On Thursday, it was reported that Attorney-General Michaelia Cash has written to the Australian Law Reform Commission, asking for ‘detailed drafting’ to protect LGBT children from discrimination in faith-based schools.
‘It is … the government’s position that no child should be suspended or expelled from school on the basis of their sexuality or gender identity,’ wrote Cash.
There are at least six reasons why this seemingly positive expression of support for LGBT kids is a bitterly disappointing statement of hollow nothingness.
First, we’ve heard this all before. On 11 October 2018 the Prime Minister, Scott Morrison, stated unequivocally: ‘We do not think that children should be discriminated against’. He promised to amend the Sex Discrimination Act to protect LGBT students in religious schools against discrimination before the end of that year.
That was more than 3 years ago. 1,137 days to be exact (and yes, I’m counting). In that time, the Morrison Government has failed to do anything concrete to implement its promise.
Second, the Attorney-General was writing to ask the ALRC to do what it was already tasked to do by her predecessor, Christian Porter, back in April 2019. His original terms of reference requested the Commission to review religious exemptions, ‘having regard to… the importance of protecting the rights of all people, and children in particular, to be free from discrimination in education.’
More than 30 months later, the new Attorney-General is trying to spin a request for ‘detailed drafting’ as being something new. Exactly how that varies from ordinary ALRC recommendations is a distinction without a difference.
Third, we don’t need ‘detailed drafting’. We know how to protect LGBT students in religious schools against discrimination. Four jurisdictions – Queensland, Tasmania, the ACT and NT – have already done so. Tasmania has been protecting LGBT kids, successfully, for more than 23 years. The amendments required are simple. There’s no need to reinvent the wheel.
If the ALRC reports in 2023, and the Government finally takes action that same year (both of which remain big ifs), it could end up taking them 5 years to draft 70 words. At just over one word per month, they’re certainly pacing themselves.
Fifth, we can see from the time and energy expended on the Religious Discrimination Bill where the Government’s real priorities lie.
We’ve already gone through two rounds of public exposure drafts on the ‘religious freedom’ Bills package (which actually comprises three separate Bills). We’ve had 157 pages of draft legislation, before we even get to the third and final version(s) next week.
The drafting effort that has gone into the Religious Discrimination Bill demonstrates what happens when a Government wants to get something done. The comparative lack of effort in drafting straight-forward amendments to protect LGBT kids reveals what happens when they don’t.
Sixth, based on Senator Cash’s correspondence, it’s not even clear whether the Government supports ending all discrimination against LGBT students, or only removing the ability of religious schools to suspend or expel them. If it’s just the latter, then other forms of mistreatment would continue to be permitted, and the harm they experience will go on.
A child who was in Year 7 when the Prime Minister first promised to protect them from discrimination is on track to finish high school before he keeps that promise. That’s an entire generation of LGBT kids abandoned because they’re not considered a priority by their own Government.
LGBT kids don’t need more ‘detailed drafting’. They need action. What do we have instead? The Attorney-General sending the emptiest of gestures to the Australian Law Reform Commission, asking them to do something they’ve already been tasked to do.
It is a fig-leaf trying to cover up years of the Morrison Government’s inaction. But nothing can hide their lack of care about this issue. Because if they cared, it would have been fixed years ago.
The tragedy of it all is that, for as long as the Government prevaricates and obfuscates, vulnerable children are left exposed to abuse and mistreatment, discrimination, suspension and even expulsion, just because of who they are.
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There is a *lot* of news happening at the moment. In the midst of the COVID-19 pandemic, and now during COP26 – and with it humanity’s last best chance to address the existential threat of global heating – it can be difficult to keep track of other serious challenges to our human rights.
In Australia, one of those is the Morrison Liberal/National Government’s proposed Religious Discrimination Bill, which they remain committed to introducing into Commonwealth Parliament before the end of 2021.
While most people outside the Government still don’t know what form the final Bill will take (unlike a select few, like religious fundamentalists including the Australian Christian Lobby, with whom the Government has been negotiating – more on that later), we did learn something new last week:
Attorney-General Michaelia Cash is seeking to avoid the scrutiny of a Senate Inquiry into the Religious Discrimination Bill.
