Victoria’s Equal Opportunity Amendment (Religious Exceptions) Bill 2016

Update: 15 January 2017

 

Unfortunately, this legislation was voted down by the Victorian Legislative Council on 6 December 2016.

 

As reported by The Age here (‘Coalition and conservative crossbenchers unite to vote down equal rights bills’), the Liberal and National Parties rejected the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, describing it as an attack on ‘religious freedom’.

 

Of course, it was nothing of the sort – instead it was a modest (some might argue too modest) reform that would have simply required religious schools and other religious bodies to demonstrate that any discrimination against LGBT employees was because of an ‘inherent requirement’ of the relevant job. Nothing less, and nothing more.

 

But even that was too much for Coalition MLCs, meaning lesbian, gay, bisexual and transgender teachers at religious schools, and LGBT employees at other religious organisations, can continue to be discriminated against for at least another two years, solely because of who they are and irrespective of the responsibilities of the actual role they are performing.

 

Hopefully, Victoria’s LGBTI community remembers this shameful sell-out by the Liberal and National Parties when they cast their ballots on 24 November 2018 – and that the next Parliament strengthens the state’s LGBTI anti-discrimination laws as a matter of priority in early 2019.

 

Original Post:

 

Ten days ago I wrote about the first of two LGBTI law reforms put forward by the Andrews Labor Government that are currently before the Victorian Parliament – the Births, Deaths and Marriages Registration Amendment Bill 2016.

This post will discuss the second – the Equal Opportunity Amendment (Religious Exceptions) Bill 2016.

As the title suggests, this Bill will amend the religious exceptions currently contained in the Equal Opportunity Act 2010, making it more difficult, in certain circumstances, for religious bodies and schools to discriminate against employees on the basis of their sexual orientation or gender identity[i].

It does this by reintroducing the ‘inherent requirements test’ for employment by religious bodies or schools, which was part of the Act as passed in 2010, but which was subsequently repealed by the Baillieu Liberal-National Government in 2011 before it commenced operation.

This test is set out in clauses 3 and 4 of the Bill, which would amend the current exceptions applying to religious bodies and religious schools featured in sections 82 and 83 respectively:

“(3) Nothing in Part 4 applies to anything done in relation to the employment of a person by a religious body where-

(a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and

(b) the person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that the person does not meet that inherent requirement.

(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).”[ii]

As you can see from this proposed wording, these are very modest changes. All the Bill does is to remove the ‘blanket’ ability for religious bodies and schools to discriminate against all employees on the basis of these attributes, replacing it with a slightly narrower ability whereby, in order to discriminate, the body or school must show that such discrimination is required because of the particular position involved.

As described by Attorney-General Martin Pakula in his second reading speech:

“A large number of people are employed by or seek to be employed by religious bodies and schools in Victoria, in a range of different positions. In these circumstances, it is fair to ask these organisations to demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute…

“What the test will do, and appropriately so, is require those organisations that do seek to discriminate in employment on religious grounds to demonstrate the necessary connection between their particular religious beliefs and the need to discriminate.”

pakulamartin58250

Victorian Attorney-General Martin Pakula

Despite the extremely modest nature of the Bill, it has nevertheless attracted strong opposition from the Australian Christian Lobby[iii] and the Liberal and National Opposition, meaning that, although it has cleared the Legislative Assembly where the Government has the numbers, it is unclear whether it will be passed in the Legislative Council where the Government does not, and where it is expected to be debated later this week (with Victorian Parliament sitting from Tuesday 11 October).

Given this, I have sent a short email to all members of the Victorian upper house, encouraging them to pass this Bill, with the text included at the end of this post.

Before we get to that, however, an important caveat. Regular readers of this blog would be aware that I am opposed to religious exceptions beyond those that are necessary for the appointment of religious office-holders, and for the observance of religious ceremonies.

Indeed, these views formed part of my criticisms of the Victorian anti-discrimination framework, expressed earlier this year in my post What’s Wrong With Victoria’s Equal Opportunity Act 2010?[iv]

On this basis, I would obviously support amendments to the religious exceptions contained in the Act that go beyond what has been proposed by the Andrews Labor Government. This would, at the very least, include extending the ‘inherent requirement test’ to protect those people accessing services, including education, from these religious bodies and schools, in addition to employees.

However, we have already seen an unsuccessful attempt by the Victorian Government, this term, to restrict the rights of religious bodies to discriminate against people accessing services – it sought to prevent discrimination against same-sex couples by religious adoption agencies as part of the broader introduction of adoption equality.

Those particular amendments to religious exceptions were defeated in the Victorian Legislative Council, while the overall reform passed.

In this context, it is difficult to see how any amendments to religious exceptions that go further than those currently proposed would be passed by the upper house[v]. Indeed, the fate of the narrow changes that are contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 still seems precarious.

As a result, I have chosen to send this short email calling for these reforms to be passed, as a minimum standard, and in the hope that more comprehensive changes may be able to be made by a subsequent parliament, one where (hopefully) the influence of the extreme right is less powerful[vi].

**********

Monday 10 October 2016

Dear Member of the Victorian Legislative Council

Please Support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016

I am writing to call on you to support the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 when it comes before the Legislative Council.

This Bill is an important reform that will better protect lesbian, gay, bisexual and transgender (LGBT) employees, and prospective employees, from discrimination that has absolutely nothing to do with their ability to do their jobs.

As noted by Attorney-General Martin Pakula in his second reading speech, these reforms simply ask religious bodies and schools to “demonstrate the necessary connection between their religious beliefs and principles, and proposed discrimination in employment because of an individual’s personal attribute.”

These are modest changes, and it is difficult to see how the introduction of an ‘inherent requirement test’ can be argued against.

In practice, voting against the reforms contained in the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 is effectively saying that LGBT people can be discriminated against simply because of their sexual orientation or gender identity, even where there is absolutely no reason why they cannot perform a particular role.

I do not believe such an extreme ideological position is sustainable in 2016. I sincerely hope you agree, and in doing so, vote for this Bill.

Please do not hesitate to contact me, at the details provided below, should you have any questions, or wish to clarify any of the above.

