Thank you for the opportunity to make a submission on this important topic.
I do so as a long-term advocate for Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) community, including through my website www.alastairlawrie.net
While my primary law reform focus is on improving LGBTI anti-discrimination and anti-vilification legislation, I have also previously made multiple submissions in relation to sexual orientation and gender identity conversion practices, including in New South Wales[i] and Victoria.[ii]
In this submission, I will attempt to answer most, although not all, of the answers posed in the Issues Paper.
However, I also wish to acknowledge that the most important voices in this debate are those of the survivors of these abhorrent practices, including survivors of sexual orientation and gender identity conversion practices in Tasmania.
Therefore, where my answers may diverge from the submissions made by survivors, both individuals and organisations, I urge you to prioritise their views as the experts on the wide scope of these practices, the serious harms they cause and the most effective way(s) in which to prohibit them.
Question 1: After considering the background and working definition, in your opinion, what are and are not ‘sexual orientation and gender identity conversion practices’?
In my view, the terminology ‘sexual orientation and gender identity conversion practices’ is appropriate, as it avoids the limitations of alternatives such as ‘ex-gay or ex-trans therapy’.
I defer to survivors on the matter of all of the possible acts that should be included in any definition. However, the scope of any definition must not be limited to only cover conversion practices which occur in health settings (a mistake made in the Queensland Health Legislation Amendment Act 2020).
On the other hand, it must cover conversion practices which occur in religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted.
In terms of the possible definition, I think the TLRI working definition captures the core components of conversion practices:
(a) acts or statements;
(b) that are aimed at changing, suppressing, or eradicating the sexual orientation or gender identity of another person; and
(c) are based on a claim, assertion or notion that non-conforming sexual orientation or gender identity is a physical or psychological dysfunction that can be suppressed or changed.
My one concern in this definition is the use of the word ‘non-conforming’, implying that there are sexual orientations or gender identities which do conform, or are ‘the norm’.
I would suggest consideration of alternative phrasing, perhaps to words to the effect of ‘that a sexual orientation that is not heterosexuality or a gender identity that is not cisgender’.
This wording may also help to ensure that support services for same-sex attracted and gender diverse people exploring their identities, as well as assistance for people considering or undergoing a gender transition, are not captured in the definition (noting these have been expressly excluded in both the Queensland legislation, and the ACT Sexuality and Gender Identity Conversion Practices Act 2020).
Finally, I support the inclusion of removing a person from Tasmania for the purpose of sexual orientation and gender identity conversion practices conducted outside the state in any definition and/or offences, because the harm is still inflicted on Tasmanians.
Question 2: Should people be allowed to consent to SOGI conversion practices? If so, at what age, and under what conditions?
No, I do not believe it is possible to ‘consent’ to SOGI conversion practices, even for adults.
The ideology which underpins conversion practices – that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’ – is dangerous and incredibly harmful. The ideology is also erroneous – LGBT people are beautiful, just as we are – meaning any consent derived from it is based on a falsehood.
In addition, people who have been indoctrinated with this abusive ideology, whether in familial, educational, health and/or religious settings, and therefore experience severe shame about who they are, are not in a position to provide genuine consent to what is simply further abuse.
As someone who attended a deeply homophobic religious boarding school in Queensland in the 1990s – where same-sex attraction was demonised from the school rules to the pulpit (with one pastor suggesting suicide was not the worst possible outcome for children struggling with their sexual orientation)[iii] – and consequently developed profound self-loathing, I may have even participated in more-formal conversion practices had they been offered, either at the school or afterwards.
I don’t believe that my ‘consent’ in such circumstances would have been any more real on the day I turned 18 than the day before.
The practices themselves are the problem, and they should be unlawful irrespective of who is being subjected to them.
On the other hand, I do support potential differentiation in penalty on the basis of who is being harmed. For example, while sexual orientation and gender identity conversion practices should be unlawful in all circumstances, I favour increased maximum sentences where the victim is a child or young adult under the age of 18 or a person with decision-making impairments (to use the terminology outlined in the Issues Paper).
Question 3: Have you been involved in or offered, or are you aware of, any forms of SOGI conversion practices in Tasmania? If so, what were the effects on you, or the person exposed to them?
Question 4: Do you think that Tasmanian law should be changed to address SOGI conversion practices? If so, should this be through comprehensive reform, amendment or both (a hybrid)?
I do not believe current Tasmanian laws are sufficient to deal with the harms caused by sexual orientation and gender identity conversion practices. Nor do I believe they can be addressed simply by amendments to existing laws. Therefore, I support either comprehensive reform, or a hybrid approach.
This would, at a minimum, include creating criminal offences covering sexual orientation and gender identity conversion practices, as well as providing civil remedy options to ensure that survivors of these abuses have the ability to seek financial compensation.
As discussed in my answer to question 2, above, I believe these responses (criminal offences and civil remedies) should cover all people who are subjected to sexual orientation and gender identity conversion practices. However, the available penalties should be higher where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments.
Question 5: Should some or all forms of SOGI conversion practices be criminalised in Tasmania? If so, which, if any should be dealt with as serious (indictable) crimes and which, if any, should be dealt with as less serious (summary) offences?
Yes, sexual orientation and gender identity conversion practices should be criminalised.
Given the serious harms caused by these practices, I believe that at least some of these activities should constitute indictable offences.
As indicated in my answers to both questions 2 and 4, above, I also believe there should be higher maximum penalties where the person subject to harm is a child or young adult under the age of 18 or a person with decision-making impairments. This may involve the creation of separate offences, or the inclusion of age and decision-making capacity as aggravating factors in sentencing.
Again, given the seriousness of the harms inflicted by sexual orientation and gender identity conversion practices, I believe that imprisonment should be an option, particularly for the worst instances of abuse (although, being unfamiliar with sentences under Tasmanian criminal law, I am not in a position to recommend a maximum term of imprisonment).
Finally, as indicated in my response to question 1, I believe these offences must extend beyond just health practitioners to include religious settings, both formal and informal, because that is where survivors tell us most of the harm is inflicted, as well as other areas (for example, educational settings).
Question 6: Should some or all forms of SOGI conversion practices be made civil wrongs in Tasmania? If so, what sort of practices should people be liable for and how should those subject to such practices be compensated?
Yes, sexual orientation and gender identity conversion practices should be made civil wrongs in Tasmania, in addition to being subject to criminal sanctions. This is necessary to allow the people harmed by such abuses to seek financial compensation.
Given people who have been exposed to the harmful ideology which underpins conversion practices may not be aware for some time afterwards that what they experienced was, in fact, abuse, I am in favour of extending the limitation period beyond the ordinary three years, and potentially up to 12 years.
Question 7: Should any existing Tasmanian laws (besides criminal laws or the Civil Liability Act 2002 (Tas)) be amended to cover SOGI conversion practices? If so, which ones and in which ways?
Provided that sexual orientation and gender identity conversion practices are covered by both criminal penalties and civil remedies (including financial compensation), I am agnostic about the specific vehicle(s) to deliver the latter.
I note that inclusion within Tasmania’s best practice anti-discrimination framework, via the Anti-Discrimination Act 1998, may confer some benefits (including in terms of access to dispute resolution, potential lesser exposure to costs as well as possible greater variation in outcomes such as public apologies).
Inclusion in the Anti-Discrimination Act may also allow the Anti-Discrimination Commissioner to investigate conversion practices, even in the absence of a specific complaint from survivors.
However, I defer to the views of survivors about their preferred regulatory approach.
Question 8: Are there any other models or approaches that are preferable to, or should complement, changing the law?
I also defer to survivors, both individuals and organisations, about the best ways to detect or report sexual orientation and gender identity conversion practices.
However, I agree with the view expressed in the Issues Paper that it may be difficult to enforce any law against these abuses.
This includes both the criminal law – where it may be difficult to establish proof beyond a reasonable doubt (although I nevertheless support the creation of criminal offences to send a strong public statement that such practices are contrary to community interests, are wrong, and are fundamentally harmful).
And it will also be difficult to enforce under civil law because it will place the onus on people who have experienced psychological abuse (and potentially physical abuse, too) to bring actions and to therefore possibly be retraumatised through the litigation process.
As with most complex problems, legislation alone will never be sufficient on its own to combat the ills of sexual orientation and gender identity conversion practices.
This is especially true because eliminating such practices also means eradicating the harmful ideology which underpins it (that people who are same-sex attracted or gender diverse are ‘broken’ and require ‘fixing’). That will require the concerted and sustained efforts of government and non-government organisations, in partnership with survivors.
I obviously defer to survivor organisations about which support and other services require funding to accomplish this objective.
Question 9: Are there any other matters that you consider relevant to this Inquiry and would like to raise?
I agree with the view expressed in the Issues Paper that criminalisation may drive sexual orientation and gender identity conversion practices further underground.
However, I do not believe this risk is sufficient to justify not prohibiting practices which inflict severe harm on many of the community’s most vulnerable people, including LGBT children and young adults.
This risk can also be mitigated by ensuring that law enforcement is appropriately trained and resourced to address the serious problems caused by conversion practices, as well as empowering an independent authority to investigate systemic issues (for example, the Tasmanian Anti-Discrimination Commissioner, as discussed above in response to Question 7).
Finally, I understand that some groups may oppose any regulation in this area on the basis of ‘religious freedom’.
However, such opposition does not understand that freedom of religion is not absolute. As Article 18(3) of the International Covenant on Civil and Political Rights makes clear:
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
Laws which seek to protect people against sexual orientation and gender identity conversion practices – which, in my view, constitute psychological torture and can and in many cases do lead to adverse mental health outcomes including depression, self-harm and even suicide – would therefore be clearly justified under international human rights law.
Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, should you require additional information.
Submission re 2020 ALP National Platform – Consultation Draft
I am writing to provide my individual feedback on the 2020 ALP National Platform, as released for public consultation.
I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community, and as someone who was responsible for providing wording on multiple policy issues which were included in the 2015 National Platform (many of which were retained in the 2018 National Platform, although most have subsequently been excluded from the current version).
I acknowledge the intent of the Consultation Draft: ‘A Platform of this kind would be much more significant and carry much more weight. But it also needed to be much shorter’ [emphasis added]. This is reflected in the abbreviated document released this year: at 96 pages, it is just over one-third the length of the 2018 version (which was 268 pages, plus the Party’s constitution).
However, Labor’s LGBTIQ policy commitments have been reduced by much more than this ratio. Indeed, it would not be an exaggeration to say that the LGBTIQ content of the 2018 National Platform has been gutted in the 2020 Consultation Draft.
At a simplistic level, this can be seen in the decline in usage of the term LGBTIQ itself: from 45 times in the 2018 National Platform, to just six times in the 2020 consultation draft. This is a massively disproportionate reduction.
But this decline is much more than just the use of fewer words. This reduction represents large, and substantive, cuts to the ALP’s policy commitments to achieving LGBTIQ equality. The LGBTIQ community should be alert and alarmed about the potential for the Labor Party to walk away from its previous policies to improve the lives of LGBTIQ Australians.
In this submission, I will start by focusing on four particular, and particularly-important, issues (three where previous commitments have been abolished entirely, and one where the proposed commitments are seriously inadequate) before providing comments on the specific chapters of the Consultation Draft, as well as the statements in detail.
Ending Coercive Medical Interventions on Intersex Children
In my view, the most egregious human rights abuses against LGBTIQ people in Australia are the ongoing coercive medical interventions, including surgical and hormonal interventions, to alter the sex characteristics of children born with intersex variations.[i]
For this reason, the inclusion of this commitment, on para 75 on page 144 of the 2018 National Platform, was welcome:
‘Parents of intersex children can be pressured to hormonally or surgically intervene on their children if they don’t receive medically correct advice, information or support about how to parent an intersex child. Labor will ensure deferral of non-necessary medical intervention on infants and children with intersex variations until such time as the person concerned can give their informed consent is supported. Labor commits to promote and support a human rights-based patient consent model for accessing lifetime medical treatments and procedures. Labor will prohibit modifications to sex characteristics undertaken for social rationales without informed consent and ensure intersex persons’ right not to undergo sex assignment treatment is respected.’
Conversely, the removal of this policy, and the total absence of any equivalent commitment to preventing involuntary medical treatments on intersex kids in the 2020 Consultation Draft, are deeply worrying.
I strongly urge the National Policy Forum, and ALP generally, to recommit to ending these abhorrent and harmful practices, by including the following statement (as proposed by leading intersex advocate Morgan Carpenter):
‘Labor will recognise the bodily integrity of intersex persons, prohibiting modifications to the sex characteristics of people with innate variations of sex characteristics performed for social or cultural reasons, and ensuring respect for intersex persons’ right not to undergo sex ‘normalisation’ treatment. Labor commits to supporting the development and implementation with community participation of human rights-affirming oversight and standards of care, including for accessing lifetime medical treatments and procedures.’