‘Attorney-General Michaelia Cash signalled the government would ramp up pressure on Labor to not hold a Senate inquiry because the government “has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables”.’
This position – Attorney-General Cash wanting to avoid the usual scrutiny of a Senate Inquiry – was then confirmed during Senate Estimates last Tuesday (26 October), via the following exchange with Greens Senator Janet Rice:
Senator Rice: … Given the far-reaching impacts of this proposed legislation, will you commit to having a full and thorough Senate inquiry into the bill once it’s introduced?
Senator Cash: That’s a decision for the Senate.
Senator Rice: Is the government committed and supportive?
Senator Cash: That is a decision for the Senate.
Senator Rice: It will be a decision for the Senate, but will the government be supporting having a Senate inquiry into this legislation?
Senator Cash: Again, that is a decision for the Senate.
Senator Rice: Will the government support that by helping to provide the numbers in the Senate?
Senator Cash: If the Senate determines that there should be an inquiry then there will be an inquiry.
Senator Rice: Do you think that there should be an inquiry?
Senator Cash: That is a decision for the Senate.
Senator Rice: Do you think that there should be an inquiry given it is your legislation?
Senator Cash: The normal process would be that a bill goes to an inquiry.
Count them: that’s six separate opportunities for the Attorney-General to confirm the Government would support a Senate Inquiry into the Religious Discrimination Bill. And six refusals to do so.
The closest Cash came was stating it would be a ‘normal process’ to hold such an inquiry, not that the Government would agree to one.
Why does it matter?
This isn’t just a technical question of whether the Senate follows ‘normal process’ in holding an inquiry. Whether or not the Senate conducts an investigation into the Religious Discrimination Bill really matters, for two key reasons:
First, the Religious Discrimination Bill has the potential to affect the everyday lives of *all* Australians, religious and non-religious alike, including women, lesbian, gay, bisexual transgender and intersex (LGBTI) people, people with disability, divorced people and people in de facto relationships.
We know this because of the content of the first two Exposure Draft Bills, released in August and December 2019 respectively, with the most recent of those including the following features:
Allowing health practitioners, including doctors, nurses, pharmacists and psychologists, to ‘conscientiously object’ to providing health services – even where this has disproportionate adverse impacts on particular groups (for example, refusing to provide puberty blockers, to the detriment of trans and gender diverse young people), and
Allowing people to make offensive, humiliating, intimidating, insulting or ridiculing comments against women, LGBTI people, people with disability and even people of minority faiths, in all areas of public life, as long as those comments are motivated by religious belief.
Both the right to access health care, and the ability to go about your daily life – in workplaces, and schools and universities, and community services, and public transport, and other public spaces – without being subjected to vile comments on the basis of who you are, are at risk.
Legislation which carries such serious consequences deserves the highest level of scrutiny, and that must include a Senate Inquiry.
Second, the Religious Discrimination Bill has the potential to be the biggest change to Commonwealth anti-discrimination law for almost four decades.
Since the passage of the Racial Discrimination Act in 1975, and Sex Discrimination Act in 1984, the basic framework of Commonwealth anti-discrimination laws has remained relatively consistent.
This includes the general tests for what constitutes direct and indirect discrimination, and in what circumstances religious organisations are permitted to discriminate. It also includes the ‘complementary’ structure of Commonwealth, state and territory anti-discrimination laws, where they operate alongside each other, without seeking to override the other.
The Disability Discrimination Act 1992, Age Discrimination Act 2004, and even the addition of sexual orientation, gender identity and intersex status as protected attributes in the Sex Discrimination Act in 2013, did not fundamentally alter these arrangements.
However, the Second Exposure Draft Religious Discrimination Bill marks a radical departure from these precedents.
For example, the ability to make offensive, humiliating, intimidating, insulting or ridiculing ‘statements of belief’ is included in a provision (clause 42) which limits the operation of all other anti-discrimination legislation: Commonwealth (including the Fair Work Act 2009), and state and territory (singling out the Tasmanian Anti-Discrimination Act 1998 in particular).
In practice, this would be the first time the Commonwealth Government directly sought to override the anti-discrimination laws of other Australian Governments.