Sincerely,

Alastair Lawrie

Footnotes:

[i] Noting that intersex status is not a protected attribute under Victorian law.

[ii] The wording of the amendment in relation to religious schools is largely similar.

[iii] Media Release, Is this kind of Government interference really warranted?, 1 September 2016.

[iv] Also expressed through my Submission to Victorian Greens Equal Opportunity Amendment (LGBTI Equality) Bill 2016.

[v] Perhaps the only complementary change that stands some chance of success in the current political environment would be the introduction of a provision requiring religious bodies and schools seeking to use the ‘inherent requirement exception’ to advertise the fact it will discriminate against LGBT employees with respect to particular positions, rather than simply asserting this ability as part of any defence to discrimination proceedings. However, determining whether such an amendment would be passed is best left to Victorian LGBTI advocates.

[vi] In drafting this email I have been careful to avoid language that rules out the need for further reform, or that would contradict amendments to the Bill, such as those proposed by the Victorian Greens (which would limit the ability of religious bodies or schools to discriminate to a greater degree), even if it is my personal view that such amendments are unlikely to be successful at this time.

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Submission on AHRC Proposal to Create a ‘Religious Freedom Roundtable’

Mr Tim Wilson

Australian Human Rights Commissioner

C/- rights@humanrights.gov.au

Friday 25 September 2015

Dear Mr Wilson

Submission on Religious Freedom Roundtable Proposal

Thank you for the opportunity to provide comments on your proposal to establish a ‘Religious Freedom Roundtable’, including on its draft ‘Statement of purposes and Guiding principles.’

From the outset, I would like to express my scepticism of the need for, and purpose of, this Roundtable.

While your call for submissions[i] at least briefly acknowledges the biggest problem in this area (“how to balance religious freedom with other human rights”), the remainder instead appears to focus on the ‘expansion’ of religious freedom, with the explicit goal of developing a body of policy work “that is designed to enlarge respect for religious freedom and proper consideration of its importance in future policy development and law reform.”[ii]

This is despite the fact that no clear need is articulated for such ‘enlargement’.

Indeed, as suggested by the Australian Law Reform Commission (ALRC) in its recent Interim Report as part of its own Freedoms Inquiry:

“[g]enerally speaking, Australians enjoy significant religious freedom, particularly by comparison to other jurisdictions. Australians enjoy the freedom to worship and practise religion, as well as the freedom not to worship or engage in religious practices.”[iii]

The ALRC went on to comment that:

“[t]here are few Commonwealth laws that can be said to interfere with freedom of religion. The Law Council of Australia advised that ‘it has not identified any laws imposing any specific restriction on the freedom of religion’ and ‘that any specific encroachment is likely to arise in balancing religious freedom with other protected freedoms, such as freedom of speech’.”[iv]

Indeed, it is difficult to think of many areas where religious freedoms are genuinely encroached upon, with the exception of the mistreatment of muslim Australians, by both Governments and other Australians, in the 14 years post September 11 (and it is difficult to see how this Roundtable would help address that issue), or the ongoing abuse of refugees fleeing religious persecution who are detained, processed and resettled on Nauru and Manus Island (although sadly there is nothing unique about this mistreatment, with all refugees who arrive by boat abused by Governments, of both persuasions, in this way).

On the other hand, it is easy to identify ways in which ‘religious freedom’ is currently exercised to discriminate against other Australians, and in this way cause significant harm to them and their rights.

The most obvious, and egregious, example of this is the extremely broad exceptions under most Commonwealth, state and territory anti-discrimination laws that permit religious organisations to discriminate against lesbian, gay, bisexual and transgender (LGBT) Australians.

In the Commonwealth Sex Discrimination Act 1984, these exceptions are contained in sections 23(3)(b), 37 and 38, with sub-section 37(1)(d) revealing exactly how broad this special right to discriminate is in practice:

“[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

In practice, this means that the Commonwealth Government tacitly endorses discrimination by religious organisations against gay teachers, lesbian students, bisexual people accessing health of community services and transgender aged care employees, among many others.

There are also a wide variety of more indirect ways in which ‘religious freedom’ has been used, and continues to be used, to oppress lesbian, gay, bisexual transgender and intersex (LGBTI) Australians.

This obviously includes ongoing advocacy by a number of mainstream christian churches, as well as by homophobic groups like the Australian Christian Lobby, to seek continued discrimination on the basis of sexual orientation, gender identity and intersex status through the secular Marriage Act 1961.

But it also includes things like campaigning to ensure the National Health & Physical Education Curriculum does not include content that is genuinely-inclusive of LGBTI students (thus denying their right to health information), or calling on Governments to abolish the national Safe Schools Coalition, a program with the explicit goal of reducing homophobic, biphobic, transphobic and intersexphobic bullying.

For all of the above reasons, I call on you to reconsider the need to establish a ‘Religious Freedom Roundtable’ and that, if you do, to amend the scope of such a Roundtable to ensure that its primary focus is on addressing the many ways in which ‘religious freedom’ is currently used as a weapon, by some elements within society, to legitimise homophobic, biphobic, transphobic and intersexphobic discrimination that is, and should be considered, unacceptable.

Before I turn to the ‘Statement of purposes and Guiding principles’ I would like to make two additional points about the information contained in the call for submissions.

First, in relation to the dot point “[p]reserving religious freedom when an organisation receives taxpayer’s money to provide a public service”, I would note that nearly all religious organisations receive taxpayer’s money through the generous exemptions from taxation law which they currently enjoy.

I would also note that this dot point appears to relate to the ‘carve-out’ to existing exceptions contained in the Sex Discrimination Act 1984, which has the effect of prohibiting discrimination by religious-operated aged care services against LGBT people accessing their services, where that service receives Commonwealth funding.[v]

In my view, this carve-out is not wide enough – there is no justification for these services to be legally permitted to discriminate against LGBT employees, either.

But, most importantly, from my perspective it is not the involvement of Government funding that means such discrimination should be prohibited – it is the fact that, employment and service provision in the public sphere, which includes the operation of aged care services, should be free from discrimination on the basis of sexual orientation, gender identity and intersex status. Full stop.