2. Removing out-of-pocket costs for trans and gender diverse healthcare
Another significant issue for Australia’s LGBTIQ community where the 2020 Consultation Draft represents a backwards step compared to the 2018 National Platform is removing out-of-pocket costs for trans and gender diverse healthcare. Paragraph 74 on page 144 of the 2018 document previously provided that:
‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Costs should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’
Once again, there is no equivalent commitment in the 2020 Consultation Draft. Instead of axing this policy, I believe the Labor Party should be strengthening its commitment, by including a modified version of the above paragraph:
‘Labor supports the rights of trans and gender diverse people to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming treatment, including surgery. Costs should not be a barrier to accessing these services. Labor commits to overcoming these barriers by removing out-of-pocket costs for trans and gender diverse healthcare.’[ii]
3. Restate commitment to ending the HIV epidemic
Perhaps the most surprising omission in the 2020 Consultation Draft is the complete exclusion of any and all references to HIV, likely for the first time in decades. In the midst of the coronavirus pandemic, it seems strange to remove commitments to addressing the HIV epidemic, especially when lessons from our best practice approach to HIV are valuable in responding to COVID-19 – and, above all, when the HIV epidemic is ongoing.
I note that paragraphs 103 and 104 on page 150 of the 2018 National Platform included the following:
‘Labor has a proud record in HIV policy. Bipartisan national leadership in partnership with affected communities and other organisations, clinicians and researchers has prevented a generalised epidemic.
‘HIV notifications, however, remain too high. Labor is especially concerned that HIV notifications have steadily increased among Aboriginal and Torres Strait Islanders and are now double the rate of other Australians. Notwithstanding these challenges, Australia has an unprecedented opportunity to end HIV transmission. Labor commits to the United Nations Political Declaration on HIV and AIDS, which provides the global framework for action on HIV, including through the UNAIDS Fast-Track 95-95-95 targets to end the HIV epidemic. Labor’s commitment to making HIV history will include restoring the capacity that the Liberals have cut from HIV peak organisations; funding new efforts to promote HIV prevention, testing, and treatment in ‘hidden populations’; and ensuring affordable access to pre-exposure prophylaxis (PrEP) via the PBS.’
The National Policy Forum should restate the ALP’s commitment to ending the HIV epidemic, and consult with the Australian Federation of AIDS Organisations (AFAO), National Association of People with HIV Australia (NAPWHA), and leading HIV advocates and experts, on what specific policy proposals are required to achieve this in the 2020s.
One area where the ALP’s commitments have not been completely removed (although some have nevertheless been excised) – but where the 2020 Consultation Draft remains highly deficient – is the issue of LGBTI anti-discrimination law reform.
Paragraph 30(b) on page 53 includes the following, general and very high-level statement: ‘Labor will work closely with LGBTIQ Australians to develop policy to… strengthen laws and expand programs against discrimination and harassment on the basis of sexual orientation, gender identity, sex characteristics and queer status.’
While obviously welcome, the lack of specificity in this paragraph means it is unclear what position a future Labor Government would take on a range of important measures that fall within this over-arching statement, including:
Protecting LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
Protecting LGBT employees and people accessing services in relation to other religious organisations delivering public services like healthcare, housing and accommodation, and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
Updating terminology in anti-discrimination legislation, including replacing the protected attribute of intersex status with ‘sex characteristics’, as advocated by Intersex Human Rights Australia and in the March 2017 Darlington Statement
Introducing prohibitions on vilification on the basis of sexual orientation, gender identity and sex characteristics, on an equivalent basis to existing racial vilification prohibitions in the Racial Discrimination Act 1975 (Cth) (with the necessity of this reform highlighted by the homophobia, biphobia, transphobia and intersexphobia whipped up by the Liberal/National Government’s unnecessary, wasteful and harmful 2017 same-sex marriage postal survey),[iii] and
Appointing an LGBTIQ Commissioner within the Australian Human Rights Commission (noting that paragraph 90 on pages 213-214 of the 2018 National Platform included a commitment that: ‘Labor will… [e]stablish under the Australian Human Rights [Commission] Act 1986 a new Commissioner for Sexual Orientation, Gender Identity and Intersex Status issues, to work across government and the private sector to reduce discrimination’).[iv]
Another LGBTI discrimination-related issues which is not addressed in the 2020 Consultation Draft is the fact neither gender identity nor sex characteristics are explicitly included as protected attributes in the Fair Work Act 2009 (Cth), leaving trans, gender diverse and intersex employees with uncertain workplace rights, including unclear protections against adverse action and unlawful termination.[v]
Perhaps most concerningly, at least in the short term, the 2020 Consultation Draft does not express a position on the Commonwealth Government’s proposed Religious Discrimination Bill, legislation that would significantly undermine the rights of lesbian, gay, bisexual, transgender, intersex and queer Australians to engage in public life without fear of discrimination.
I strongly urge the National Policy Forum to take a stand on this issue, and in particular to commit to only supporting anti-discrimination laws covering religious belief and activity where they do not undermine the rights of others, including women, LGBTIQ people, people with disability, single parents, divorced people and even people of minority faiths.[vi]
‘Labor will work closely with LGBTIQ Australians to develop policy to strengthen laws and expand programs against discrimination, harassment and vilification on the basis of sexual orientation, gender identity, sex characteristics and queer status, including by:
Amending the Sex Discrimination Act 1984 (Cth), Australian Human Rights Commission Act 1986 (Cth) and related laws to:
Protect LGBT students, teachers and other staff against discrimination by religious schools, colleges and universities
Protect LGBT employees and people accessing services against discrimination by religious organisations delivering public services including healthcare, housing and accommodation and other welfare services (including removing the ability of religious aged care services to discriminate against LGBT employees)
Update the protected attribute of intersex status to sex characteristics
Introduce vilification protections on the basis of sexual orientation, gender identity and sex characteristics, and
Appoint a Commissioner for Sexual Orientation, Gender Identity and Sex Characteristics within the Australian Human Rights Commission.
Amending the Fair Work Act 2009 (Cth), to explicitly include gender identity and sex characteristics as protected attributes, including for the purposes of adverse action and unlawful termination provisions.
Only supporting the introduction of Commonwealth anti-discrimination legislation covering religious belief and activity where it does not undermine the rights of women, LGBTIQ people, people with disability, single parents, divorced people, people of minority faiths and others to live their lives free from discrimination.
I will now provide specific comments in relation to the individual Chapters of the Consultation Draft (where relevant), as well as the Statements in Detail.
Chapter 1: Building Australia’s Prosperity
Chapter 2: Developing Our People
On page 22, at paragraph 8, the sentence ‘Labor will continue to support policies that aim to remove remaining barriers, including those based on gender, age, race, ethnicity, sexuality or disability status’, should be amended to also include gender identity and sex characteristics.
On page 23, at paragraph 19, I note this would be an appropriate place to include the commitment to explicitly protect gender identity and sex characteristics in the Fair Work Act 2009 (Cth) (as outlined as part of recommendation 4, above).
I also suggest the National Policy Forum include a commitment here that the ALP will work with trans and gender diverse communities to introduce workplace entitlements to paid transition leave, to help support increased participation by trans and gender diverse Australians in the workforce.
On page 29, at paragraph 63, I note the detailed commitments around the national curriculum no longer include the following policy from page 150, paragraph 109 of the 2018 National Platform:
‘Labor will ensure sex education includes all sexualities and gender identities. Labor will ensure the sex education curriculum is kept up-to-date and reviewed regularly by both non-government organisations and experts working in LGBTI health.’
I urge the National Policy Forum to reinstate a commitment to ensuring the national curriculum, including the health and physical education curriculum, is inclusive of LGBTI students and has content relevant to their needs.
Chapter 3: Climate Change, Energy and the Environment
Chapter 4: A Strong and Healthy Society
On page 42, after paragraph 21, I note this would be an appropriate place to include a restated commitment to ending the HIV epidemic, and associated policy proposals as agreed with AFAO, NAPWHA and others (as detailed at Recommendation 3, above).
Chapter 4 would also be an appropriate location for a strengthened policy to remove out-of-pocket costs for trans and gender diverse healthcare (as outlined at Recommendation 2).
Finally, I note the 2018 National Platform included a commitment to ‘develop a national LGBTIQ health plan, to [among other things] address the particular health needs of LGBTIQ people, working in partnership with these communities and LGBTI health bodies.’
I believe the National Policy Forum should reinstate this commitment, given ongoing health issues across the LGBTIQ community, including in relation to mental health.
Chapter 5: An Equal and Inclusive Nation
I note the section ‘Equal rights for LGBTIQ Australians’ would be an appropriate place for the contents of Recommendation 4 described above to be included (and in particular replacing paragraph 30(b) on page 53).
I further note the LGBTIQ health-related commitments in paragraph 30(c) are not a substitute for a national LGBTIQ health plan (mentioned in relation to the previous chapter), while policies to support national intersex-led organisations in paragraph 30(d) do not obviate the need for specific policies to end involuntary medical interventions on intersex children (as called for in Recommendation 1 of this submission).
In terms of paragraph 30(e), and its commitments in relation to trans and gender diverse identity documentation, I note major problems still exist at state and territory level, and especially in NSW, Queensland and Western Australia.[vii]
The National Policy Forum should be urging Labor Governments in Queensland and Western Australia to urgently amend their respective births, deaths and marriages laws to allow trans and gender diverse people to update their identity documents on the basis of self-identification, without the need for surgery or other medical approval or ‘gate-keeping’.
Similarly, the NSW Labor Opposition should be encouraged to support equivalent reforms there – and, if the NSW Liberal/National Government does not progress these changes, for Labor to introduce them in the first 100 days of any incoming administration.
I have two particular concerns about paragraph 31 on page 53, which currently reads:
‘Labor will ensure schools are welcoming and supportive environments for all students and teachers, regardless of their gender identity and sexuality. We will support programs that promote understanding, tolerance and respect for every student.’
First, this commitment could be strengthened to provide absolute certainty that it applies to all schools: government, private and/or religious.
Second, the commitment in the second sentence is a significantly watered-down version of the position in the 2018 National Platform (paragraph 60 on page 119):
‘Schools must be safe environments for students to learn and for teachers to teach – including same sex attracted, intersex and gender diverse students and teachers. Labor will continue working with teachers, students and schools to stop bullying and discrimination, ensuring a safe place for LGBTI students to learn by properly resourcing inclusion and anti-bullying programs and resources for teachers. Labor will continue to support national programs to address homophobia, biphobia, transphobia and anti-intersex prejudice in schools. This includes ensuring gender diverse students are able to express the gender they identify with.’
I believe the 2020 version, and its absence of specific support for targeted programs addressing homophobia, biphobia, transphobia and intersexphobia, underestimates the prevalence of such discrimination, and the harms that continue to be caused to LGBTI students.
Paragraph 31 on page 53 be replaced with the following:
‘Labor will ensure all schools are welcoming and supportive environments for all students, teachers and other staff, regardless of their sexual orientation, gender identity and sex characteristics. We will support programs that promote understanding, acceptance and respect for every student, including programs to specifically address homophobia, biphobia, transphobia and intersexphobia.’
In my view, paragraph 32 on page 54, is also deeply flawed, this time for three reasons. First, as survivors have consistently advocated, bans on ‘reparative’ or conversion practices must be exactly that – aimed at practices, rather than the much more limited, and potentially only health-related, ‘therapies’.
Second, it must capture both sexual orientation and gender identity conversion practices (rather than just ‘gay conversion’).
Third, I am concerned that the wording ‘will work with advocates to ensure people are not coerced into undergoing such therapies’ potentially misses the point – it is not just ‘coercion’ that is the problem, it is the practice itself. Policies in this area should be aimed at banning sexual orientation and gender identity-change practices broadly, not just ‘coercion’ into undergoing these practices.
The National Policy Forum consult with survivors of conversion practices in relation to the commitments in paragraph 32 on page 54, and in particular to ensure that:
-It applies to conversion practices (and not just therapies)
-It includes both sexual orientation and gender identity conversion practices, and
-It bans the practices themselves, rather than preventing ‘coercion’ into undergoing such practices.
I am also concerned at the wording on paragraph 33 on page 54, which is an abbreviated form of the commitment at paragraph 105 on page 233 of the 2018 National Platform. In particular, in my view the abbreviation has omitted the more important part of that policy, namely:
‘Labor will work first with our Pacific neighbours, our Indo-Pacific region and the nations of the Commonwealth to encourage the repeal of discriminatory laws, especially criminal laws against homosexual sexual conduct and most urgently against such laws where they impose the death penalty, and will encourage steps to implement the actions required by the Yogyakarta Principles. Labor will work strategically to support and assist both local and international civil society organisations in promoting LGBTIQ human rights.’
I encourage the National Policy Forum to amend the abbreviated commitment in the Consultation Draft to capture these elements, and especially supporting the push for decriminalisation in the Pacific, Indo-Pacific and Commonwealth.
My final comment in relation to the section ‘Equal rights for LGBTIQ Australians’ on pages 53 and 54 is to highlight that it does not include support for any formal mechanisms to consult with, and represent the interests of, LGBTIQ communities. For example, the National Policy Forum should consider expressing support for both:
A Commonwealth Minister for Equality, and
An LGBTIQ Ministerial Advisory Committee, including sub-committees in relation to health, education, justice and other portfolios as required.
I have a further, important comment to make about the section ‘Freedom of thought, conscience and religion’ on page 55 of the 2020 Consultation Draft.
Specifically, paragraph 41 states:
‘Labor believes in and supports the right of all Australians to manifest their religion or beliefs, and the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith. Such rights should be protected by law. Labor recognises that the freedom to have or adopt a religion or belief, or not to have or adopt a religion or belief, is absolute.’
While elements of this commitment are appropriate, the way in which it is worded is dangerous. In particular, the right to manifest religion or beliefs must always be limited by the need to protect the fundamental human rights of others, including the right to be protected against discrimination.