The ‘conscientious objection’ provision (in clause 8) discussed earlier also involves a significant departure from standard practice. That is because it seeks to amend how the test for indirect discrimination operates, in favour of health practitioners who wish to discriminate in the types of services they provide.
One of the Religious Discrimination Bill’s other, more-infamous provisions – the so-called ‘Folau clause’ (also in clause 8) – is similarly-designed, altering the test for indirect discrimination to ‘stack the decks’ in favour of employees who make otherwise discriminatory statements outside core business hours.
Meanwhile, its proposed ‘religious exceptions’ (in clause 11, and scattered elsewhere throughout the Bill) dramatically re-write the existing scope of these special privileges. Not only do they apply to an expanded range of organisations, but the two different tests for whether a ‘religious exception’ applies are *both* far easier for organisations to use than the tests in the Sex Discrimination Act (section 37) and Age Discrimination Act (section 35).
Legislation which seeks to override state and territory anti-discrimination laws for the first time, and which significantly departs from existing practice in the test for indirect discrimination and significantly expands the scope and test for religious exceptions, deserves the highest level of scrutiny. That must include a Senate Inquiry.
What is the Government’s excuse?
Attorney-General Cash did not attempt to either clarify, or justify, the Government’s opposition to sending the Religious Discrimination Bill to an inquiry in her exchange with Senator Rice.
Which means we are left with her quote in the Sydney Morning Herald, namely that she does not support an inquiry: because the government “has conducted two rounds of public consultation on draft legislation, and met face to face with over 90 stakeholders in a series of roundtables”.
This rationale does not withstand the application of even the slightest skerrick of scrutiny.
Yes, the Government released two Exposure Draft Bills, which were open for public submissions. And yes, both the Bills, and associated submissions, have been published (see the Attorney-General’s Department website for the First Exposure Draft Bills here, and for the Second Exposure Draft Bills here.)
However, unlike a Senate Inquiry, there is little transparency about these processes:
There is no report document summarising feedback from either process
There is no public list of attendees at the roundtables mentioned by Senator Cash, and
There is no transcript of the evidence provided by these witnesses to the Government.
Also, unlike a Senate Inquiry, there was a lack of independence to these processes:
They were conducted by the Attorney-General’s Department, acting on the instructions of their Minister
Attendees of the roundtables were presumably selected by, or with the close involvement of, the Attorney-General, and
There was no opportunity for Opposition, Greens and cross-bench Senators to interrogate the evidence being provided to the Government.
In short, Government-run consultation processes are no substitute for the independence and transparency of a Senate Inquiry.
But there is an even bigger problem with Attorney-General Cash’s attempted justification for not supporting a Senate Inquiry into the Religious Discrimination Bill – and that is the First and Second Exposure Draft Bills were released in August and December 2019 respectively. That is more than, and just under, two full years ago.
Indeed, submissions in response to the Second Exposure Draft Bill closed in January 2020, less than a week after the first case of novel coronavirus was detected in Australia. A *lot* has changed in the intervening 21 months, including the Attorney-General (with Michaelia Cash replacing former Attorney-General Christian Porter in March 2021).
It is highly likely some aspects of the Religious Discrimination Bill will have changed in that period too – perhaps for the better, maybe for the worse.
Most members of the Australian community, and the community groups which represent them, will not be aware of those changes until the final Bill is introduced to Parliament. They deserve the opportunity to comment on the Bill’s final provisions, not past versions that have potentially been superseded.
Of course, some groups *are* aware, and have been closely involved in negotiations about the Bill’s contents for the past two years. This includes religious fundamentalists, such as the Australian Christian Lobby (ACL).
Indeed, the same Sydney Morning Herald article in which Cash argued against a Senate Inquiry was primarily about the ACL revealing the final Religious Discrimination Bill will include some version of the ‘Folau clause’.
The article is titled ‘Christian Lobby boasts religious freedom laws will include ‘Folau clause’, and goes on to quote ACL boss Martyn Iles:
‘Mr Iles said the ACL was “very, very strongly applying pressure from a grassroots level and from our lobbying level to ensure the Folau clause remains in the bill. It was fought tooth and nail, it was really at risk for a long time there[. O]ne great win is that the final draft of the bill will contain a Folau clause. It’s not perfect, but it’s not bad. And it does exist within the bill.”’