Second, in relation to the dot point “[b]alancing the right to religious freedom and equality before the law – what are the areas of shared agreement?” I note that the right not to be discriminated against (or ‘freedom from discrimination’), is in fact much broader than just ‘equality before the law’, which could be narrowly-construed as meaning equality under legislation and/or before the courts, rather than, say, equal access to employment or service provision.

Specific Comments Regarding the Draft Statement of purpose and Guiding principles[vi]

The ‘Statement of purpose’ describes the Religious Freedom Roundtable as a forum “for representatives of religious and spiritual communities to have ongoing engagement and dialogue about freedom of religion, conscience and belief (‘religious freedom’) and its interaction with public policy in 21st century Australia.”

Given the discussion above, and the fact that LGBTI Australians are the people most negatively affected by the exercise of ‘religious freedom’ in Australia, it seems odd to establish a roundtable to look at these issues and yet not have LGBTI organisations at the table.

This omission could be seen as indicating that the Religious Freedom Roundtable is in fact concerned with prioritising or ‘privileging’ the rights of religious organisations over and above the rights of other people, including those of LGBTI Australians.

Under the heading ‘Mutual respect’, in the first paragraph, you note that “[religious freedom] interacts with other fundamental freedoms including freedoms of thought, conscience, speech and association, as well as property rights.”

In response, I reiterate the position from my submission to last year’s Rights and Responsibilities Consultation that highlighting these rights, simply because they are ‘traditional’ or even just older, but omitting other rights such as the right to non-discrimination which in practice is just as important, is unjustified.[vii]

In short, “prioritising certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring all Australians are able to fully participate in modern society.”[viii]

Finally, I would like to make the following points in relation to specific ‘Guiding principles’:

Principle 1: Religious freedom is fundamental to the Australian way of life, and should be treated equally to all other human rights and freedoms.

and

Principle 2: Religious freedom is a fundamental human right that should be respected and not limited unless it infringes on the rights of others.

I agree with these statements, and particularly the observations that religious freedom should be ‘treated equally to all other human rights and freedoms’ and respected ‘unless it infringes on the rights of others’.

In practice, this should mean that the right to non-discrimination should be ‘treated equally’ to the right to religious freedom.

More importantly, it means that, given exceptions to anti-discrimination law allowing religious organisations to discriminate against LGBT Australians in health, education, community services and aged care are clearly an infringement on the right to non-discrimination in public life, and that they cause significant harm to these people, such exceptions should be abolished.

Principle 3: Religious freedom has an essential and important role in our public life or civic affairs to contribute to the moral and spiritual guidance of our nation; and faith is as legitimate basis for participation in public life and civic affairs as any other.

I disagree with this statement for two reasons. First, as an atheist, and noting that Australia is a secular state, I reject the notion that ‘our nation’ as a whole necessarily requires ‘moral and spiritual guidance’ from organised religion.

Second, while people should not be prohibited from participation in public life on the basis of their religious beliefs, I do not believe it is appropriate for religious individuals and/or organisations to seek to impose ‘religious laws’ on their fellow citizens.

An example of this is the ongoing campaign by christian fundamentalists to impose a narrow religious interpretation of marriage on their fellow citizens through the secular Marriage Act 1961, in this way denying the human rights of those who do not share the same faith – and even of other christians who do not subscribe to their particular homophobic definition of this institution.

Thus, while participation in public life and civic affairs should be open, such participation should not be abused by using religion as a tool to oppress others.

Principle 6: No Australians should be unnecessarily excluded from participation in public life or civic affairs because of their faith, age, disability, gender, race, sexual orientation, or other irrelevant personal attribute.

While I agree with the underlying sentiment of this principle, I find it disappointing that, as both the ‘Freedom Commissioner’ and also the Commissioner with responsibility for LGBTI issues, you have not explicitly mentioned gender identity or intersex status as part of this principle. These two protected attributes from the Sex Discrimination Act 1984 should be included.

Principle 8: When considering issues that affect the rights of others, it is necessary to provide equal opportunities to enlarge and consider their perspectives with the objective of accommodating and enlarging the human rights of all.

This principle appears to contradict the Statement of purpose, described above – specifically, given most contentious issues surrounding religious freedom in fact concern its intersection with the right to non-discrimination of LGBTI Australians, it is objectionable that LGBTI people and organisations are not included in this roundtable from the beginning.

Principle 10: Individuals and communities of faith will continue to constructively work with government and other public agencies to uphold the law and improve Australia’s moral and spiritual guidance.

As with principle 3, above, as an atheist I reject the implication that Australia, as a secular nation, necessarily requires ‘moral and spiritual guidance’ from organised religion.

Thank you again for the opportunity to provide comments on your proposal to establish a ‘Religious Freedom Roundtable’, including on its draft ‘Statement of purposes and Guiding principles.’

If you would like to clarify any of the above, or require further information, please contact me at the details below.

Sincerely,

Alastair Lawrie

[i] https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/religious-freedom-roundtable-call-submissions

[ii] Ibid.

[iii] ALRC, “Freedoms Inquiry Interim Report”, August 2015, para 4.1, page 97. See http://www.alrc.gov.au/publications/alrc127

[iv] Ibid, para 4.39, page 104.

[v] Sub-section 37(2): Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if: (a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and (b) the act or practice is not connected with the employment of persons to provide that aged care.

[vi] https://www.humanrights.gov.au/sites/default/files/DRAFT_ReligiousFreedomRoundtable_2015_AHRC_1.pdf

[vii] See my full submission here: https://alastairlawrie.net/2014/10/27/submission-to-rights-responsibilities-2014-consultation/

[viii] Ibid.

Submission re Australian Law Reform Commission Freedoms Inquiry Interim Report

Australian Law Reform Commission

GPO Box 3708

SYDNEY NSW 2000

freedoms@alrc.gov.au

Monday 21 September 2015

To whom it may concern

SUBMISSION RE ALRC FREEDOMS INQUIRY INTERIM REPORT

Thank you for the opportunity to provide a submission in response to the Australian Law Reform Commission (ALRC) Freedoms Inquiry Interim Report.