As the International Covenant on Civil and Political Rights itself notes, at Article 18.3:
‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’
This vital nuance is currently missing from paragraph 41. In its absence, people of faith and especially religious organisations would be given a blank cheque to discriminate against others, including LGBTIQ Australians.
Paragraph 41 on page 55 be redrafted such that the right to manifest religion or beliefs is limited by the need to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, including the right to participate in public life free from discrimination.
Chapter 6: Strengthening Australian Democracy
Chapter 7: Australia’s Place in the World
On page 68, at paragraph 41, I suggest the inclusion of an additional dot point, to the effect that ‘Labor will ensure Australian international development addresses… the empowerment of people with diverse sexual orientations, gender identities and sex characteristics.’
Statements in Detail
On page 82, under the hearing ‘Public sector industrial relations’, where it says ‘Labor will… [l]ead by example on addressing the ill effects of family and domestic violence by introducing public-sector wide standards of paid leave and other supporting entitlements for workers who are affected by family and domestic violence’, I suggest the inclusion of the following:
‘Labor will lead by example on addressing the disadvantage and exclusion experienced by trans and gender diverse people in the workforce by supporting public-sector wide entitlements to paid transition leave.’
Finally, I express my strong personal support for the retention of explicit commitments in the Statements in Detail in relation to LGBTIQ refugees and people seeking asylum. This includes paragraph 24 on page 93:
‘Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.’
And paragraph 13 on page 95:
‘Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.’
In conclusion, I acknowledge even this detailed submission is unable to substantively address all of the many LGBTIQ policy commitments that were included in the 2018 National Platform, but which have subsequently been excluded from the 2020 Consultation Draft.
Some of these now-omitted policies covered:
Providing LGBTIQ-inclusive aged care (paragraph 34 on page 110)[viii]
Addressing LGBTIQ housing and homelessness issues (paragraphs 166-167 on page 171,[ix] and paragraph 90, on page 214)
Ensuring LGBTIQ statistics are collected by the Australian Bureau of Statistics (paragraph 85 on page 213)[x]
Establishing a National Gender Centre ‘to provide support and advocacy for transgender Australians, which could have an education and training role to promote awareness about transgender issues to the wider public’ (paragraph 88 at page 213), and
Supporting programs to make sport inclusive for LGBTIQ participants (page 195).
To some extent, it is perhaps inevitable that, by choosing to reduce the length of the Platform from 268 pages to 96, the Australian Labor Party’s 2020 Consultation Draft would include fewer detailed commitments in support of LGBTIQ equality and human rights.
What is not inevitable, however, is that these commitments should be cut in such a disproportionate way, as I have demonstrated through this submission. Or that it now excludes important policies around ending coercive medical interventions on intersex children, removing out-of-pocket costs for trans and gender diverse healthcare, restating a commitment to ending the HIV epidemic, or making much-needed improvements to Commonwealth LGBTI anti-discrimination laws.
I strongly urge the National Policy Forum to consider amending the draft Platform to strengthen the Party’s policy commitments in these four areas, and in other ways suggested in my comments on specific chapters and the statements in detail.
Nevertheless, irrespective of what happens in the redrafting process, or at the National Conference in early 2021, it seems highly likely that the Platform adopted next year will be the first in at least a decade, and perhaps the first in a generation, to include fewer commitments in support of LGBTIQ equality and human rights than its predecessor.
In which case, the onus will be on the Leader of the Opposition Anthony Albanese, Shadow Ministry and Federal Parliamentary Labor Party generally to work with the LGBTIQ community in the lead-up to the next election to make detailed policy commitments outside of the Platform so that urgent community needs are still addressed.
Thank you in advance for taking these comments into consideration. Please do not hesitate to contact me at the details provided should you require additional information.
[iii] Noting that the 2018 National Platform included a commitment to provide effective sanctions against anti-LGBTIQ hate-speech (at paragraph 137, on page 218):
‘When prejudice against LGBTIQ people contributes to harassment by the written or spoken word, such harassment causes actual harm, not simply mere offence, to people who have suffered discrimination and prejudice, and causes particular harm to young same-sex attracted, gender-questioning or intersex people. Labor considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will ensure that anti-discrimination law provides such effective sanctions.’
[viii]‘As they age, LGBTIQ deserve care and support that reflects their diversity. Labor will ensure policies in relation to ageing take into account the needs of people with different sexual orientations, gender identities and sex characteristics by building on Labor’s previous LGBTIQ Ageing and Aged Care Strategy.’
[ix]‘There is a significant connection between homelessness and people being subjected to discrimination and harassment for being same-sex attracted or transgender and specifically understands the discrimination and exclusion affecting transgender people seeking to access support. Accordingly, Labor will work with affected communities to enhance housing support for LGBTIQ Australians.’
‘Labor acknowledges that young lesbian, gay, bisexual and transgender people are at significantly higher risk of homelessness, and commits to support dedicated services aimed at addressing this issue.’
[x] An especially significant omission given the decision of the current Liberal/National Government to not include LGBTI questions as part of the 2021 Census. For more on this topic see Census 2021 – Count Me In.
Finally, the 2020 ALP National Platform – Consultation Draft:
Submission re: Equal Opportunity (Religious Bodies) Amendment Bill 2020
Thank you for the opportunity to provide a submission on the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020.
I do so as a long-term advocate for the rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, and as someone with particular expertise in anti-discrimination legislation, including comparative analysis of LGBTI anti-discrimination protections across Australia.[i]
First, I welcome the intention of the draft legislation, which is to narrow the scope of the excessive and extreme religious exceptions currently found in section 50 of the Equal Opportunity Act 1984 (SA). These exceptions allow religious organisations to discriminate against LGBTI South Australians in a wide range of everyday situations, causing direct and significant harm to a vulnerable population.
Second, I particularly welcome proposed section 50(1)(c)(ix), which would have the effect of protecting LGBTI students in religious schools against discrimination on the basis of who they are. This protection is long overdue, with change in South Australia made necessary because of the failure of the Morrison Government to deliver on his October 2018 promise to prohibit such discrimination under the Sex Discrimination Act 1984 (Cth).[ii]
However, while passage of this legislation would represent an improvement in terms of the rights of LGBTI South Australians to participate in public life without fear of discrimination, I would like to highlight three major problems with the Bill as drafted:
The scope of areas where LGBTI people will be protected – or not
The draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 effectively creates a ‘carve-out’ from the general religious exception found in section 50(c)[iii] of the Equal Opportunity Act 1984 (SA) so that it does not apply in relation to certain areas of public life.
This approach appears to be based on section 37(2) of the Sex Discrimination Act 1984 (Cth), which provides that the general religious exception in section 37(1) of that Act does not allow aged care services operated by religious organisations to discriminate against LGBT people accessing those services (although, disappointingly, it continues to allow religious aged care services to discriminate against LGBT employees).
It is encouraging that the draft South Australian Bill extends this carve-out to a wider range of areas of public life, including:
Health care and disability support
Public housing, and
Foster care placement.
In another welcome development, the carve-out also applies to employees in these areas (other than in relation to educational institutions, an issue which is discussed further below).
However, the carve-out approach has inherent limitations. In particular, the boundary between areas of public life where LGBTI people will be protected, and those where they will not, may appear arbitrary and difficult to justify.
For example, while proposed sections 50(1)(c)(ix) and 50(1)(c)(x) mean that religious pre-schools, primary schools and secondary schools will not be able to discriminate against LGBTI students, the absence of a similar carve-out for tertiary education means that religious universities will nevertheless still be able to discriminate against LGBTI students.
In an environment when many university-age students are exploring and ultimately affirming their sexual orientation and/or gender identity, I do not believe it is acceptable to allow religious universities to discriminate against those students simply because of who they are (and especially where religious universities use public funds to do so).
In a similar way, while it is pleasing that emergency accommodation services operated by religious organisations will not be able to turn away LGBTI people in need of their assistance, it seems arbitrary that other essential service providers (such as food services or other forms of welfare support)[iv] will be able to reject people on the basis of their sexual orientation, gender identity or intersex status.[v]
Finally, proposed section 50(1)(c)(i) would ensure that religious foster care agencies will not be able to discriminate against LGBTI people (including employees, potential foster carers and children being placed). However, the absence of a similar provision in relation to adoption agencies presumably means that religious organisations providing that particular service will be able to discriminate in this way.
This double-standard – where rainbow families are ‘good enough’ to be foster carers, but can still be rejected as adoptive parents just because of who they are – cannot be justified.
Therefore, if the carve-out approach is retained, in my view it should at a minimum be extended to include tertiary education, broader welfare services and adoption agencies.
Recommendation 1: If the ‘carve-out’ approach in section 50(1)(c) of the draft Bill is retained, the following areas of public life should be added:
Welfare services generally, and
2. The ongoing ability of religious organisations to discriminate on the basis of gender identity, sexual orientation and intersex status
I have framed the above recommendation in a qualified manner because I believe the ‘carve-out’ approach is itself problematic. That is because, in any area of public life that is not listed in section 50(1)(c), religious organisations will continue to be permitted to discriminate on the basis of gender identity, sexual orientation and intersex status, including in terms of who they employ and who they provide their services to.
This will obviously have a negative impact on LGBTI South Australians by restricting their ability to participate in public life without fear of discrimination. And it falls well below the best practice approach to religious exceptions, which has been adopted in the Anti-Discrimination Act 1998 (Tas), and in a more limited way the Discrimination Act 1991 (ACT).[vi]
The Tasmanian ‘gold standard’ allows religious organisations to discriminate – but only on the basis of religious belief or activity, and not on other grounds, such as sexual orientation, gender identity or intersex variations of sex characteristics.
For example, section 51 allows religious organisations to discriminate in employment in the following way:
(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religious is a genuine occupational qualification or requirement in relation to the employment.
(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, teachings, principles or practices.
Section 51A then allows discrimination on the ground of religious belief or affiliation or religious activity in relation to enrolment at religious educational institutions (although not after the point of admission), while section 52 allows discrimination by religious organisations on the ground of religious belief or affiliation or religious activity in relation to ‘participation in religious observance’.[vii]
From my perspective, this is a fairer way in which to allow religious organisations to prioritise people from their own faith, while not infringing upon the rights of others – including LGBTI people – to live their lives free from discrimination.
I strongly urge the South Australian Government to improve the proposed Equal Opportunity (Religious Bodies) Amendment Bill 2020 by moving to a model where religious organisations are only allowed to discriminate on the basis of religious belief or activity, and not in relation to other protected attributes, including gender identity, sexual orientation and intersex status.
Recommendation 2: The South Australian Government should consider adopting the Tasmanian best practice approach to religious exceptions, allowing religious organisations to discriminate on the basis of religious belief and activity, but not in relation to other protected attributes including gender identity, sexual orientation and intersex status.
3. The ongoing ability of religious schools and universities to discriminate against LGBTI teachers, lecturers and other staff
The final, and arguably most important, problem with the Equal Opportunity (Religious Bodies) Amendment Bill 2020 is something it does not do – it does not remove the ability of religious education institutions (including schools and universities) to discriminate against LGBTI teachers, lecturers and other staff (which is currently permitted under section 34(3) of the Equal Opportunity Act 1984 (SA)).
In my view, this exception is unacceptable, for several reasons.
First, it is unfair on LGBTI teachers, lecturers and other staff. They may be the best qualified person for a job, but they can be denied employment (or, where they already work for a religious school or university, fired), on the basis of something which has no connection to their ability to perform the role. This is especially egregious given the large amounts of public funding provided to these institutions.
Second, it is unfair to students generally – who are denied being taught by the best possible teacher or lecturer for their class.
Third, it is unfair on LGBTI students in particular. Not only are they denied positive role models, they are also enrolled in an educational institution which has adopted a hostile attitude towards LGBTI teachers, lecturers and other staff, something which will inevitably influence the broader culture of the school or university.
Fourth, I do not believe the supposed ‘safeguard’ contained in sections 34(3)(b), (c) and (d) – which requires educational institutions wishing to rely on this exception to have a written policy stating its (discriminatory) position, that is provided to employees and potential employees, and on request to students, their families and members of the public – is sufficient.[viii]
Transparency doesn’t make prejudice any less real, or any more acceptable. LGBTI teachers, lecturers and other staff members can still be denied employment simply because of their gender identity, sexual orientation or intersex status – attributes which have absolutely nothing to do with their ability to perform the role.
Further, and even more damagingly, LGBTI students at these institutions who are aware of such policies will be acutely aware their presence there is only ‘tolerated’ because the institution is legally prohibited from discriminating against them (in other words, they would discriminate against these students if they could). They will know that they will never be truly accepted for who they are.
This last reason alone justifies removal of the exception for religious educational institutions in section 34(3) of the Equal Opportunity Act 1984 (SA) and instead prohibit all religious schools and universities from discriminating against LGBTI employees.
Recommendation 3: The exception allowing religious education institutions to discriminate against LGBTI teachers, lecturers and other staff in section 34(3) of the Equal Opportunity Act 1984 (SA) must be repealed, with these institutions prohibited from discriminating against employees on the basis of gender identity, sexual orientation and intersex status.
In conclusion, I should reiterate that, despite the problems identified above, the draft Equal Opportunity (Religious Bodies) Amendment Bill 2020 would, if passed in its current form, still significantly improve the rights of LGBTI people in South Australia to go about their lives free from discrimination.
