter to State and Territory Labor Leaders Calling for Them to Support a Binding Vote for Marriage Equality

It is now almost three months since I wrote to the Federal Opposition Leader, Bill Shorten, calling on him to take the lead on marriage equality by supporting a binding vote within the Labor Party (https://alastairlawrie.net/2015/01/24/bill-shorten-will-you-lead-on-marriage-equality/ ).

While I continue to wait for a response to that correspondence, we should remember there are other parliamentary leaders of the Labor Party in Australia, who also have a duty to stand up for the lesbian, gay, bisexual, transgender and intersex (LGBTI) members of their respective communities, and for the LGBTI members of their state and territory branches of the ALP.

The following is my letter to these leaders, asking them to support a binding vote for marriage equality in the lead-up to the National Conference in July (with a slightly more detailed letter sent to the first out parliamentary leader of a Labor Party in Australia, and the first out head of any Australian Government, ACT Chief Minister Andrew Barr).

Mr Luke Foley, MP

Leader of the NSW Opposition

Parliament House

Macquarie Street

SYDNEY NSW 2000

leader.opposition@parliament.nsw.gov.au

Monday 20 April 2015

Dear Mr Foley

PLEASE SUPPORT A BINDING VOTE IN FAVOUR OF MARRIAGE EQUALITY IN THE LEAD-UP TO THE 2015 ALP NATIONAL CONFERENCE

As you are aware, there are now approximately three months left until the 2015 National Conference of the Australian Labor Party.

One of the issues to be considered at this event is actually unfinished business from the previous National Conference, held in December 2011, and that is the position that the ALP adopts on marriage equality.

While that gathering took the welcome step of making support for marriage equality an official part of the platform, it also immediately undermined that policy stance by ensuring all MPs were to be given a conscience vote when it came before Parliament.

That decision – to ‘support’ marriage equality, but then make that support unenforceable – guaranteed that any Bill would fail in the last Commonwealth Parliament, and continues to make passage in the current Parliament extremely difficult (even with any Liberal Party conscience vote).

However, you, and the delegates to this year’s National Conference, have the opportunity to help right that wrong. And make no mistake, the conscience vote is inherently wrong, not just because of its practical impact in making legislative change unobtainable, but also because it is unprincipled, and un-Labor.

Having a conscience vote on something like marriage equality, which is a matter of fundamental importance for many members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, says that our human rights are optional, our equality is optional.

A conscience vote makes it clear that homophobia, biphobia, transphobia and intersexphobia are acceptable, that the second-class treatment of our relationships is officially condoned, that Labor Party MPs are free to treat LGBTI Australians as ‘lesser’ simply because of who we are. In essence, a conscience vote on marriage equality is unconscionable.

A non-binding vote on marriage equality is also ‘un-Labor’ because it is contrary to the principles of collective organising upon which the party is founded. The idea of solidarity is supposed to reflect core philosophy, not simply act as an empty slogan, and definitely not something that is abandoned simply because some caucus members cannot abide the thought LGBTI people might enjoy the same rights that they do.

A conscience vote on this issue, from a party that adopts binding votes on nearly everything else (from refugee policy to metadata and almost all things in between), also makes it difficult for the Australian community, and the LGBTI community in particular, to take the platform position in favour of marriage equality seriously.

This is something that can, and must, be changed at this year’s National Conference, given only it has the power to introduce a binding vote in favour of marriage equality for all ALP MPs.

Acknowledging that there will be groups both inside and outside the ALP who will strongly oppose any moves to support full LGBTI equality, achieving a binding vote on marriage equality will be difficult, and therefore requires the support of parliamentary leaders within the party who are willing to do just that, to ‘lead’.

Which makes the question at the heart of this letter: as leader of the NSW parliamentary Labor Party, will you help lead on marriage equality?

It’s time for you, and the other state and territory leaders, to use the influence of your positions to help support a binding vote in favour of marriage equality, thereby declaring once and for all that LGBTI human rights are not optional, that LGBTI equality is absolutely not optional.

Doing so would signal to the many hundreds of LGBTI members of the NSW ALP, and the many, many thousands of LGBTI members of the NSW community, that the Labor Party will stand up for all people, irrespective of sexual orientation, gender identity or intersex status.

Adopting a binding vote for marriage equality would send an incredibly powerful message, showing that the modern Labor Party is a genuinely inclusive, and genuinely progressive, political movement, and one that is fit to lead in the 21st century – and simultaneously show how backwards, and out-of-touch, the Liberal and National Parties are on this issue.

In short, the option to support a binding vote on marriage equality is full of opportunity, with multiple benefits and few, if any, adverse consequences. I sincerely hope it is an opportunity you, and other state and territory Labor leaders, are willing to grasp, and grasp firmly.

If you do, you can help make marriage equality a genuine possibility in 2016 or early 2017, rather than something which will continue to be delayed until 2018, 2019 or even into the 2020s.

For the benefit of my fiancé Steve and myself, and the thousands of other LGBTI-inclusive couples who are still waiting for the same right to marry which other couples can simply take for granted, please support a binding vote in favour of marriage equality at the 2015 National Conference, and help make our long-overdue weddings a reality.

Sincerely

Alastair Lawrie

NSW Opposition Leader Luke Foley, who announced he supported marriage equality in February. Will he now back that up with support for a binding vote to help make marriage equality a reality?

NSW Opposition Leader Luke Foley, who announced he supported marriage equality in February 2015. Will he now back that up with support for a binding vote within the Labor Party to help make marriage equality a reality?

Additional letters sent to:

The Hon Daniel Andrews Premier of Victoria Level 1, 1 Treasury Place East Melbourne VIC 3002 daniel.andrews@parliament.vic.gov.au

The Hon Annastacia Palaszczuk MP Premier of Queensland Level 15, Executive Building 100 George Street BRISBANE QLD 4000 thepremier@premiers.qld.gov.au

The Hon Mark McGowan MLA Leader of the WA Opposition Parliament House Perth WA 6000 leader@loop.wa.gov.au

The Hon Jay Weatherill MP Premier of South Australia GPO Box 2343 ADELAIDE SA 5001 Online contact form: http://www.premier.sa.gov.au/index.php/contact

The Hon Bryan Green MLA Leader of the Tasmanian Opposition House of Assembly Parliament House Hobart TAS 7000 bryan.green@parliament.tas.gov.au

Mr Andrew Barr MLA ACT Chief Minister GPO Box 1020 Canberra ACT 2601 barr@act.gov.au

Mr Michael Gunner MLA Leader of the NT Opposition GPO Box 3700 Darwin NT 0801 opposition.leader@nt.gov.au

* And a very rapid response from the ACT Chief Minister Andrew Barr, confirming his support for a binding vote:

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