This submission builds on my submission in response to the Issues Paper released in December 2014[i].

As with my earlier submission, my primary focus is on the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians, including:

  • The failure by the Commonwealth Government to protect LGBTI people from vilification and
  • The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against LGBT people.

However, before I turn to these issues in detail – and specifically how they relate to Chapters 3, 4 and 5 of the Interim Report – I reiterate my concern about the Terms of Reference for this Inquiry.

From my earlier submission:

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

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

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

“Specifically, I would argue that the prioritising of certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society.

From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[iii]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community. For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights.

Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia”… but which then only focuses on a small number of freedoms, including the right to property, but which neglects others.”

[End extract]

Unfortunately, while the ALRC Freedoms Inquiry Issues Paper acknowledged that “[f]reedom from discrimination is also a fundamental human right”, in my opinion the Interim Report does not reflect this view and in fact further privileges some rights over the right to non-discrimination simply because they are ‘older’ in legal origin.

Nevertheless, in the remainder of this submission I will continue to focus on the important right to non-discrimination, including associated protections against vilification, as it relates to the freedoms of speech, religion and association that are discussed in Chapters 3, 4 and 5 respectively.

Chapter 3: Freedom of Speech

My first comment relates to terminology, namely the protected attributes referred to in paragraph 3.103 on page 80.

It is disappointing that the discussion of protections against breaches of human rights and discrimination under the Sex Discrimination Act 1984 (and the Australian Human Rights Commission Act 1986) would refer to the out-dated term ‘sexual preference’, rather than the more inclusive and better practice term ‘sexual orientation’.

It is also disappointing that the two other grounds added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 – ‘gender identity’, and ‘intersex status’ – are not included in this paragraph.

Turning now to the more substantive issue of anti-vilification laws generally, and the issue of section 18C of the Racial Discrimination Act 1975 specifically (as discussed on pages 80 to 84).

Despite public controversy in recent years (at least in the eyes of some conservative commentators), I do not believe that there has been any real evidence that the racial vilification protections of the RDA have, in practice, operated inappropriately, or that they require significant amendment.

Moreover, rather than repeal Commonwealth racial vilification protections, I continue to believe there is a strong case for the introduction of similar laws against vilification on the basis of sexual orientation, gender identity and intersex status.

As I wrote in my earlier submission [edited]:

“My primary question is why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status.

The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification, and therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians at Commonwealth level.

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

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

[End extract]

Therefore, my response to the ‘[c]onclusions’ in paragraph 3.191 is to reject the suggestion that “[a]nti-discrimination law may also benefit from more thorough review in relation to implications for freedom of speech” but to instead submit that the Commonwealth Government should amend the Sex Discrimination Act 1984 to include vilification protections on the basis of sexual orientation, gender identity and intersex status, as a matter of priority.

Chapter 4: Freedom of Religion

It is difficult to disagree with the opening paragraph of Chapter 4, where it asserts: “[g]enerally speaking, Australians enjoy significant religious freedom, particularly by comparison to other jurisdictions. Australians enjoy the freedom to worship and practise religion, as well as the freedom not to worship or engage in religious practices,” or this description in paragraph 4.39 on page 104:

“There are few Commonwealth laws that can be said to interfere with freedom of religion. The Law Council of Australia advised that “it has not identified any laws imposing any specific restriction on the freedom of religion” and “that any specific encroachment is likely to arise in balancing religious freedom with other protected freedoms, such as freedom of speech.””

In fact, I would go further to suggest that religious freedom is unnecessarily and unjustifiably prioritised, and provided with ‘special treatment’, within Australia.

This is because legal protections surrounding freedom of religion extend far beyond the right to worship freely (or not) to incorporate other ‘rights’, including the ‘right to discriminate’ against people on the basis of their sexual orientation or gender identity.

This so-called ‘right to discriminate’ applies outside places and celebrations of worship, to allow education, health and community services that are operated by religious organisations to discriminate against LGBT Australians both in employment, and in service delivery.

This is reflected in the variety of extremely broad exceptions and exemptions under Commonwealth, state and territory anti-discrimination law, which provide that the requirement not to discriminate on the basis of sexual orientation and gender identity does not apply to these organisations.

In the Sex Discrimination Act 1984, these exceptions are contained in sections 23(3)(b), 37 and 38, with sub-section 37(1)(d) revealing exactly how broad this freedom to discriminate is in practice:

“[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”

It should be noted that there is nothing inherent in the freedom of religion that automatically requires religious organisations to be provided with what is essentially a ‘blank cheque’ to discriminate against LGBT employees and LGBT people accessing services in a wide variety of circumstances.

There are two reasons for this:

First, these services, whether they are in the fields of education, health or community services, are located squarely in the public sphere, and their primary nature is related to the delivery of education, health or community services, not to the ‘celebration’ of religion.

This means that, while discrimination against ministers of religion or worshippers within a church, mosque or synagogue on these grounds might conceptually fall within freedom of religion, it is much more difficult to argue that discrimination within a school, hospital or aged care facility is as essential to enjoyment of the same freedom.

Second, we accept that there are limits to religious freedom where it threatens public order, or causes significant harm to other people. It is clear that allowing religious organisations to discriminate freely in these settings causes considerable harm to LGBT Australians, including by:

a) Denying employment to people who are eminently qualified to perform a role, with this discrimination based solely on their sexual orientation or gender identity, attributes which are irrelevant to the job at hand, and

b) Discriminating against people who wish to access services on the same basis, the most egregious example of which is mistreatment of young lesbian, gay, bisexual and transgender students whose parents have chosen to send to schools operated by religious organisations (and where they are often unaware that their child is LGBT).

For both of these reasons, I reiterate the view from my earlier submission that the exceptions offered to religious organisations under Commonwealth, state and territory anti-discrimination law should be significantly curtailed.

As I wrote previously:

“Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I submit, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[iv], if supplemented by exemptions covering how religious ceremonies are conducted, are both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. These are the only religious exemptions that, I believe, should be retained.