In particular, I welcome the commitment of the South Australian Government to protect LGBTI students at religious schools against discrimination. This is much needed, and would have an immediate and appreciable benefit for vulnerable students across the state.
Nevertheless, I firmly believe the proposed legislation can be substantially strengthened, including by extending the scope of areas in which LGBTI people are protected to include tertiary education, welfare services and adoption agencies – or, even better, to adopt the best practice Tasmanian approach to religious exceptions (as discussed earlier).
Above all, I strongly encourage the South Australian Government to remove the ability of religious educational institutions to discriminate against LGBTI teachers, lecturers and other staff members, so that these places can become welcoming and inclusive places for all people seeking to learn, or impart knowledge, irrespective of their gender identity, sexual orientation or intersex status.
Thank you in advance for your consideration of this submission. Please contact me at the details provided should you wish to clarify any of the above, or for further information.
[iii] ‘This Part does not render unlawful discrimination in relation to- any other practice of a body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.’
[iv] In many cases, these services will be using local, state and/or Commonwealth funding to do so. In nearly all cases, they will be relying on tax exemptions supporting them to carry out this work.
[v] Intersex status is the protected attribute currently included in the Equal Opportunity Act 1984 (SA). However, I support the replacement of intersex status with ‘sex characteristics’, as called for by Intersex Human Rights Australia, as well as intersex advocates in the March 2017 Darlington Statement.
[vi] The ACT has adopted the Tasmanian approach in relation to religious schools (only allowing discrimination on the basis of religious conviction, and not on the ground of sexuality, gender identity or sex characteristics), but not for other religious organisations.
[vii] Noting that section 52(d) of the Anti-Discrimination Act 1998 (Tas) is quite generous: ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to- (d) any other act that- (i) is carried out in accordance with the doctrine of a particular religion; and (ii) is necessary to avoid offending the religious sensitivities of any person of that religion.’
[viii] Even if, in some circumstances, it may be useful in applying external pressure on religious educational institutions whose employment practices fall short of community standards.
Today is one of my favourite days of the LGBTI calendar: Sydney Gay & Lesbian Mardi Gras Fair Day. Tens of thousands of people will gather in Victoria Park in a beautiful celebration of our community.
That includes visitors from interstate and from overseas, especially from the Asia-Pacific region, whose numbers will swell over the next fortnight in the lead-up to the Mardi Gras Parade and Party, to be held on Saturday 29 February.
It creates a real buzz around the city. I can only imagine how much louder Sydney will hum in 2023 as we host World Pride, the first city in the Southern Hemisphere to do so.
However, there is a looming threat to LGBTI tourism to Australia, one that has the potential to dampen our celebrations more than even literal rain on our parade: the Government’s proposed Religious Discrimination Bill.
If passed, this legislation could have a negative impact on nearly every aspect of the visitor experience. So much so, it is easy to envisage the following warnings being handed out to lesbian, gay, bisexual, transgender and intersex tourists to Australia in the future:
Don’t get sick
Not only because our health care system can be expensive for people who are not citizens or permanent residents. But also because the Religious Discrimination Act allows doctors, pharmacists and some other health practitioners to refuse to provide health services, even where this has a disproportionate impact on vulnerable groups. For example, doctors and pharmacists can:
refuse to provide hormone treatments, even where this adversely affects trans and gender diverse people[i]
refuse to provide PEP/PrEP, even where this has a detrimental impact on gay and bisexual men (and others at increased risk of HIV transmission), and
refuse to provide reproductive health services (such as the morning after pill), irrespective of the effect on people with uteruses.
If possible, make sure you bring all of your medications with you, and be careful not to lose them during your stay.
Be prepared to ‘shop around’ for doctors, pharmacists and other health practitioners
If you do get sick, or lose your medication, while in Australia, you should be prepared for the possibility any individual doctor or pharmacist may refuse to provide a specific health service or treatment. You may need to see several of each in order to obtain access to the medications you need. Unfortunately, it is also likely you will be charged for appointments even where the health practitioner refuses to provide a service.
Importantly, whether a doctor or pharmacist will refuse to provide a specific health service or treatment may not be apparent before you see them. Individual doctors or pharmacists at public hospitals are also entitled to refuse service: if this happens, try asking for a new practitioner until you receive treatment.
Be prepared for doctors, pharmacists and other health practitioners to express abhorrent views about you, to you
Even if a doctor, pharmacist or other health practitioner provides you with the health service or treatment that you need, they are also free to express offensive, humiliating, ‘moderately’ intimidating, insulting or ridiculing views about your sexual orientation, gender identity or sex characteristics while doing so. For example, they may be able to:
tell trans and gender diverse people that gender is binary and that their gender identity is an abomination[ii]
tell lesbian, gay and bisexual people that same-sex relationships are intrinsically disordered and sinful, and
tell intersex people that sex should be male or female and that their sex characteristics are a mistake that must be corrected.
Doctors, pharmacists and other health practitioners will be able to express these abhorrent views to you as long as they are based on their religious beliefs.
Be prepared for people to express abhorrent views about you, to you, in all areas of public life
In fact, people will be to express such views about you, to you, in all areas of public life: on the plane or boat you arrive on; at the airport; in taxis, ubers, buses, ferries, trains and other forms of transport; at hotels, motels and B&Bs; at galleries, museums and other tourist attractions; at cafes and restaurants; at shops. Everywhere you go while you are in Australia.
That’s because the Religious Discrimination Act exempts ‘statements of belief’ from constituting discrimination under all other Commonwealth, state and territory anti-discrimination laws, as long as those statements are based on that person’s religious beliefs and fall short of harassment, threats, serious intimidation or incitement to hatred or violence.
If you are subjected to abhorrent views and wish to make a complaint, try to find out whether the person expressing them is religious
Because abhorrent views are protected where they are based on religious beliefs, you may be able to complain about homophobic, biphobic, transphobic and intersexphobic comments that are not motivated by religion.[iii] Therefore, if you wish to make a complaint about such mistreatment, you will first need to work out whether the person making the statement is religious.
In practice, it may be difficult to determine whether someone is religious and/or whether their anti-LGBTI prejudice is based on their religious beliefs. It may also be physically unsafe to do so. In these circumstances, it may be wiser not to make a complaint and instead try to avoid the person(s) expressing such views (if possible).[iv]
If you need emergency food or shelter during your stay, consider pretending to be Christian
In Australia, the Government outsources a wide range of health, education and other community services to religious organisations. This includes some homelessness shelters, as well as food vans and other welfare services.
Under the Religious Discrimination Act, religious charities are able to discriminate on the basis of religious belief in terms of who they provide these services to, even where they are providing them with public funding.
Given the vast majority of faith-based charities in Australia are Christian, if you experience financial difficulties during your stay and need emergency food or shelter, you should consider pretending to be Christian. You may even need to pretend to be from the specific Christian denomination providing that service (eg Catholic or Anglican).
The above warnings might sound absurd, but if the Government’s Religious Discrimination Bill becomes law in its current form, then they will be all too real.
And we will have a responsibility to provide these warnings to all LGBTI tourists to Australia, not just during Mardi Gras and World Pride, Midsumma, Feast and other pride festivals around the country, but all year round, each and every year.
Of course, it won’t just be tourists who will be adversely affected by this legislation either. In fact, all of the warnings I have included will also apply to LGBTI Australians.
Doctors, pharmacists and other health practitioners will be able to refuse to provide specific health services and treatments to us, and we won’t necessarily know before we make an appointment.
Everyone in public life (including health practitioners, as well as people providing education, accommodation, transportation, food and other goods and services) will be able to express abhorrent views about us, and to us, as long as those views are religiously-motivated.
And if we fall on hard times, our religion (or lack of religion) may determine whether we are able to access some publicly-funded essential services.
The only glimmer of hope is that this post is a potential warning, rather than an actual one. It is only a Religious Discrimination Bill at this stage, not an Act. This disturbing vision of the future can still be prevented from becoming a reality – but only if we take action now.
Please speak up in the coming days and weeks. If you see a federal politician at Fair Day, or at the Mardi Gras Parade, ask them whether they will vote against a Religious Discrimination Bill that takes rights away from the LGBTI community. If they post about it on twitter, facebook or other socials, ask them the same thing.
You should also write to:
ALP MPs and Senators
Greens MP and Senators
Centre Alliance Senators (if you’re in South Australia)
Senator Jacqui Lambie (if you’re in Tasmania), and
Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith)
because they will help determine whether this legislation becomes a waking nightmare, or just a temporary bad dream.
PFLAG Australia has made this process easy, using the website Equality, Not Discrimination. Equality Australia has a similar helpful platform, here. Make your voice heard, because this legislation will affect LGBTI tourists, and LGBTI Australians, alike.
If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus
[i] Attorney-General Christian Porter confirmed that trans and gender diverse patients could be denied treatment on the day he released the Second Exposure Draft Religious Discrimination Bill:
“Mr Porter used the example of a GP who did not want to ‘engage in hormone therapies’ for a trans person. ‘That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all’.”
‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, 10 December 2019, Sydney Morning Herald.
[ii] The explanatory notes to the Second Exposure Draft Religious Discrimination Bill confirm this. At para 549, on page 66:
‘For example, a statement by a doctor to a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary may be a statement of belief, provided it is made in good faith. However, a refusal by that doctor to provide medical services to a transgender person because of their religious belief that gender was binary would not constitute a statement of belief as the refusal to provide services constitutes an action beyond simply stating a belief, and therefore may constitute discrimination on the basis of gender identity.’
[iii] This also depends on the jurisdiction the tourist finds themselves in. Anti-LGBTI vilification is not prohibited under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory. Anti-LGBTI vilification is prohibited in both Tasmania and the ACT, anti-LGBT vilification is prohibited in Queensland, while NSW has different coverage for inciting or threatening violence (LGBTI), or civil vilification (only lesbian, gay and binary transgender). For more see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.
[iv] Indeed, this seems to be the Government’s intention – to discourage people who experience discriminatory conduct from bringing complaints.
The Morrison Government’s Second Exposure Draft Religious Discrimination Bill was released one year ago today (on Human Rights Day, which was particularly ironic given its contents trample on the rights of women, LGBTI people, single parents, divorced people and people in de facto relationships, and people with disability, among many others).
Following public consultation during January and February, it was expected the final version of the Bill would be introduced in Commonwealth Parliament by Attorney-General Christian Porter in March 2020.
Of course, COVID-19 had other plans – who knew all it took to stop this awful law was the worst global pandemic in a century? Although, in reality, their proposed legislation was only ever placed on pause – and there is increasing evidence PM Morrison and AG Porter plan to introduce their Religious Discrimination Bill in early 2021.
The attorney general, Christian Porter, said in a statement: “The government will revisit its legislative program as the situation develops, and bring the religious discrimination bill forward at an appropriate time.”
This was followed by a story in Monday 7 December’s Australian, stating that:
Australia’s faith leaders are urging Scott Morrison to put the implementation of a Religious Discrimination Act at the top of his political agenda next year, warning their congregations would hold the Prime Minister to his election pledge once COVID-19 passes…
Catholic, Anglican and Muslim leaders told The Australian work on a Religious Discrimination Act must begin as early as February when federal parliament returned from its summer break.
It is clear that religious fundamentalists both within and without the Government want to push ahead with this deeply-flawed legislation come hell or high water, the rights of other Australians be damned.
There is a very real risk the final Bill will be introduced in the first half of 2021, perhaps as soon as when Commonwealth Parliament resumes on February 2nd. Scott Morrison is fond of (over-)using the word ‘comeback’ at the moment – but reviving the Religious Discrimination Bill is one comeback that most definitely should not happen.
The Religious Discrimination Bill must be resisted, in the strongest possible way, for all of the reasons outlined below in my original post about the Second Exposure Draft. To allow it to pass would mean undermining the rights of many, many Australians to live our lives free from discrimination.
It is ironic that a Bill that uses the phrase ‘in good faith’ multiple times (four times in the First Exposure Draft, and nine times in the Second) was itself developed through a process that was the polar opposite.
The Religious Discrimination Bill is the end product of the Religious Freedom Review, which was a gift to religious fundamentalists during parliamentary debate about marriage equality in 2017, and was payback against LGBTI Australians for having the temerity to demand equal rights under secular law.
When that review was finally released in December 2018, Attorney-General Christian Porter promised that the Government’s Religious Discrimination Bill would be similar to other anti-discrimination laws, and ‘follow a very standard architecture’.[i] Instead he has delivered incredibly complex legislation with several unique, special rights for religious individuals and organisations to discriminate against others (more on that below).
Mr Porter also stated in December 2018 that ‘we are well-advanced on the drafting of [the Bill] and which we would have out early next year , so that people can see it.’ Yet the Liberal-National Government did not reveal any details of the Bill until after the May 2019 federal election, leaving voters in the dark about a central plank of their platform (perhaps some voters may have voted differently had they known their human rights would later come under sustained attack).
In August, the Guardian Australia reported that:
Christian Porter has sought to allay concerns that a federal religious discrimination bill could water down protections for LGBT people in state legislation. The attorney general told Guardian Australia the bill “is not intended to displace state law…”’[ii]
But when the First Exposure Draft Bill was released on 29 August it did exactly that, with clause 41 directly over-riding Commonwealth, state and territory anti-discrimination legislation, and specifically over-riding Tasmania’s best practice protections against ‘conduct which offends, humiliates, intimidates, insults of ridicules’[iii] others, including women, LGBTI people and others.