The Government’s consultations with the ACL were not denied by Attorney-General Cash, once again at Senate Estimates:
Senator Rice: Minister, we’ve seen media reports – and I’m tabling the media report that I was reading last week, that the Australian Christian Lobby say that they’re in the final days of negotiations with the Prime Minister’s office over the bill. The ACL are claiming they are ‘part of a coalition of faith leaders who jointly have been negotiating very closely with the Attorney-General, and with the Prime Minister’s Office’. Is that an accurate summation of what’s been happening with the negotiations on the bill?
Senator Cash: I’ve been negotiating far and wide in relation to the bill.
Senator Rice: Who else have you been negotiating with over the last month, for example?
Senator Cash: I’ve been negotiating with stakeholders across the board. I would take on notice whether or not they want their names provided, though, with all due respect to them. Some actually don’t want their name provided formally.
Senator Rice: Could I take on notice a list of all the stakeholders, as far as they are willing to be named?
Senator Cash: I’m more than happy to do that, absolutely. I need to go to them to get their permission, but-
Senator Rice: Can you name some others, other than those that will be part of this coalition of faith leaders?
Senator Cash: I would prefer not to, in the event they don’t want their names publicly disclosed as having discussions with me, but I’m more than happy to take it on notice for you.
Senator Rice: Have you been negotiating with any of the human rights organisations or LGBTIQ+ organisations?
Senator Cash: Yes. They’re a very important stakeholder.
This exchange is deeply unsatisfactory, for a number of reasons.
The Attorney-General was unwilling to divulge the name of *any* stakeholder with whom she had been negotiating, or even consulting, over the biggest change to Commonwealth anti-discrimination law in almost four decades.
Even though Cash eventually agreed to take this question on notice (meaning she will need to respond in writing in coming months), this will unlikely be revealed until after the Bill itself has been introduced, and even then stakeholders who wish to remain secret will apparently have their names withheld from the public.
Cash’s answers also do not reveal the level of engagement with each group. For example, it is possible for the Government to be ‘negotiating’ with religious fundamentalists about the text of the Bill, but only ‘consulting’ with other groups in high-level or non-specific terms.
The final answer is also worrying; Cash uses the singular form (‘They’re a very important stakeholder’) in response to a question about negotiating with ‘human rights organisations or LGBTIQ+ organisations’.
This could imply she may only be meeting with one such body, and it is unclear who that would be, especially when there is no generalist national LGBTIQ+ organisation that is accountable to the LGBTIQ+ community (LGBTIQ+ Health Australia is the closest there is although, as the name suggests, its primary focus is health).
In fact, there are a wide range of organisations that either represent particular sections of the community (like Intersex Human Rights Australia), or advocate on LGBTIQ+ issues generally (such as Just.Equal Australia and Equality Australia), as well as several state and territory membership-based LGBTIQ organisations. Senator Cash should be ‘negotiating’ with all of them.
All of this is to say that the broader community has almost no idea who has been meeting with Attorney-General Cash about the Religious Discrimination Bill, or how much access and influence each organisation has been able to achieve. Based on her evidence to Senate Estimates last week, it is possible we will never be permitted to know.
Which simply confirms that the *only* way there can be a truly independent, and transparent, consultation process – where the names of witnesses are published, hearings are held in public with everyone able to know who has been advocating for what, as well as an opportunity for all Parties to interrogate those views – is for there to be a Senate Inquiry.
What is Labor’s position?
It remains unclear what Labor’s position is on whether there should be a Senate Inquiry into the Religious Discrimination Bill.
Shadow Attorney-General Mark Dreyfus is quoted in the same Sydney Morning Herald article as Senator Cash, although he does not address this issue (to be fair, he may not have been asked about it, or he may have provided quotes on this topic that were not included).
Of more concern is the lack of public position on this by Labor in the period since then. I am not aware of any criticism from ALP MPs or Senators about Cash’s push to avoid the scrutiny of a Senate Inquiry, nor did any Labor Senators on the Estimates Committee alongside Senator Janet Rice join her in challenging this position.