This, much narrower, form of religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others.”

[End extract]

Perhaps the most concerning part of the Interim Report is the stakeholder feedback from some religious organisations, lobbyists and lobby groups that, contrary to the above view, their rights to discriminate are currently too narrowly defined and they in fact demand a far greater ability to impose discrimination against LGBT Australians.

This includes submissions from the Australian Christian Lobby, Mr Patrick Parkinson, Freedom for Faith, Family Voice, the Wilberforce Foundation, Christian Schools Australia and the Presbyterian Church of Victoria. Their suggestions include replacing the existing, already overly generous exceptions to anti-discrimination law, with a positively-framed ‘right to discriminate’.

These groups are essentially arguing that religious freedom, no matter how broadly defined or how indirectly related to the actual celebration of religion, must always take precedence over the rights of others not to be discriminated against, even where such discrimination obviously causes significant harm.

I urge the ALRC to reject the views of these religious fundamentalists, and their attempts to impose the ‘supremacy’[v] of religious freedom over any or all other rights in Australian society, including through Commonwealth law.

Finally, while on Chapter 4, I note the discussion regarding solemnising marriage ceremonies on pages 111 to 113 of the Interim Report.

While I do not propose to comment on the content which is included in this section, I would note that one issue which is not canvassed is the proposal by some that, when marriage equality is finally introduced in Australian law, it should be accompanied by the establishment of a new right for civil celebrants to refuse to solemnise wedding ceremonies of LGBTI Australians.

Such provisions have been included in the Freedom to Marry Bill 2014, introduced by Liberal Democratic Senator David Leyonhjelm, and similar rights to ‘conscientiously object’ have also been advocated for by the Australian Human Rights Commissioner, Mr Tim Wilson.

For reasons that I have outlined elsewhere[vi], such provisions should be rejected by the Commonwealth Parliament on the basis that this would set a concerning precedent whereby individuals would be able to discriminate in service delivery on the basis of their personal religious beliefs, and because a social reform which is based on love would be fundamentally undermined by provisions which legitimise hate.

Chapter 5: Freedom of Association

The issues which arise in this Chapter are similar to those raised in Chapter 4: Freedom of Religion. In particular, people like Mr Patrick Parkinson and Family Voice submit that freedom of association should allow religious organisations to discriminate against people who do not “fit with the mission and values of the organisation.”

To a certain extent I agree – churches, mosques and synagogues, indeed all formally and explicitly religious organisations, should be free to include or exclude whoever they want, on whatever basis they want, as ministers of religion and as worshippers or members of their respective congregations.

The ‘whoever they want, on whatever basis they want’ formulation is important – if the people making the case for freedom of religion, and freedom of association, to justify exempting religious organisations from anti-discrimination laws are philosophically consistent, they should be pushing for exceptions to be introduced into the Racial Discrimination Act 1975 and other anti-discrimination schemes as much as they argue for the existing exceptions in the Sex Discrimination Act 1984.

If they do not, then it reveals that they are not genuinely motivated by the pursuit of these freedoms, but are in fact engaged in an exercise in prejudice specifically directed against lesbian, gay, bisexual and transgender people.

In a similar way to Chapter 4, I also disagree that the freedom of association should extend to allow education, health and community services operated by religious organisations to be able to discriminate against people on the basis of their sexual orientation or gender identity.

Any argument that might be raised that these schools, hospitals or aged care facility should have the freedom to include or exclude ‘whoever they want, on whatever basis they want’ is outweighed by the public interest in having education, health and community services provided on a non-discriminatory basis, and specifically by the harm caused to LGBT people by allowing such discrimination to occur.

Thank you again for the opportunity to provide a submission in response to the Interim Report. Please do not hesitate to contact me, at the details below, should you wish to clarify any of the above or to seek additional information.

Sincerely

Alastair Lawrie

[i] https://alastairlawrie.net/2015/02/15/submission-to-australian-law-reform-commission-traditional-rights-and-freedoms-inquiry/

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

[iii] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000.

[iv] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice…”

[v] Indeed, it is especially concerning that the Australian Christian Lobby uses the language of ‘supremacy’ in its own submission: “Courts and legislatures need to acknowledge the supremacy of the fundamental rights of freedom of religion, conscience, speech and association… [it is] a freedom which must be placed among the top levels of human rights hierarchy” as quoted at paragraph 4.96 on page 116.

[vi] See: https://alastairlawrie.net/2014/12/21/senator-leyonhjelms-marriage-equality-bill-undermines-the-principle-of-lgbti-anti-discrimination-should-we-still-support-it/

Letter to Bruce Notley-Smith re Baird Liberal-National Government Commitments on NSW Anti-Discrimination Act 1977

Mr Bruce Notley-Smith MP

80 Bronte Road

Bondi Junction NSW 2022

coogee@parliament.nsw.gov.au

Sunday 1 March 2015

Dear Mr Notley-Smith

REVIEW OF NSW ANTI-DISCRIMINATION ACT 1977

I am writing as an attendee at the recent #rainbowvotes forum, where five Members of Parliament from across the political spectrum, including yourself, outlined their respective approaches to lesbian, gay, bisexual, transgender and intersex (LGBTI) issues ahead of the upcoming NSW State Election.

Specifically, I am seeking clarification of your answers concerning the NSW Anti-Discrimination Act 1977 and what action you, and the Liberal-National Government, will take if you are re-elected.

At the forum, the representative attending on behalf of the NSW Labor Opposition, Ms Penny Sharpe MLC, gave a clear commitment that, if elected, a Foley Labor Government would undertake a formal review of the Anti-Discrimination Act 1977.

Following that clear commitment, you made several comments that appeared to indicate your personal support for such an approach.

However, later during the same forum, you indicated that you were appearing at the forum in your capacity as an individual MP only, and not as a spokesperson for the current Baird Liberal-National Government.

As a result, I sought clarification from you, via twitter, whether it is indeed NSW Liberal policy to support a formal review of the Anti-Discrimination Act 1977.