At no point between December 2018 and August 2019 did the Morrison Government consult with anyone other than the religious organisations who would benefit from the Bill. There was no engagement with any of the people who stood to lose the most, from women, to LGBTI people, single parents, divorced people and people in de facto relationships, and people with disability.
Even when the Attorney-General released the Exposure Draft Religious Discrimination Bill for public comment – and received a deluge of criticism from representatives of those groups, as well as the vast majority of civil society organisations, and even the Australian Human Rights Commission, the independent body who would be responsible for overseeing any legislation once passed – Porter, and the Government, have chosen to ignore that feedback.
In fact, the only major substantive change to the Bill was something demanded by religious organisations – to expand its religious exceptions even further, allowing religious hospitals and aged care services to discriminate on the basis of religious belief in employment. Even when receiving taxpayers money to deliver public services.
It is completely unsurprising that, having undertaken a bad faith process to develop its legislation, the Government has produced what is essentially a ‘bad faith’ Religious Discrimination Bill. A Bill that prioritises and privileges the rights of religious individuals and organisations over and above everyone else.
This can be seen in how the Second Exposure Draft[iv] differs from the First in relation to its four major problems[v] – or, rather, in how there is nothing to separate the two Bills, meaning the Government has not addressed these flaws.
The Religious Discrimination Bill will still make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities
Clause 42 (which was previously clause 41) continues to exempt ‘statements of belief’ from discrimination complaints under all Commonwealth, state and territory anti-discrimination legislation, including the Fair Work Act 2009 (Cth) and Tasmania’s best practice Anti-Discrimination Act 1998.
Indeed, multiple changes to the Bill will actually ensure more discriminatory statements of belief are protected from legal consequences. This includes expanding the definition of statements of belief (so that they do not need to align with the mainstream views of any religion, but can be from the extreme fringes of faith), as well as providing that comments will be protected even where they are ‘moderately’ intimidating towards the victim.[vi]
Nor has the Government addressed the constitutional flaws of this provision. Because the Bill would introduce a Commonwealth defence to state laws, state tribunals would legally be unable to determine whether the defence was valid. So where a person makes a complaint of discrimination, and a respondent claims it was a ‘statement of belief’, it would need to be referred from the tribunal to a court to hear that particular issue, and then referred back to the tribunal to determine the remainder of the complaint – massively increasing the costs and time involved, with the likely outcome that many discrimination complaints will be withdrawn no matter how valid they are.
Overall, clause 42 will still encourage degrading and demeaning comments about women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability, and even people from minority faiths,[vii] in all areas of public life, from workplaces to schools and universities, health care, aged care and other community services, to cafes, restaurants and even shops.
The Religious Discrimination Bill will still make it easier for health practitioners to refuse to serve minorities
There have been some minor improvements to the ‘conscientious objection’ provisions in the Second Exposure Draft (previously clauses 8(5) and (6), now clauses 8(6) and (7) of the Bill). This includes narrowing the list of health practitioners who will be able to take advantage of these sections, as well as including a note that they are not intended to allow practitioners to refuse to provide a service to a category of people.
But, in practice, these changes are superficial rather than substantive. The list of practitioners who remain covered:
means the vast majority of interactions between patients and the health system are nevertheless potentially jeopardised via ‘conscientious objection’.
Meanwhile, the distinction between refusing to provide a service to a category of people (which would not be permitted) and refusing to provide a category of service to people (which would be) is so blurry as to be meaningless.
As Attorney-General Porter himself confirmed when releasing the Second Exposure Draft, it is designed to protect ‘a GP who did not want to “engage in hormone therapies” for a trans person. “That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all.”’[viii]
The net effect is that GPs and pharmacists will be empowered to:
Refuse to provide reproductive health services, even where this disproportionately affects women
Refuse to provide PEP and/or PrEP, even there this disproportionately affects gay, bisexual and other men who have sex with men, and
Refuse to provide hormone therapy (including puberty blockers), even where this disproportionately affects trans and gender diverse people.
Overall, clauses 8(6) and (7) will still encourage practitioners to refuse to provide vital health care services to some of the most vulnerable members of the Australian community.
The Religious Discrimination Bill will still make it easier for religious bodies to discriminate against others
In fact, as hinted at earlier, the religious exceptions contained in the Second Exposure Draft will make it even easier for even more religious organisations to discriminate in even more circumstances.
Clause 11 (which was previously clause 10), provides an exception to all religious schools and universities, as well as ‘registered public benevolent institutions’ (even where providing commercial services to members of the public), as well as ‘any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities)’.
This exception allows these bodies to discriminate on the ground of religion in both employment, and who they provide services to (or withhold services from).
The test for determining whether the organisation can (ab)use these special privileges is also much easier to satisfy in the Second Exposure Draft. In fact, there are now two alternative tests, and the organisation need only satisfy one:
Clause 11(3) is already a lower standard than the existing religious exception in the Sex Discrimination Act 1984 (Cth), because the organisation can simply act, ‘in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion’ – unlike section 37(1)(d) of the SDA, these acts do not need to be ‘necessary’.
Clause 11(1) sets an even lower standard again. It provides that a ‘religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.’
This second test is entirely subjective. A religious body is only required to demonstrate that one other person considers their discrimination is in accordance with their faith. They don’t even have to agree with the discrimination itself! This hurdle is so easy to clear that it is almost impossible to imagine any scenario where a court or tribunal will disallow religious discrimination by these organisations.
Which is particularly devastating because the Second Exposure Draft also expands the types of organisations that can take advantage of these privileges.
Clauses 32(8) and (10) allow religious hospitals, aged care services and accommodation providers to discriminate in employment on the ground of religion. And clauses 33(2) and (4) permit religious camps and conference sites to discriminate in who they provide services to (even where these are facilities run on a commercial basis and otherwise open to the public).
As I have written previously, these religious exceptions will mean that:
A professor can be denied a job because they are Jewish.
A doctor can be refused employment at a hospital because they are Muslim.
A school student can be expelled because they are atheist.
A homeless person can miss out on a bed in a shelter because they are Hindu.
A charity worker can be rejected for promotion because they are Buddhist.
An aged care employee can lose shifts because they are agnostic.
Overall, clause 11 (and related clauses) will fundamentally divide Australia, by empowering religious organisations to discriminate both in employment, and in who they provide services to, on the grounds of religion. And they will be able to do so while using taxpayers’ money. Your money. My money, Our money.
The Religious Discrimination Bill will still make it more difficult for big business to promote diversity and inclusion
Clauses 8(3) and (5) (which were previously 8(3) and (4)) are the provisions which were created in response to the circumstances of a certain ex-footballer – by making it incredibly difficult for organisations with revenue of at least $50 million per annum to impose codes of conduct that prevent an employee from making discriminatory comments outside their ordinary hours of employment.
These clauses have been slightly improved in the Second Exposure Draft. By clarifying they only protect employees in conduct ‘other than in the course of the employee’s employment’, it actually applies to a reduced set of circumstances.
But Attorney-General Porter has also included a new clause 8(4), which makes things much worse again – by preventing qualifying bodies (like legal admission or medical registration bodies) from taking into account degrading or demeaning public comments which applicants may have made ‘unless compliance with the rule by the person is an essential requirement of the profession, trade or occupation’.
Previously, these bodies may have denied admission or registration on the basis that the applicant was not a ‘fit and proper person’ – instead, homophobes, biphobes and transphobes will be encouraged to discriminate with little or no professional consequences.
Any of these problems should be sufficient in and of itself for anyone interested in human rights for all Australians, and not just for some, to oppose the Bill. All of them together should be enough for Labor, the Greens and Senate Cross-Bench to vote against it – although only the Greens’ opposition is secure at this stage.
And that’s not even including some of the other ‘lesser’ problems in the package of ‘religious freedom’ laws the Government is seeking to pass, which are each significant in their own right:[ix]
Creating a ‘Religious Freedom Commissioner’ within the Australian Human Rights Commission, to advance the ‘religious freedom’ agenda, even though such a position was not recommended by the Government’s own Ruddock Review, and while LGBTI Australians continue to be denied a Sexual Orientation, Gender Identity and Sex Characteristics Commissioner.
Amending the Marriage Act 1961 (Cth) to reinforce the ability of religious educational institutions to reject same-sex weddings, even where they provide those services to the public on a commercial basis – and despite the fact such a ban was not previously required to reject divorced people remarrying (meaning this is essentially an anti-marriage equality provision),[x] and
Amending the Charities Act 2013 (Cth) to ‘protect’ charities advocating against an inclusive definition of marriage, even though the Australian Charities and Not-for-profits Commission (ACNC) explicitly stated such a clause was not needed, and despite the fact no other type of advocacy (from Indigenous, to environmental or LGBTI) is protected in this way.
Unfortunately, there are even more problems in the Religious Discrimination Bill, and its two related Bills (the Religious Discrimination (Consequential Amendments) Bill, and the Human Rights Legislation Amendment (Freedom of Religion) Bill), although it would take too long to describe them all in detail here.
In short, these are deeply flawed Bills, developed through a bad faith process, that will have a terrible impact on women, LGBTI people, people with disability and others. If passed, they would lead to increased division between different communities, changing our country for the worse. They must be blocked.
Perhaps the most frustrating part of this debate is that a genuine Religious Discrimination Bill, one that protected people of faith and no faith against discrimination on the basis of who they are, would have been a welcome development.
If the Government had prepared the Religious Discrimination Bill in good faith, it would have been met with substantial community goodwill. Instead, they listened to religious fundamentalists, and have now released two slightly different versions of legislation containing the same fundamental flaw – it increases discrimination rather than reducing it.
Significantly, the victims of the Government’s Bill will not only be women, LGBTI people, single parents, people in de facto relationships, divorced people, and people with disability. People from minority faiths, atheists and agnostics all stand to lose under Attorney-General Porter’s, and Prime Minister Morrison’s, disingenuous and disastrous Second Exposure Draft ‘Religious Freedom’ Bills.
Anti-discrimination legislation should reduce discrimination, not increase it. It should unite us, rather than divide us. The Religious Discrimination Bill fails on those most fundamental criteria. It is a bad faith Bill, and the only possible good outcome from here would be for it to be rejected in its entirety.
One of my main objectives for the blog this year is to include practical information on as many posts as possible about actions readers can take. In this instance, there are at least three things you can do:
Write a submission on the Second Exposure Draft Bills
The Second Exposure Draft ‘Religious Freedom’ Bills are open for public consultation until Friday 31 January 2020. Details of the Bills are here, and you can send written submissions via email to FoRConsultation@ag.gov.au
You don’t have to be a lawyer to make a submission, nor do you need to comment on all of the Bills’ many problems. Instead, you can simply describe your general concerns about the proposed legislation, as well as any specific fears about its impact on you and your community. Some suggested points include:
All Australians deserve to be protected against discrimination.
This includes people of faith, and no faith. But it must also include women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability and others.
Unfortunately, the Second Exposure Draft Religious Freedom Bill will increase discrimination against many groups, including people from minority faiths, rather than reduce it.
It will encourage people to make ‘statements of belief’ that degrade and demean others just because of who they are, in workplaces, schools and universities, health care, aged care and community services, cafes, restaurants, shops and other public places.
It will encourage doctors, pharmacists and other health practitioners to refuse to provide vital health services to vulnerable Australians.
It will encourage religious organisations to discriminate against people on the basis of their faith, in schools and universities, hospitals, aged care and other community services, even where they are delivering essential public services using public funding.
The Government should scrap the current version of the Religious Discrimination Bill, and prepare a new Bill that reduces discrimination rather than increasing it.
If the Government fails to do so, the Parliament must reject the Second Exposure Draft Religious Discrimination Bill, and associated ‘Religious Freedom’ Bills.
Write to MPs and Senators expressing your concerns
While submissions about the Exposure Draft Bills are valuable, it is essential you also convey your concerns directly to your elected representatives.
It is especially important to write to the following:
ALP MPs and Senators
Greens MP and Senators
Centre Alliance Senators (if you’re in South Australia)
Senator Jacqui Lambie (if you’re in Tasmania), and
Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith).
You can also access a range of materials from Equality Australia here, including a submission-writing toolkit.
Attend a public rally against the Bills
For those who prefer their activism to be on the streets, there will also be a number of public rallies around the country in coming weeks, including:
Sydney: Saturday 8 February at 1pm, Sydney Town Hall
Melbourne: Sunday 9 February at 1pm, State Library of Victoria
Brisbane: Saturday 1 February at 5pm, King George Square, and
Perth: Saturday 8 February at 1pm, Forrest Chase
The bad faith Religious Discrimination Bill, and the two other proposed ‘Religious Freedom’ Bills, can be blocked, but only if we all take action together.
Attorney-General Christian Porter, author of the ‘Bad Faith’ Religious Discrimination Bill.
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[x] Unfortunately, it would not be the only provision in the Marriage Act 1961 (Cth) which discriminated against same-sex couples, despite the postal survey result. For more see: No, We Don’t Have Marriage Equality Yet.
On Saturday 30 November, Prime Minister Scott Morrison revealed that his Government would not meet its commitment to introduce the Religious Discrimination Bill into Parliament before the end of the year.