It is possible the Labor Opposition will push for a Senate Inquiry when the final parliamentary sitting fortnight of the year starts on Monday 22 November (which is presumably when the Government will introduce the Religious Discrimination Bill).
However, it is also possible that the ALP, under Leader Anthony Albanese, does not support referral to a Senate Inquiry. If so, their rationale for doing so would be just as weak as Attorney-General Cash’s.
In the Opposition’s case, they may seek to avoid any criticism they are ‘holding up’ so-called ‘religious freedom’ laws in the lead-up to the federal election, due in the first half of 2022 (even though it is the Morrison Government’s own delays that have led to this timing).
But that cannot be justification for not closely scrutinising the biggest change to Commonwealth anti-discrimination laws in nearly four decades. Nor would it excuse failing to support at least an inquiry into legislation that is a serious threat to the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, even people of minority faiths.
If Labor fails to support a Senate Inquiry into the Religious Discrimination Bill in an attempt to avoid being politically ‘wedged’, then it seems highly likely they would subsequently also just ‘wave through’ the Government’s legislation.
That course of events would be reminiscent of the Labor Opposition’s actions under then-Leader (and now One Nation NSW Leader) Mark Latham in supporting John Howard’s Bill banning same-sex marriage in 2004. A ban which took a long and painful 13 years to overturn.
If Albo does not support a Senate Inquiry into the Religious Discrimination Bill, and instead simply votes for the legislation, it would be the biggest display of Labor spinelessness on LGBTI rights since Latham revealed himself to be an invertebrate on marriage equality.
Why there MUST be a Senate Inquiry into the Religious Discrimination Bill
I know that, for some of you, whether or not there is a Senate Inquiry on the Religious Discrimination Bill might seem like a fairly technical discussion.
I hope I’ve convinced you that’s not the case, and shown why holding a Senate Inquiry is essential to independently and transparently scrutinise the biggest change to Commonwealth anti-discrimination law in 37 years.
And why we need this investigation to shine a light on any proposals that undermine the rights of women, LGBTI people, people with disability, divorced people and people in de facto relationships, and even people of minority faiths.
Of course, a Senate Inquiry is no guarantee this harmful legislation (if that’s what it turns out to be, because most of us have yet to see the final version) is ultimately defeated, or that its worst aspects are amended or at least ameliorated. It may still end up being passed.
But it would be a terrible sign if the Government is successful in avoiding a Senate Inquiry.
Perhaps think of it like this: if the Government was proud of this Bill and its key features, if it thought it could stand up to the rigour of independent and transparent consideration by a multi-partisan Committee, then it would gladly agree to it.
That Attorney-General Cash has publicly argued against doing so, suggests the final Religious Discrimination Bill will be a fundamentally bad law.
Instead, it seems they hope to ram it through Parliament, either late this year, or early next year, while everyone is distracted by other news: COVID-19, COP26 and global heating, the impending election campaign itself, and plenty more besides.
If they are successful, then the first time some people are aware it has even happened will be when they are refused a vital health care service. At their doctor. Or by their nurse. Or pharmacist. Or psychologist.
Or when they are subjected to vile comments about who they are. In their workplace. Or at their school or university. Or at another community service. Or on public transport.
Or any other public space in which making offensive, humiliating, intimidating, insulting or ridiculing comments about other people has been permitted as long as it’s motived by religious belief.
Pathetic: adjective, ‘unsuccessful or showing no ability, effort, or bravery, so that people feel no respect’
Last week, the Senate witnessed one of the most pathetic votes by any Government in recent memory: on Wednesday 1 September, Liberal and National Party Senators voted against amendment sheet 1427 to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.
As that description suggests, those amendments, moved by the Australian Greens, were largely technical in nature. All they did (or at least would have done, had they passed), was ensure the terms gender identity and intersex status were included in exactly the same sections of the Fair Work Act 2009 (Cth) which cover other protected attributes, such as race, sex, disability and sexual orientation.