Given I have not received a response via social media, I am now writing to you more formally, with essentially the same question: is the Baird Liberal-National Government committed to reviewing the Anti-Discrimination Act 1977 if it is re-elected on Saturday 28 March 2015?

As I have written previously (see: https://alastairlawrie.net/2015/02/20/questions-for-mps-and-candidates-during-sydney-gay-lesbian-mardi-gras/ ), I believe the NSW Anti-Discrimination Act 1977 is now the worst LGBTI anti-discrimination legislation in Australia.

This is because:

  • It fails for protect bisexual people from discrimination (the only jurisdiction in the country to do so)
  • It fails to protect intersex people from discrimination
  • The religious exceptions in sub-section 56(d) are the broadest in Australia
  • The exceptions allowing all private schools to discriminate against lesbian, gay and transgender students are abhorrent
  • It fails to protect both bisexuals and intersex people from vilification and
  • The maximum individual fine for lesbian, gay and transgender vilification is only one-fifth of the maximum fine for racial vilification.

For all of these reasons, I believe that the Anti-Discrimination Act 1977 should be amended as a matter of priority.

However, if you are unable to give a clear commitment that a re-elected Baird Liberal-National Government would make changes to these provisions, I submit that, at the bare minimum you, and the Government, should be able to commit to holding a formal review of this narrow and out-dated legislation.

Given there are now less than four weeks left until polling day, I would appreciate a response to this letter, outlining what commitments (if any) the Liberal-National Government is prepared to make in this area, at your earliest convenience.

I have also copied the Premier, the Hon Mike Baird MP, and the Attorney-General, the Hon Brad Hazzard MP, into this correspondence.

Thank you in advance for you consideration of the issues raised in this letter.

Sincerely,

Alastair Lawrie

cc: The Hon Mike Baird MP, NSW Premier

GPO Box 5341

Sydney NSW 2001

The Hon Brad Hazzard MP, NSW Attorney-General

GPO Box 5341

Sydney NSW 2001

office@hazzard.minister.nsw.gov.au

Will Liberal Member for Coogee, Bruce Notley-Smith, be able to provide a clear commitment to review the Anti-Discrimination Act 1977?

Will Liberal Member for Coogee, Bruce Notley-Smith, be able to provide a clear commitment to review the Anti-Discrimination Act 1977?

Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

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

The Executive Director

Australian Law Reform Commission

GPO Box 3708

Sydney NSW 2001

c/- freedoms@alrc.gov.au

Sunday 15 February 2015

To whom it may concern

SUBMISSION TO TRADITIONAL RIGHTS AND FREEDOMS INQUIRY

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

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

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

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

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

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

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

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

“Specifically, I would argue that the prioritising of certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society.

From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[2]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community. For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights.

Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia”… but which then only focuses on a small number of freedoms, including the right to property, but which neglects others.”

[End extract]

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

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

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

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

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

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

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

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

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

My primary question is why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status.

The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification, and therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission last year in response to the Senator Brandis’ Exposure Draft Bill seeking to repeal section 18C, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984[4].

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

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

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

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

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

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

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

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

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

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

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

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religion, and protecting others from the harms caused by the manifestation of those beliefs, including through breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous.

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

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984[6] and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate against both LGBT employees/potential employees, as well as LGBT individuals and families accessing these services, with impunity; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[7]

It is difficult to see how these exemptions, which allow LGBT people to be discriminated against simply as they seek to obtain an education, or access healthcare (which are themselves fundamental international human rights), and to be treated unfairly in employment in a large number of jobs across a wide range of areas, is not a gross breach of their human rights.

Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I submit, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[8], if supplemented by exemptions covering how religious ceremonies are conducted, are both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. These are the only religious exemptions that, I believe, should be retained.

This, much narrower, form of religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[End extract]

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

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

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

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

Sincerely

Alastair Lawrie

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

[2] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000.

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

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

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

[5] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity.

[6] Which provides that “[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibility of adherents of that religion.”

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

[8] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice…”

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

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

No Homophobia No Exceptions Facebook Page

As I have written previously, I strongly believe that, long after marriage equality has been won in Australia, we, the members of the LGBTI community, will still be fighting for the right not to be discriminated against, in public life, by religious organisations (see: https://alastairlawrie.net/2014/02/26/the-last-major-battle-for-gay-lesbian-legal-equality-in-australia-wont-be-about-marriage/).

The campaign to remove the special rights which are given to religious organisations to discriminate against us in health, education, community services and elsewhere will be a long one – and we will not win it unless we start taking action now.

As part of that much larger battle, today I have started my own small Facebook page, called No Homophobia No Exceptions, with the aim of drawing attention to this issue and, where possible, to campaign for an end to religious exceptions in Commonwealth, state and territory anti-discrimination laws.

If you support this campaign, I encourage you to like the page: https://www.facebook.com/lgbtiantidiscrimination I have also included below the short, and long, description of the page for your information.

NHNE profile pic

Short Description

Online campaign for the removal of religious exceptions to LGBTI anti-discrimination laws.

Long Description

No Homophobia No Exceptions is a page dedicated to fighting against homophobia, biphobia, transphobia and intersexphobia.

Its primary goal is the removal of exceptions to anti-discrimination laws, including the Commonwealth Sex Discrimination Act 1984 and NSW Anti-Discrimination Act 1977, which allow religious organisations to discriminate against members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

No Homophobia No Exceptions also supports broader law reform to ensure that all members of the LGBTI community have access to anti-discrimination protections (for example, intersex status is only covered federally and in Tasmania, Western Australian legislation only includes trans people who have had gender reassignment, and NSW law excludes bisexual people).

It also supports the introduction of comprehensive anti-vilification protections for the LGBTI community (currently, only four Australian jurisdictions include some form of LGBTI vilification laws, and most only apply to some sections of the community).

Finally, No Homophobia No Exceptions recognises that the fight against homophobia, biphobia, transphobia and intersexphobia will not be won with legislation alone. As a result, this page aims to shine a light on examples of discrimination against the LGBTI community, both to campaign for them to be redressed, and as part of the wider cultural movement for LGBTI equality and acceptance.