Instead, he announced they would be releasing ‘a revised and further exposure draft of the RDA Bill to reflect the Government’s response to the consultation to date and provide further opportunity for engagement.’ [i]
On an optimistic reading, this means there is more opportunity for the Government to listen to all of the criticisms of this legislation, from women, LGBTI people, legal organisations and the Australian Human Rights Commission, that the Religious Discrimination Bill requires substantial amendment because it authorises discrimination against large sections of the Australian community.
Unfortunately, based on all evidence to date, we have more reason to be pessimistic, and instead fear that the Government will only listen to religious fundamentalists demanding even more special privileges to discriminate.
The only change to the Bill which Attorney-General Christian Porter highlighted at the National Press Club on 20 November[ii] was an amendment to ensure that ‘religious hospitals and aged-care providers will be given protections equivalent to those given to other religious bodies, in relation to employment of staff’ (in other words, allowing them to discriminate).
There have been no indications of positive changes to the Bill, to reduce its adverse impact on women, LGBTI people, single parents, divorced people, people in de facto relationships, people with disability and others. Nor was there any reason to be hopeful in the Prime Minister’s media release confirming the delay.
However, what I really want to highlight here is the inconsistency of two of Morrison’s statements in that release.
Specifically, he criticises Labor for ‘a lack of genuine commitment … to the principle that Australians who hold sincere religious beliefs in this country deserve the same legal protections that are rightly provided in other areas such as gender and race.’
But then later the Prime Minister also says ‘Our Government will continue to proceed on the basis of good faith with a view to having a balanced and common sense Bill that protects the important religious freedoms that Australians can sadly no longer take for granted.’
Except these two concepts – a Religious Discrimination Bill, and religious freedom laws – are very, very different things.
Had Morrison actually delivered the former, legislation that simply protects people of faith, and no faith, against discrimination on the same basis as gender, race and other attributes, then not only would Labor have likely welcomed it, but so too would the majority of Australians, including LGBTI people. After all, we know what discrimination is like, and don’t want other people to experience it.
Instead, his Government has produced a ‘Religious Discrimination Bill’ in name, but a religious freedom law in substance. The most problematic elements of the Exposure Draft – re statements of belief, large employer codes of conduct, conscientious objections by health practitioners and the general ‘religious exception’ in clause 10[iii] – all purport to protect ‘religious freedom’ rather than the right to non-discrimination.
Obviously, a lot has been written about the serious flaws of these provisions (including by the author), and particularly about the discrimination they permit against other groups.
Perhaps one consequence that hasn’t received as much attention is that they actually make this legislation not just inconsistent in its objectives, but internally contradictory as well.
That’s because these same provisions also allow discrimination against people on the basis of their religious beliefs, or lack of belief – making it a Religious Discrimination Bill that perversely encourages religious discrimination.
For example, the protections for ‘statements of belief’ in clause 41 – which effectively render them exempt from all Commonwealth, state and territory discrimination laws – don’t just apply to comments that discriminate against women, LGBTI people, single parents, divorced people, people in de facto relationships and people with disability.
Clause 41 also protects statements of belief that discriminate on the basis of religion. This includes, for example, saying the followers of other religions are ‘unclean heathens destined for eternal damnation’. Just like sexist, homophobic, transphobic and ableist statements, these derogatory comments will be protected irrespective of where they occur, including in the workplace, in education, in health, and in the provision of goods and services.
In the same way, clauses 8(3) and (4) won’t just protect a certain footballer telling gay and trans people they are going to hell – it will protect any religious employee who, outside ordinary work hours, tells people from other religions they’re going to hell, too.
The conscientious objection provisions, in clauses 8(5) and (6), are an even bigger threat. As well as allowing health practitioners, from GPs and pharmacists through to optometrists, physiotherapists and even podiatrists, to refuse to serve women, or LGBTI people, they could potentially be (ab)used by a health practitioner to refuse to serve Jewish people, or Muslims, or people from other minority faiths.
But the biggest threat of all – especially to minority religions – is found in clause 10. It allows religious schools and universities, charities and ‘any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities)’,[iv] to discriminate on the basis of religious belief.
This clause therefore permits discrimination against teachers and students, as well as the employees of – and even people accessing – charities and community services. And, as we have already seen, Attorney-General Porter plans to expand this clause even further to allow religious hospitals and aged care services to discriminate in relation to employment (at the very least).
Technically, clause 10 protects all religious organisations equally – they will each be able to discriminate in terms of who they employ (or refuse to employ), and provide services to (and who they exclude).
Practically, this clause will primarily benefit the largest religious organisations – including the Catholic and Sydney Anglican[v] churches and related education, health and community services organisations – at the expense of everyone else.
With the massive outsourcing of public services to these bodies over the past two to three decades, they now receive billions and billions of dollars each and every year, and will be explicitly permitted to use that public funding to discriminate.
Not just in relation to lesbian, gay, bisexual and transgender people (which is sadly already allowed under the Sex Discrimination Act 1984 (Cth), and which the Morrison Government steadfastly refuses to change), but also in relation to religious belief, or lack of belief.
That means a professor being denied a job because they are Jewish.
A doctor refused employment at a hospital because they are Muslim.
A school student expelled because they are atheist.
A homeless person missing out a bed in a shelter because they are Hindu.
A charity worker rejected for promotion because they are Buddhist.
An aged care employee losing shifts because they are agnostic.
All these scenarios could be legal under the Religious Discrimination Bill, as long as it was a religious organisation doing the discriminating. And they would be using taxpayers’ money – your money, my money, our money – to do so.
This outcome – entrenching the power and privilege of the major churches, namely the Catholics and Sydney Anglicans, over and above the rest of us – is the inevitable consequence of the internal contradiction of this legislation.
The Morrison Government has chosen to undermine what could and should have been a standard Religious Discrimination Bill – one that would have prohibited most, if not all, of the scenarios described above – with provisions that instead promote ‘religious freedom’.
With their decision to release a second Exposure Draft for public consultation, the Government now has the opportunity to make a better, and more informed, choice, and to prepare legislation that reduces religious discrimination rather than increasing it.
Unfortunately, I can’t seem to suspend my disbelief that they will choose the right option. Based on everything leading to this point, I have no faith the Government’s ‘revised and further exposure draft’ Bill will be any less of a threat to women, LGBTI people, single parents, divorced people, people in de facto relationships and people with disability.
But we must not forget it is also a threat to minority religions, to Jewish people, Muslims, Hindus, Buddhists, atheists and agnostic people alike. They too will be subjected to discriminatory statements of belief, and potentially denied access to health care, just because of who they are. And they will be refused employment, and discriminated against in education, health, aged care and community services, all by ‘mainstream’ religious organisations using public monies to do so.
Hopefully, they – as well as the many decent Catholic and Anglican people of good faith who oppose new special rights to discriminate – will join us in demanding genuine religious anti-discrimination laws, to replace Morrison’s badly botched Bill.
By choosing to include expansive ‘religious freedom’ provisions, Scott Morrison has undermined the ability of the Religious Discrimination Bill to actually prohibit religious discrimination.
The Religious Discrimination Bill, released in late August by Attorney-General Christian Porter, would be the biggest reform to anti-discrimination law in Australia in at least 15 years, since the passage of the Age Discrimination Act 2004.
In fact, it is potentially the most radical change to our federal anti-discrimination system since, well, the beginnings of anti-discrimination law in this country.
That’s because it fundamentally undermines one of the key concepts of this framework: concurrent Commonwealth, and State/Territory, jurisdictions.
Since the passage of the Commonwealth Racial Discrimination Act 1975, NSW Anti-Discrimination Act 1977, and similar laws elsewhere, these laws have operated effectively alongside each other, without directly interfering with each other.
Where conduct was prohibited under laws at both levels, the victims of such discrimination were able to choose where to lodge their complaint. Successive Commonwealth Governments haven’t sought to cover the field, or explicitly override the provisions of State and Territory anti-discrimination laws.
But this is no longer the case. The Religious Discrimination Bill dramatically, and unprecedentedly, upsets Australia’s anti-discrimination applecart.
Section 41 provides that ‘statements of belief’ do not constitute discrimination for the purposes of any anti-discrimination law – including each of the Racial, Sex, Disability and Age Discrimination Acts at Commonwealth level, and all equivalent state and territory laws.
The Apple Isle has even more to lose than the others – with section 17(1) of their Anti-Discrimination Act 1998 singled out by name as being specifically overruled.
This is undoubtedly because it offers the most effective form of protection against conduct that ‘offends, humiliates, intimidates, insults or ridicules’ a wide range of groups, including LGBTI people, women, single parents, people in de facto relationships, divorced people and people with disability, among others.
But all State and Territory Governments should be alert and alarmed at this unwanted and unwarranted intrusion, not least because of the proposal that the Commonwealth Attorney-General be allowed to override even more laws by future regulation, without needing the approval of federal Parliament (and with Senate numbers making it extremely difficult for these regulations to be disallowed).
It is not just the principle of federalism that is offended by this hostile takeover. It is the fact the Religious Discrimination Bill makes it easier to offend the rights of vulnerable groups in each and every Australian jurisdiction that makes its contents so disturbing.
This makes the current religious discrimination debate a major test for State and Territory Governments around the country. Will they stand up to the Commonwealth Government’s decision to undermine their anti-discrimination laws?
More importantly, will they stand up for the communities in their respective states and territories – LGBTI people, women, single parents, people in de facto relationships, divorced people and people with disability – who stand to lose the most as a consequence of the Religious Discrimination Bill?
There is another, related challenge for State and Territory Governments from these developments. At the same time as the Attorney-General was releasing his exposure draft Bill, the reporting date for the Australian Law Reform Commission’s review of ‘religious exceptions’ was pushed back to December 2020.
This is the inquiry that was established earlier this year to examine whether provisions which allow religious schools to discriminate against LGBT students, and teachers, should be amended, or repealed entirely.
The delay means any legislation arising from this inquiry will likely not be passed until the second half of 2021 – and therefore won’t be in place until the 2022 school year at the earliest.
This is incredibly disappointing given Prime Minister Scott Morrison’s broken promise, in October 2018, that he would ensure LGBT students were protected before the end of last year. Effectively, this will now be delayed by more than three years.
The contrast with the Religious Discrimination Bill is also revealing. On one hand, the Morrison Government wants to pass a stand-alone Religious Discrimination Bill before the end of this year – a substantial, and radical, change to our federal anti-discrimination regime, with just one month of public consultation.
On the other, it refuses to make what are modest, straight-forward changes to protect LGBT students and teachers in religious schools for several years. It has decided to vacate that field, and consequently to vacate their responsibilities to vulnerable kids.
In the meantime, LGBT students and teachers will continue to be subject to abuse and mistreatment, simply on the basis of who they are, in schoolyards, classrooms and staff-rooms around the country.
And so it is now up to State and Territory Governments to show the leadership that the Commonwealth Government won’t. For NSW, Victoria, South Australia and Western Australia to pass urgent changes to protect LGBT students. And for all jurisdictions other than Tasmania and the ACT to cover LGBT teachers.
Because all kids deserve to grow and learn in a safe environment. And they don’t deserve to wait until 2022 to know what that feels like.
NSW Premier Gladys Berejiklian at Sydney Gay & Lesbian Mardi Gras, and Victorian Premier Daniel Andrews at Midsumma. Will they stand up against the Religious Discrimination Bill which will make it easier to discriminate against LGBTI people in their respective states?
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The Religious Discrimination Bill(s), released by Attorney-General Christian Porter in late August, remind me a lot of the ongoing Sydney apartment crisis.
They are the inevitable consequence of a system that has been designed to serve the interests of one group over and above everyone else. Except instead of property developers, these new laws would benefit religious fundamentalists. While those left picking up the tab are women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities, and plenty of others.
And, just like a recently-built Sydney apartment, what might seem shiny and new on first inspection reveals a growing list of defects the closer one looks.
Here then is a look at the serious problems with the Religious Discrimination Bill(s) that we are already aware of (a list I’m sure will grow if we ever have the misfortune of ‘living’ under these shoddily-constructed laws):
The Religious Discrimination Bill will make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities
The worst provision of the Exposure Draft Religious Discrimination Bill is proposed section 41. This provides that ‘statements of belief’ are basically exempt from discrimination complaints under all Commonwealth, State and Territory anti-discrimination laws (including the Fair Work Act 2009).
As long as the person making such comments does so on the basis of their religion and they are made ‘in good faith’, they will be lawful unless the person on the receiving end can show they are malicious, or likely to harass, vilify, incite hatred or violence. In practice, that would be extremely difficult to prove.
This section is a radical departure from our current anti-discrimination framework, under which Commonwealth laws like the Sex Discrimination Act 1984, and State and Territory laws like the NSW Anti-Discrimination Act 1977, operate alongside each other, allowing victims to decide where to complain.
The provision also specifically overrides section 17(1) of Tasmania’s Anti-Discrimination Act 1998, which prohibits conduct that ‘offends, humiliates, intimidates, insults or ridicules’ people on the basis of a wide range of protected attributes, including:
Lawful sexual activity
Intersex variations of sex characteristics
Parental status, [and]
That’s a long list of groups who will find themselves the targets of derogatory comments having lost one of the few effective shields against them.
But that’s exactly what section 41 seems intended to achieve: to make it easier for religious fundamentalists to speak evil, and write evil, comments about different groups. With the obvious consequence that women, LGBTI people and others will be forced to see evil and hear evil comments about themselves.