That includes provisions which protect workers against adverse action (section 351(1)) and unlawful termination (section 772(1)(f)) on the basis of who they are, meaning the amendments would have guaranteed trans, gender diverse and intersex employees the exact same ability to access the Fair Work Commission as women, people with disability and even lesbians, gay men and bisexuals. [For more background on this issue, see ‘Unfairness in the Fair Work Act’]
As well as being largely technical, they also should have been entirely uncontroversial. Gender identity and intersex status are already protected attributes in the Sex Discrimination Act 1984 (Cth). The amendments were simply intended to bring these two pieces of legislation into closer alignment.
Indeed, the Greens changes in sheet 1427 directly tied the proposed definitions in the Fair Work Act back to the Sex Discrimination Act:
‘gender identity has the same meaning as in the Sex Discrimination Act 1984.
intersex status has the same meaning as in the Sex Discrimination Act 1984.’[i]
And yet, these largely technical and entirely uncontroversial changes were still rejected by the Coalition Government. Together with One Nation, their votes were enough for the amendments to be voted down, leaving the rights of trans, gender diverse and intersex workers in doubt.
It seems like anything that advances the rights of LGBTI Australians, even if just an inch, will inevitably be rejected by the Morrison Liberal/National Government. Which is, frankly, pathetic.
Antipatheic: adjective, ‘showing or feeling a strong dislike, opposition, or anger’
Perhaps the most depressing aspect of this situation is that the 2021 Coalition were voting against the protection of groups which the Coalition had actually supported eight years earlier.
In 2013, the Liberal/National Opposition, under the leadership of Tony ‘no friend of the gays’ Abbott, voted in favour of the then-Labor Government’s historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.
That legislation inserted gender identity and intersex status into the Sex Discrimination Act in the first place. But, eight years later, the Coalition refused to back the inclusion of the exact same terms, with the exact same definitions, in the Fair Work Act.
Think about that for a second. The current Government is more opposed to the rights of trans, gender diverse and intersex Australians than the Abbott Opposition was back then.
The ‘strong dislike, opposition or anger’ towards trans rights from notoriously transphobic Senators like Claire Chandler has overwhelmed any semblance of support from other, more sympathetic sections of the Morrison Government.[ii]
The Coalition’s antipathy to trans rights also seems to have overwhelmed their ability to make political judgements that benefit them.
If they had chosen to vote for these changes – the most straight-forward of amendments, merely introducing consistency in the groups protected under the Sex Discrimination and Fair Work Acts – moderate Liberal Senators, and Liberal candidates for socially-progressive electorates, could have pointed to this outcome as evidence they care about LGBTI rights.
Instead, by voting against these amendments, everybody can see that they don’t care, about anybody whose gender identities or sex characteristics are different to societal expectations.
The Government’s reasons for not supporting these amendments also demonstrate the simultaneously pathetic and antipathetic nature of their opposition. Attorney-General, Senator Michaelia Cash, made the following comments in relation to the Greens’ amendments:
‘The government will also be opposing the amendment moved by the Australian Greens. The government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act prohibits discrimination on these grounds in a range of areas of public life. The primary purpose of this bill is to implement the government’s commitments in its response to the Respect@Work report and to implement, as a matter of urgency, measures to strengthen national laws to better prevent and respond to sexual harassment in Australian workplaces. Discrimination on the basis of gender identity and intersex status is already prohibited in the Sex Discrimination Act…’
Cash raises a number of different arguments there. Unfortunately, none of them are compelling upon closer inspection.
For example, her attempt to declare that the primary purpose of the legislation is ‘to implement the government’s commitments in its response to the Respect@Work report’, might be an explanation of why they did not include these changes in the original Bill. It is not a justification for voting against these changes when they are moved by others.