#NoHomophobiaNoExceptions

If you support this campaign, please like: https://www.facebook.com/lgbtiantidiscrimination Thanks, Alastair

Submission to Rights & Responsibilities 2014 Consultation

The Human Rights Commissioner, Tim Wilson, is currently undertaking a public consultation called Rights & Responsibilities 2014. Unfortunately, similar to the ALRC Freedoms Inquiry, it is very much focused on ‘traditional’ rights at the expense of other rights like the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status. This post is my submission to this consultation process.

You can find out more about the inquiry, including downloading the Discussion Paper, at the following link: https://www.humanrights.gov.au/rights-responsibilities-2014 Written submissions, including an option to complete an online survey, are due by Friday 14 November 2014. Public consultations are also being held across the country, with a session in Sydney scheduled for Wednesday 19 November 2014 (details at the AHRC website).

Mr Tim Wilson

Human Rights Commissioner

Australian Human Rights Commission

c/- rights2014@humanrights.gov.au

Monday 27 October 2014

Dear Commissioner Wilson

SUBMISSION TO RIGHTS & RESPONSIBILITIES 2014 CONSULTATION

I welcome the opportunity to provide a submission to the Rights & Responsibilities 2014 public consultation, and in particular to provide feedback on the Discussion Paper, of the same name, published on the Australian Human Rights Commission (AHRC) website.

In this submission, I will provide feedback on two of the four rights, or related sets of rights, featured in Appendix A of the discussion paper (namely, the right to freedom of expression, and the right to freedom of thought, conscience and religious worship).

However, before doing so I would like to express my serious concern that the focus of the discussion paper is limited to some rights, which could be characterised as being more ‘traditional’ in nature (for example, the right to property), to the apparent exclusion of other rights which, I believe, are no less important in the contemporary world.

Specifically, I would argue that prioritising certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring that all Australians are able to fully participate in modern society. From my point of view, chief among these rights is the right to non-discrimination, or to put it another way (which may be more favourably received), to be free from discrimination, including unfair or adverse treatment on the basis of sexual orientation, gender identity and intersex status.

The right to non-discrimination is fundamental in international human rights law adopted immediately post-World War II. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that: “Each State Party to the present Covenant undertakes to respect and to ensure all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property, birth or other status.”

Similarly, article 21 of the ICCPR establishes that: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee has, in cases which both involved complaints by Australian citizens against actions by the Tasmanian and Commonwealth Government respectively, found that the wording of these articles includes the right to be free from discrimination on the basis of sexual orientation.[1]

The Commonwealth Parliament has also recognised that the right to non-discrimination for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians is worthy of protection, with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. This historic legislation, providing similar rights to non-discrimination to those already enjoyed on the basis of race, sex, disability and age, was a significant, albeit long overdue, step forward for the LGBTI community.

For this reason, I would not wish to see the right to be free from discrimination on these attributes to be diminished in comparison to other, more ‘traditional’ rights. Unfortunately, that is the almost inevitable conclusion of a consultation process which aims to consider “how effectively we protect people’s human rights and freedoms in Australia” (page 1 of the Discussion Paper) but which then only focuses on a small number of freedoms, including the right to property, and which neglects others.

In this way, the Rights & Responsibilities 2014 Discussion Paper appears to reinforce the message, already made clear by the Attorney-General, Senator the Hon George Brandis’ ‘Freedom Inquiry’ reference to the Australian Law Reform Commission (see http://www.alrc.gov.au/inquiries/freedoms/terms-reference for the terms of reference), that some freedoms are somehow better or more worthy of protection than others. Both inquiries appear to suggest that there is a hierarchy of rights, with ‘traditional’ rights at the top, and other rights, such as the right to non-discrimination, placed below them.

This is particularly concerning when some of those traditional rights being promoted or ‘privileged’ in these consultations, including the right to property and the right to ‘common law protection of personal reputation’ (aka defamation), are rights which are inherently more valuable to those who already enjoy ‘privilege’ within society, while other rights vital to protect the interests of people who are not ‘privileged’ are largely ignored.

Above all, I am concerned that you, in your role as Human Rights Commissioner, should actively participate in the reinforcement of this supposed hierarchy of rights, with the right to non-discrimination placed somewhere toward the bottom – especially as you are also the Commissioner at the AHRC with responsibility for sexual orientation, gender identity and intersex status issues.

I would ask that you reconsider your approach to these issues in the Rights & Responsibilities 2014 consultation process, and, instead of promoting a narrow view of what constitutes fundamental human rights, ensure that other rights, including the right to non-discrimination – or to be free from discrimination – are also given appropriate consideration.

I will now turn my attention to two of the four rights, or related sets of rights, featured in Appendix A of the Discussion Paper.

Right to freedom of expression (page 5 of the Discussion Paper)

I acknowledge the importance of the right to freedom of expression, or freedom of speech. However, I also welcome the Discussion Paper’s statement that freedom of speech is not absolute, in particular where it notes that: “Under international law, freedom of expression may only be limited where it is prescribed by law and deemed necessary to protect the rights or reputations of others, national security, public order, or public health or morals. A mandatory limitation also applies to the right to freedom of expression in relation to ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’.”[2]

In this context, I question why laws should be established to prohibit ‘advocacy of national, racial or religious hatred’ but not to prohibit advocacy of hatred on other grounds, including sexual orientation, gender identity or intersex status. The impact of vilification on these grounds, and the negative influence of public homophobia, biphobia, transphobia and intersexphobia more generally, is just as harmful as racial or religious vilification. Therefore I can see no good reason why there should not also exist equivalent anti-vilification protections covering LGBTI Australians a Commonwealth level.

It is for this reason that I provided a submission earlier this year in response to the Attorney-General, Senator the Hon George Brandis’, Exposure Draft Bill seeking to repeal section 18C of the Racial Discrimination Act 1975, in which I argued that, instead of abolishing racial vilification laws, similar protections against vilification on the basis of sexual orientation, gender identity and intersex status should be added to the Sex Discrimination Act 1984 (a copy of this submission can be found at the following link: https://alastairlawrie.net/2014/04/24/dont-limit-racial-vilification-protections-introduce-vilification-protections-for-lgbti-australians-instead/ ).