This provision would build a fundamental imbalance into our existing anti-discrimination system, privileging the rights of one group within society at the expense of everyone else. It must not be allowed to pass.
The Religious Discrimination Bill will make it more difficult for big business to promote diversity and inclusion
Another serious problem of the Exposure Draft Religious Discrimination Bill are provisions which are based on the circumstances of a certain (ex-)footballer.
Proposed sub-sections 8(3) and 8(4) would make it much more difficult for major employers (organisations with revenue of at least $50 million per year) to introduce codes of conduct that prevent employees from making derogatory comments about minorities outside ordinary working hours where those comments are ‘statements of belief’.
The only way an employer will be able to enforce such restrictions is if they are able to demonstrate failure to do so would inflict ‘unjustifiable financial hardship’ on them. On a practical level, it will be extremely difficult to prove hypothetical yet significant future harm in order to justify imposing these rules in the here and now. Many big businesses will (quite understandably) simply avoid doing so.
It should also be noted that ‘unjustifiable financial hardship’ is the only criteria to permit these codes of conduct. They cannot be implemented on the basis of wanting to promote diversity and inclusion within the workplace (including to make other employees feel welcome), or to associate their ‘brand’ with values of diversity and inclusion more broadly – unless they can attach a sufficiently-large dollar value to it.
Once again the likely consequence of these provisions is to make it easier for religious fundamentalists to make offensive comments about women, LGBTI people, single parents, people in de facto relationships, divorced people and people with disabilities, among others. That seems to be the opposite outcome to what a well-constructed anti-discrimination law should achieve.
The Religious Discrimination Bill will make it easier for health practitioners to refuse to serve minorities
The next major defect of the Exposure Draft Religious Discrimination Bill is also found in proposed section 8 – this time sub-sections 8(5) and 8(6). These provisions make it easier for health practitioners to conscientiously object to providing health services.
If, upon reading this, you think these provisions must be referring to ‘controversial’ medical procedures such as abortion and euthanasia, you should be aware they actually cover a much, much wider range of health services.
This includes assisted reproductive technology, where health practitioners would presumably be empowered to ‘conscientiously object’ to providing access to single women, unmarried couples and LGBTI people.
But even that is just the tip of the iceberg in terms of services where it will be more difficult to impose ‘health practitioner conduct rules’ to treat all patients with dignity and respect. Indeed, the definition of ‘health service’ in section 5 ‘means a service provided in the practice of any of the following health professions:
Aboriginal and Torres Strait Islander health practice
Medical radiation practice
This full list makes it abundantly clear these provisions are not restricted to permitting health practitioners to refuse to perform certain acts, but instead will encourage them to refuse to serve certain classes of people (unless someone can explain what ‘controversial’ procedures are involved in dentistry, medical radiation practice, or optometry).
For example, it could allow a pharmacist to refuse to dispense hormone treatments to trans customers, while providing them to cisgender women. Indeed, this is something that the Human Rights Law Alliance (which is aligned to the Australian Christian Lobby) has been publicly advocating.
If you are now thinking that these provisions have the potential to substantively undermine Australia’s health care system, and in particular the right of all people to access essential health services without fear of discrimination on the basis of who they are, you would be right.
Both of these sets of unusual amendments to the ordinary ‘reasonableness’ test for indirect discrimination (sub-sections 8(3) and (4) re big business, and sub-sections 8(5) and (6) re health practitioners) must be rejected.
The Religious Discrimination Bill will make it easier for religious bodies to discriminate against others
The fourth and final serious problem in the Exposure Draft Religious Discrimination Bill is the broad ‘exception’ in proposed section 10 that would allow religious bodies, including religious schools and registered charities, to discriminate against others on the basis of religious belief, or lack of belief.
Given this provision effectively allows discrimination between religions, it would be tempting for women’s organisations, and groups representing LGBTI Australians, to give it less attention than those outlined above. But it would be ill-advised to ignore its potentially far-reaching consequences.
For example, the test to allow discrimination: ‘conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion’, will be much easier to satisfy than the existing criteria in section 37 of the Sex Discrimination Act 1984: ‘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’ [emphasis added].
If the test in section 10 of the Religious Discrimination Bill becomes law, it would set a negative precedent, with some in the Government then pushing for the same, lower standard to be included in the Sex Discrimination Act (potentially through the current Australian Law Reform Commission inquiry into religious exceptions).
The exception in section 10 also applies to an incredibly wide range of circumstances. For example, it would allow a religious school to expel a student in year 12 for expressing doubts about the school’s religion (something that is specifically excluded under equivalent laws in Queensland, Tasmania, the ACT and Northern Territory, which allow discrimination on the basis of religious belief at admission, but not once enrolled).
Finally, if section 10 becomes law it could set up a potential ‘time-bomb’ for future anti-discrimination reform. If and when we finally achieve repeal of the religious exceptions in the Sex Discrimination Act, this provision could allow religious schools to expel LGBT students who refuse to repent for their sexual orientation or gender identity (where the school attempts to claim they are not discriminating because they are LGBT, but instead on the basis of their religious beliefs about being LGBT).
For all of these reasons, proposed section 10 must be substantially narrowed in order to avoid creating a structural flaw not just in the Religious Discrimination Bill itself, but across anti-discrimination legislation more generally.
These four sets of provisions are dangerous, unprecedented, unwanted and unwarranted additions to Australia’s anti-discrimination regime (so much so they might be described as the four horsemen of our ‘religious freedom’ apocalypse).
They will disturb any sense of balance or proportion in our laws, by making it clear the right of religious fundamentalists to discriminate against others is more important than the rights of women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live their lives free from discrimination.
The Religious Discrimination Bill will ensure that religious belief is privileged in several key ways, in an almost unlimited range of everyday situations.
But they are not the only threats in the draft laws released by the Attorney-General a fortnight ago.
You may have noticed in this article’s title, and introduction, references to Religious Discrimination Bill(s). That’s because, along with the Exposure Draft Religious Discrimination Bill itself, Mr Porter also released the Religious Discrimination (Consequential Amendments) Bill 2019, and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.
While these two Bills have received far less attention than the Religious Discrimination Bill, they too contain provisions that could undermine the human rights of other Australians, including:
The Religious Discrimination (Consequential Amendments) Bill creates the unnecessary position of Religious Freedom Commissioner
The Government’s own Religious Freedom Review (aka the ‘Ruddock Review’) found it was not necessary to create the position of Religious Discrimination Commissioner within the Australian Human Rights Commission.
Despite this, the Consequential Amendments Bill would do exactly that. Further, it frames this position as a Religious Freedom Commissioner, in contrast to the Age, Disability, Race and Sex Commissioners who are all explicitly appointed as ‘Discrimination’ Commissioners.
Finally, adding insult to injury, the Government would be appointing a Religious Freedom Commissioner when LGBTI Australians still do not have our own Commissioner, more than six years since the introduction of protections on the basis of sexual orientation, gender identity and intersex status.
The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily amends the objects clauses of anti-discrimination laws
This Bill would introduce the following words into the objects clauses of all other Commonwealth anti-discrimination laws:
‘In giving effect to the objects of this Act, regard is to be had to the indivisibility and universality of human rights, and the principle that every person is free and equal in dignity and rights.’
Which sounds innocuous enough, except that in the explanatory notes for the Bill the only other human right that is specifically mentioned by name is ‘the right to freedom of religion.’
These explanatory notes can and will be used by the judiciary in determining how these amended objects clauses affect the interpretation of the Racial, Sex, Disability and Age Discrimination Acts, potentially giving more weight to so-called religious freedom (at a time when we need to be reducing religious exceptionalism, not exacerbating it).
The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily ‘protects’ charities advocating discriminatory marriage
This Bill would also amend the Charities Act 2013 (Cth) to ensure that charities that advocate for only cisgender heterosexual marriage are not de-registered. Specifically, it would include the following in section 11:
‘To avoid doubt, the purpose of engaging in, or promoting, activities that support a view of marriage as a union of a man and woman to the exclusion of all others, voluntarily entered into for life, is not, of itself, a disqualifying purpose.’
Except, when the Marriage Act 1961 (Cth) was amended in 2017, the Charities and Not-for-profits Commission advised Parliament such an amendment was not needed. And, in the two years since then, there is exactly zero evidence of any charity being adversely affected.
Nor is there any justification for singling out this one discriminatory and exclusionary belief for special protection in our charities regulation.
The Human Rights Legislation Amendment (Freedom of Religion) Bill inserts more discriminatory religious exceptions into the Marriage Act
Speaking of the Marriage Act, this Bill would also insert even more religious exceptions into that law. Specifically, new section 47C would explicitly allow religious educational institutions to discriminate in the provision of facilities, goods and services for the purposes of the solemnisation of marriage.
This would permit schools to discriminate against LGBTI couples, divorced people re-marrying and people who had previously cohabitated – even where these facilities, goods and services are provided publicly on a commercial or for-profit basis.
As I have written previously, the amendments that were included in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 already mean we do not currently enjoy genuine marriage equality in this country. We should be aiming to remove those religious exceptions, not entrench them.
I wrote at the beginning of this post that the Religious Discrimination Bill(s) share several similarities with the ongoing Sydney apartment crisis.
But there is also one key difference – while these plans have been drafted, they have not yet been ‘built’. Which means there is still time to avert this new crisis, for the Morrison Government, and Parliament more generally, to amend the Religious Discrimination Bill and its two accompanying laws, and thereby avoid their adverse impact on large numbers of everyday Australians.
However, if the Government and Parliament fail to listen and take action, and instead pass these Bills unamended, they will be condemning women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live under the legislative equivalent of Opal Tower, or Mascot Towers.
We will always be fearful of the next crack to emerge: of the next time we are discriminated against simply because of who we are, entirely lawfully, because of somebody else’s religious beliefs. We will never get to feel at home.
The Religious Discrimination Bill(s) are the legislative equivalent of Opal Tower – but there’s still time to avert a new crisis, if the Government and Parliament are willing to listen.
To find out more about everyday situations in which religious beliefs will be privileged, check out this twitter thread. And if you’ve enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile.
It is two weeks on from the Federal election, in which the Liberal-National Coalition was surprisingly (some might say shockingly) re-elected. It was a disappointing result from an LGBTI rights perspective, given Labor had adopted the most progressive major-party platform on LGBTI issues in history.
The Morrison Government’s position on a range of topics that affect our community is a lot less clear. Now that the dust has settled after the May 18 poll, what does the future hold for LGBTI rights in Australia?
The most immediate issue that confronts the lesbian, gay, bisexual, transgender and intersex community is the potential threat of a Religious Discrimination Bill.
I write ‘potential’ because it remains unclear exactly what type of legislation the Government is proposing to implement its commitment arising from the Ruddock Religious Freedom Review.
On one hand, it could be a Religious Anti-Discrimination Bill, which would add religious belief, including lack of belief, as a protected attribute to Commonwealth anti-discrimination law. This would be welcome, given religious minorities in particular should be protected against discrimination simply because of who they are (something LGBTI Australians have much empathy for).
Indeed, that is what was promised by Attorney-General Christian Porter, in his joint press conference with Prime Minister Morrison in December 2018, when they announced the Government’s response to the Ruddock Review:
“The architecture for discrimination legislation is well-known, it’s not overly complicated. An attribute is defined – such as age or race or sex or disability or, in this case, the adherence to a religion or the right to not adhere to a religion – and then certain prohibitions are placed on people in terms of their treatment of other Australians based on that attribute. So you are protected from discrimination because of that attribute and then there are certain exemptions drafted as is appropriate. I don’t think that that would be a very contentious bill, necessarily, it follows a very standard architecture. But what the Ruddock Report said, is that there is a need for such a bill.
“I would put it to you all this way. In Australia at the moment, if you’re invited to a function at Parliament and at entry to the room of that function, you were denied entry because of the fact that you had a disability or because of your race, or because of your age, or because of your sex, that would be unlawful. But if you were turned away because of your religion, that would not be unlawful in Australia. So this, if you like, is the fifth and final pillar of an overarching architecture that prevents discrimination for Australians, directed to Australians, based on attributes which should never be the basis for discrimination.”
On the other hand, the Government could instead introduce a Religion Pro-Discrimination Bill, which further entrenches the special privileges of religious organisations to discriminate against others, including (but not limited to – see below) LGBTI Australians.
A Religious Pro-Discrimination Bill would present the greatest threat to LGBTI rights in Australia since criminalisation. It is entirely natural for us to feel threatened by this possible development. Indeed, the Government has created the vacuum allowing this fear to arise, given it would not reveal the contents of its proposal before the election (despite Porter saying in December 2018 that: “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”).
And we must do so as a matter of urgency, with Porter indicating that he wants to introduce the legislation – whichever it is – when Parliament resumes in July.
While it is almost certain the Morrison Government will proceed with a Religious Discrimination Bill (of some kind) in the near-term, the future for LGBT students in religious schools is far less clear.
Despite the Prime Minister himself promising to protect LGBT students against discrimination before the end of 2018, he obviously failed to do so. Instead, the day before the election was called, Attorney-General Porter referred the issue of religious exceptions to the Australian Law Reform Commission for review.
At this stage, “[t]he ALRC is planning to release a Discussion Paper on 2 September 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 15 October 2019.” The final report is due by 10 April 2020 (for more details, see the ALRC website).