Even worse, Cash’s argument is directly undermined by the words of her own Department, exactly one year-to-the-day beforehand. In response to my letter to then-Attorney-General Christian Porter calling for him to address this very issue, I received a reply dated 1 September 2020 from an Assistant Secretary in the Attorney-General’s Department, which included the following paragraph:
‘I note the discrepancies you raise between the language in the Fair Work Act 2009 and the Sex Discrimination Act 1984. At this point in time, the Australian Government has not indicated an intention to amend the Fair Work Act 2009 to explicitly include gender identity or intersex status as grounds for lodging an adverse action or unlawful termination application. In saying this, however, you may be interested to know that the Australian Government is currently considering its response to a number of recommendations made in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report. This process provides scope for the issues you have raised here to be considered further in the implementation of any proposed recommendations.’ [emphasis added]
Not only did the Department acknowledge this legislative gap, but they highlighted the Respect@Work response as an opportunity for this issue to be resolved. It was the Government itself, and possibly even Michaelia Cash herself or her predecessor Christian Porter, who actively decided to ignore, rather than address, this discrepancy.
Cash’s other arguments are just as flawed. She mentions not once, but twice, that discrimination on the basis of gender identity and intersex status is already prohibited under the Sex Discrimination Act. Which, well, yes, of course it is. As is discrimination on the basis of sex and sexual orientation.
The point is, while sex and sexual orientation are also explicitly included in the Fair Work Act, gender identity and intersex status are not. Meaning women, lesbians, gay men and bisexuals have clear rights to access the Fair Work Commission, while trans, gender diverse and intersex workers do not. That inequality of access is exactly the issue the Greens’ amendments were intended to address, amendments the Government chose to reject.
Which reveals the lie at the heart of Cash’s introductory comment, that ‘[t]he government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status.’
No. No, you don’t. If you did, you would have voted for these amendments.
Of course, for most people paying attention to Australian politics these days, the fact the Coalition Government doesn’t really give a shit about LGBTI Australians is no surprise.
Last Wednesday’s vote by Liberal and National Party Senators against amendments to explicitly include trans, gender diverse and intersex workers in the Fair Work Act wouldn’t even make a list of the top five worst things the Abbott/Turnbull/Morrison Government has done in relation to LGBTI rights over the past eight years.
[A list that, from my perspective, would include (in no particular order):
Holding an unnecessary, wasteful and divisive public vote on our fundamental human rights
Defunding an evidence-based program against anti-LGBTI bullying in schools
Detaining LGBTI people seeking asylum in countries that criminalise homosexuality
Failing to implement the recommendations of the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People (allowing these human rights violations to continue to this day), and
Breaking its promise to protect vulnerable LGBT kids against abuse and mistreatment by publicly-funded religious schools.]
It probably won’t even be the worst thing the Coalition Government does to LGBTI Australians this year, with Cash also committing to introduce the recently-revived Religious Discrimination Bill before the end of 2021.
This is legislation that, based on the Second Exposure Draft, would encourage anti-LGBT comments in all areas of public life, as well as making access to essential healthcare much more difficult, among other serious threats. [For more background on this issue, see ‘The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’]
Nevertheless, just because this isn’t the worst thing they’ve ever done, doesn’t mean their vote on Wednesday was any less abhorrent.
And just because I earlier described these amendments as largely technical in nature, doesn’t mean they were any less important.
As well as guaranteeing access to the Fair Work Commission, these amendments were an opportunity for the Government, and Parliament more broadly, to reaffirm that trans, gender diverse and intersex Australians should enjoy the same rights as everyone else.
In rejecting the Greens’ amendments to add gender identity and intersex status to the Fair Work Act, the Government repudiated this fundamental principle.
The Senate vote last Wednesday perfectly encapsulates the Morrison Government’s pettiness, and the meanness of its approach, when it comes to LGBTI rights.
How pathetic in their lack of principle, and basic decency.
How antipathetic to the human rights and dignity of their fellow Australians.
In roughly equal measure.
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[i] Earlier amendments (sheet 1373) that would have introduced the protected attribute of sex characteristics, rather than intersex status, in the Fair Work Act to reflect both best practice and the views of intersex advocates such as Intersex Human Rights Australia, failed with both the Government and Labor expressing their opposition. Sheet 1427, which included intersex status based on the definition in the Sex Discrimination Act was then moved by the Greens because it was seen as being entirely uncontroversial and therefore more chance of succeeding.
[ii] NSW Liberal Senator Andrew Bragg did refer to the issue of trans, gender diverse and intersex inclusion in the Fair Work Act in his second reading debate speech, expressing support for it being addressed at some point, but did not find the courage to cross the floor on the amendment itself.