Thus, while I understand the focus of this section of the Discussion Paper is on ensuring that there exist only narrow restrictions on ‘freedom of expression’ (as summed up in the question “how individuals can be held accountable for the use of their freedom of expression outside of law” emphasis added), I submit there remains a proper, indeed necessary, role for legal restrictions on this freedom to protect against the “incitement to discrimination, hostility or violence”.

I further submit that these protections should cover lesbian, gay, bisexual, transgender and intersex Australians against such incitements. I sincerely hope that, in your capacity as both Human Rights Commissioner and AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree.

Right to freedom of thought, conscience and religious worship (page 6 of the Discussion Paper)

I also acknowledge the fundamental importance of the rights to freedom of thought, conscience and religious worship. I further agree with the Discussion Paper on page 6 where it states that “[t]he internal dimension of the right – the freedom to adopt or hold a belief – is absolute.”

However, just as importantly, I support the statement that “the external dimension – the freedom to manifest that belief in worship, observance, practice or teaching – may be limited by laws when deemed necessary to protect the public safety, order, health or morals, or the fundamental rights and freedoms of others” (emphasis added). This is a vital caveat that allows Governments to protect other individuals and groups against both potential and real harm.

Unfortunately, I do not believe that Australian law currently strikes the right balance between respecting the right to freedom of religious worship, and the harms caused by breaches of the right to non-discrimination on the basis of sexual orientation, gender identity and intersex status.

Specifically, I am concerned that the broad exceptions and/or exemptions which are provided to religious organisations under Commonwealth, state and territory anti-discrimination laws, including those protections added by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, are far too generous, and essentially approve the prejudicial and discriminatory treatment of LGBT Australians by religious bodies in a large number of areas of public life[3].

For example, the combined impact of sub-section 37(1)(d) of the amended Sex Discrimination Act 1984 (which provides that “[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibility of adherants of that religion”) and section 38 of the same law (which applies to educational institutions established for religious purposes), means that, according to Commonwealth law:

  • Religious schools can freely discriminate against lesbian, gay, bisexual and transgender students, including expelling those students simply for being who they are;
  • Religious schools can also freely discriminate against LGBT staff members, including by refusing to provide or terminating their employment, where sexual orientation and gender identity is completely irrelevant to the ability of that person to perform the duties of the role;
  • Religious health and community services can similarly discriminate, with impunity, against both LGBT employees and potential employees, as well as LGBT individuals and families accessing these services; and
  • Religious aged care services can discriminate against LGBT employees or potential employees.[4]

It is difficult to see how these exemptions, which allow LGBT people to be discriminated against simply as they seek to obtain an education, or access healthcare (which are themselves fundamental international human rights), and to be treated unfairly in employment in a large number of jobs across a wide range of areas, is not a gross breach of their human rights.

It is even more difficult to envisage how these exemptions fit with the statements on page 2 of the Discussion Paper that “[r]ights and freedoms… are about being treated fairly, treating others fairly…” (emphasis added) and that “[l]imits on rights have been established to ensure individuals do not harm others when exercising their own rights.” Religious exceptions and exemptions under Commonwealth, state and territory anti-discrimination laws allow serious harm to be caused to LGBT Australians, on a day-to-day basis and across multiple spheres of public life, and, I assert, should be significantly curbed.

To this end, I believe the religious exemptions which are included in sub-sections 37(1)(a),(b) and (c) of the Sex Discrimination Act 1984[5], if supplemented by exemptions covering how religious ceremonies are conducted, would be both more justifiable in being better targeted to protecting freedom of religious worship itself, and less likely to result in harm to LGBT people through the breach of their right to non-discrimination across broad areas of public life. Therefore, these are the only religious exemptions which should be retained.

This, much narrower, approach to religious exemptions would, in my view, also be a more appropriate outcome of a system of human rights that seeks to both protect fundamental rights, and promote the responsibility not to infringe upon the fundamental rights of others. In this respect, I question why the Discussion Paper does not live up to its title – examining both Rights AND Responsibilities – but instead focuses primarily on the expansion of some rights, including the right to freedom of religious worship, even at the possible expense of others, such as the right to non-discrimination.

For example, the conclusion of the section on “Right to freedom of thought, conscience and religious worship” notes that: “Rights & Responsibilities will focus on:

  • the ways you exercise your right to freedom of religion
  • where restrictions on freedom of religious worship exist
  • whether you have felt restricted or prohibited from exercising your right to freedom of religion
  • what could be done to enable you to exercise your right to freedom of religion.”

This focus presupposes that the only changes with respect to this area of law should be expansions to the ‘freedom of religion’, rather than allowing for the possibility that people claiming to exercise this freedom are in fact unjustifiably and inappropriately infringing upon the rights of others. The Discussion Paper does not seem to even contemplate the possibility that more protections may be needed to shield LGBT Australians from discrimination, perpetrated by religious organisations, but which at this stage is legitimated by exemptions to Commonwealth anti-discrimination law.

I submit that removing these wide-ranging, and overly-generous, religious exemptions is one of the most important, and effective, reforms the Government could make to improve the rights of any group of Australians. I sincerely hope that, as AHRC Commissioner with responsibility for sexual orientation, gender identity and intersex status issues, you agree that LGBT Australians should be free to live their lives without homophobia, biphobia, transphobia and intersexphobia. And to do so without exception. Thank you in advance for your consideration of this submission. Sincerely Alastair Lawrie

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

Human Rights Commissioner and Rights & Responsibilities 2014 author, Tim Wilson.

[1] Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/92 and Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000. [2] International Covenant on Civil and Political Rights, Article 20(2). [3] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to intersex status, only to sexual orientation and gender identity. [4] Noting that the religious exemptions contained in the Sex Discrimination Act 1984 do not apply to LGBT people accessing aged care services. [5] “Nothing in Division 1 or 2 affects:

  • the ordination or appointment of priests, ministers of religion or members of any religious order;
  • the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
  • the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice…”