The LGBTI community must be heavily involved in this process, to ensure that our interests are appropriately considered at every step. This includes advocating for the full removal of the ability of religious schools to discriminate against LGBT students under the Sex Discrimination Act 1984 (Cth), rather than allowing such discrimination to continue just under a different name. And we must engage politically (see below) to pressure the Government to finally fulfil its commitment to protect LGBT kids.
Unfortunately, the election result makes the removal of similar discrimination against LGBT teachers that much more difficult (although not impossible). Ditto for abolishing the exceptions that allow religious organisations to lawfully discriminate against LGBT Australians in employment generally, and in the provision of services.
But that doesn’t mean we give up. It just means we fight harder. Because LGBTI Australians will not truly be equal until we have the right to learn, the freedom to earn and the ability to access services without fear of discrimination on the basis of our sexual orientation, gender identity or sex characteristics.
As after any election, the personnel in Federal parliament have changed (even if perhaps not as much as many LGBTI Australians would have liked). This means we must adapt the targets of our advocacy regarding the above two issues.
In addition to lobbying (where possible) Prime Minister Morrison and Attorney-General Porter, we should also focus on the growing ‘rainbow’ group within the Liberal Party, with lesbian Angie Bell elected to represent Moncrieff in the House of Representatives, joining Trent Zimmerman, Trevor Evans, Tim Wilson and Senator Dean Smith, plus long-term LGBTI ally Warren Entsch.
The likely composition of the new Senate also means that returning Tasmanian Senator Jacqui Lambie now wields significant power, together with the two Centre Alliance Senators from South Australia, Rex Patrick and Stirling Griff. It is not an exaggeration to say that these three Senators will hold our collective fate in their hands on a large number of Bills.
Finally, following Labor’s election loss, and the election of new Opposition Leader Anthony Albanese, the ALP’s positions on all issues, including LGBTI issues, is now up for grabs. We will need to make sure that they do not back-track on any of the positive positions which they took to the election, including the full removal of discrimination against LGBT students and teachers. In this push, we should also engage with Rainbow Labow MPs, including Penny Wong, Louise Pratt, Julian Hill and the newly-elected Queensland Senator Nita Green.
[I have deliberately not mentioned the Australian Greens here, including bisexual Victorian Senator Janet Rice, because their support on LGBTI issues can usually be relied upon].
Senators Jacqui Lambie, Stirling Griff and Rex Patrick will play a significant role in determining what LGBTI law reforms can be achieved – and whether a Religious Pro-Discrimination Bill can be defeated.
One of the main lessons of the marriage equality campaign was the vital role of allies in achieving progress on LGBTI issues. This is equally important in terms of the push to protect LGBT students and teachers against discrimination and – if necessary – to fight against a Religious Pro-Discrimination Bill.
We have seen that the vast majority of Australians are already onside when it comes to protecting LGBT students against discrimination, with the immense public backlash against these exceptions when the Ruddock Review was leaked in October 2018 (and which prompted Morrison’s promise in the first place).
With regards to protecting LGBT teachers, we must work better together with education unions (including the Australian Education Union, and Independent Education Union). The same applies to building our relationship with the ACTU, and union movement more broadly, to remove all religious exceptions from employment law, including the Fair Work Act 2009 (Cth).
Thinking about the potential Religious Pro-Discrimination Bill, the legislation itself presents us with natural allies – because it is not just LGBTI Australians who would be subjected to discrimination as a result.
A Religious Pro-Discrimination Bill could also increase discrimination against women, especially in relation to their marital or relationship status, and their ability to access reproductive health services. Unmarried/single mothers are at particular risk (alongside divorced people generally). It’s time to build bridges between LGBTI and women’s organisations to respond to this common threat.
Finally, perhaps the most important allies we have in this struggle are good people of faith. We simply cannot afford to let this issue be defined as ‘god versus gays’, especially because the majority of religious people support the equality of their fellow citizens – as demonstrated through the same-sex marriage postal survey.
Instead, our enemies are religious fundamentalist groups, like the ACL and some established churches (the formal organisations – not the followers), and any individuals who are acting in bad faith to impose their religious beliefs on others, including demanding the ability to lawfully discriminate against LGBTI people. They are who we are fighting against, not ordinary Australians.
This means that throughout this debate, no matter how ugly it may become, we should strive to be respectful of people’s faith, or lack of faith, in the same way we are fighting for the right to be treated fairly, with decency and respect (some might even say at this point ‘Do unto others…’).
It may seem strange, given the current political environment in which we are operating and the threat of a Religious Pro-Discrimination Bill, to talk about opportunities for progress on LGBTI rights but there are several.
The first is for action to (finally) be taken to stop coercive and invasive surgeries and other medical interventions on intersex children. These human rights violations continue unabated, despite a bipartisan 2013 Senate Inquiry recommending that such surgeries and/or treatments be stopped.
In 2017-18, the Australian Human Rights Commission initiated a new project focusing on ‘Protecting the human rights of people born with variations in sex characteristics in the context of medical interventions’, with a final report expected shortly.
This will be an opportunity for non-intersex LGBT individuals and for LGBT/I organisations to support the work of groups like Intersex Human Rights Australia and their campaign to end these practices once and for all (noting that there is no right-wing, or left-wing, justification for such interventions, so there is no political rationale for the Government not to intervene).
The second opportunity is on ex-gay or ex-trans therapy, with the Morrison Liberal-National Government providing the following response to Equality Australia’s pre-election survey:
“As the Prime Minister has said, the Morrison Government does not support LGBTIQ+ conversion therapy. The use of conversion therapy has long been discredited with no scientific or medical evidence to support its use.
“The Morrison Government remains committed to addressing the mental health of all Australians, including the LGBTI community, and this also relates to opposition to gay conversion therapy. The Government will work with the states, which have legal responsibility in this area, to ensure such practices are not supported or occurring” [emphasis added].
We should take them at their word and seek to make urgent progress to end this psychological torture.
The other main opportunities lie at state and territory level. This includes the ongoing campaign to provide trans and gender diverse people with better access to appropriate identity documentation.
With Tasmania recently passing best practice laws that allow individuals to update their birth certificate on the basis of self-identification – without the need for surgery, other treatment or medical approval – we must pressure the seven other jurisdictions to quickly follow suit.
It also includes working towards reform of state and territory anti-discrimination laws. Because, while the Sex Discrimination Act 1984 allows discrimination against LGBT students and teachers under Commonwealth law, some states and territories have adopted preferable provisions.
For example, last year the ACT amended its Discrimination Act 1991 to protect both LGBT students and teachers in religious schools against discrimination. Queensland and the Northern Territory already protected LGBT students against discrimination, while once again Tasmania has best practice laws in this area (their Anti-Discrimination Act 1998 only allows religious organisations to discriminate on the basis of religious belief, and not on the basis of sexual orientation, gender identity or intersex variations of sex characteristics).
Given the vulnerability of LGBT kids in particular, there is no reason why we should not pressure state and territory governments to amend their own laws, even before the ALRC completes its report.
I have written about the threats we potentially face, as well as some of the uncertainty that now confronts us. But there is one thing that is absolutely sure: nothing will get better unless we act to make it better.
The Government won’t make changes on our behalf out of the kindness of its heart. Just like with countless LGBTI law reforms in the past, the only way to improve our situation – especially for vulnerable members of our community – is to get involved and collectively force them to do it.
This will be especially important if the Morrison Government decides to introduce a Religious Pro-Discrimination Bill. We will need all hands on deck, including people who (completely understandably) needed to take time away after the horrific experience that was the same-sex marriage postal survey.
And so I would conclude by encouraging you to join one or more of the many LGBTI advocacy organisations that will be fighting on our behalf in the coming months and years. This includes:
Finally, I will continue writing regular articles about the campaign to protect LGBT students and teachers in religious schools against discrimination, as well as key developments surrounding the Religious Anti- or Pro-Discrimination Bill. To receive these posts direct to your email, please sign up via the right-hand scroll bar on the desktop version of this blog, or near the bottom of the page on mobile. Thanks.
In the last 18 months, anti-discrimination law reform has been the subject of considerable public attention.
Following the Ruddock Religious Freedom Review, and including multiple Senate inquiries, hopes had been raised that lesbian, gay, bisexual and transgender (LGBT) students might finally be protected against discrimination by religious schools under Commonwealth law.
So far, those hopes have been dashed. Despite promising to do so, the Morrison Liberal-National Government failed to pass any changes to the Sex Discrimination Act 1984 (Cth) to repeal or limit the exceptions that allow religious schools to discriminate against LGBT kids prior to the election being called.
In this article, I will attempt to explain how we got here (including where things stand now), who is to blame and what will likely happen from here.
How did we get here?
In November 2017, then-Prime Minister Malcolm Turnbull referred the issue of whether Commonwealth law adequately protects religious freedom to a panel headed by former Liberal Attorney-General Philip Ruddock.
The Ruddock Review investigated a wide range of issues, including religious exceptions to LGBTI anti-discrimination laws, before handing its report to Turnbull in May 2018 – which the Liberal-National Government then sat on.
In October 2018, the Sydney Morning Herald published the leaked recommendations of the Review, focusing on proposals to clarify the existing right of religious schools to discriminate against, and expel, LGBT students.
This prompted significant public outcry, including from many parents who had no idea that religious schools, funded by enormous amounts of taxpayers’ money, could lawfully mistreat vulnerable kids in such an abhorrent and appalling way.
New Prime Minister Scott Morrison responded by saying his Government would amend the Sex Discrimination Act to prohibit discrimination against LGBT students before the end of the year (2018). It is probably also useful to remember he did this in the context of the lead-up to the Wentworth by-election, which the Government feared losing to a backlash from moderate voters (narrator: they did).
That Committee reported in late November, recommending that “the Australian Government amend section 37 and remove subsection 38(3) of the Sex Discrimination Act 1984, and amend any other relevant legislative provisions, to prohibit discrimination against students on the grounds of the protected attributes in the Act” [Recommendation 3].
This report was immediately followed by Labor introducing their own Bill, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. As the name suggests, its sole focus was on removing discrimination against students, in line with what Morrison had promised in October.
However, instead of passing it as he had committed, the Senate referred this Bill off to a second inquiry over the summer break – meaning LGBT students would not be protected for the start of the 2019 school year.
Morrison and Attorney-General Christian Porter simultaneously provided the Government’s response, in which they abandoned the earlier, explicit promise to protect LGBT students at religious schools, instead committing to send the entire issue of religious exceptions in Commonwealth, state and territory anti-discrimination laws to the Australian Law Reform Commission (ALRC) for yet another review.
It was therefore unsurprising when, in February 2019, the Government-dominated Senate Committee inquiring into Labor’s Bill recommended that not only should Labor’s Bill not be passed, but that “the bill, circulated amendments and all relevant matters be referred to the Australian Law Reform Commission for full and proper consideration.”
Given the Liberal-National Government’s ongoing opposition to legislation addressing this issue, that meant no amendments to the Sex Discrimination Act 1984 were passed in February or March.
Despite the flurry of activity on this issue over the past 18 months, and the past six months in particular, the legal situation now is unchanged:
Under the Sex Discrimination Act 1984 (Cth), religious schools are legally permitted to discriminate against, and expel, lesbian, gay, bisexual and transgender students on the basis of who they are.
They are also free to fire, and refuse to hire, LGBT teachers and other staff, despite the significant amount of taxpayers’ money used to pay their salaries.
This is obviously incredibly disappointing, especially given the supposed bipartisan commitments to address this issue made late last year. Which prompts the equally-obvious question:
Who is to blame?
While responsibility for major #auspol policy failures like this can usually be shared around, the blame for the lack of action in this particular area lies squarely at the feet of the Morrison Liberal-National Government.
The have failed to progress anti-discrimination law reform in four key ways:
The Morrison Liberal-National Government refused to introduce its own Bill to protect LGBT students
Despite Prime Minister Morrison’s October 2018 commitment to introduce and pass amendments to the Sex Discrimination Act to protect LGBT students before the end of the year, his Government never actually introduced its own Bill to make these changes. Which, you’d have to admit, makes it extremely difficult to actually pass anything.
Indeed, if the Liberal-National Government was ‘fair dinkum’ about fulfilling its promise, it would have at least tried to move its own legislation on this issue. With a Prime Minister who is quite fond of saying ‘if you have a go, you get a go’, his Government didn’t bother to have a go at changing this law – meaning LGBT students don’t get a go at learning in a discrimination-free environment.
The Morrison Liberal-National Government sought to introduce new powers to discriminate
As noted above, the Labor Opposition and Greens both introduced their own Bills to protect LGBT students, and LGBT students and teachers, respectively. The Labor Bill in particular was subject to Senate debate in late 2018, before being referred to the second Committee inquiry.
During this debate, the Liberal-National Government introduced amendments that would ensure that, even if religious schools lost their specific exception in section 38(3) of the Sex Discrimination Act, they would continue to be able to discriminate under the general religious exception in section 37(1)(d) [Government amendment KQ147].
They also sought to expand the reasonableness test for indirect discrimination to include consideration of whether any “condition, requirement or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed” [Government amendments KQ148, 150 and 151]. This would have effectively expanded rather than restricted the range of groups who could be discriminated against because of religious beliefs to include intersex students as well (among others).
Finally, the Government wanted to allow religious schools to discriminate against LGBTI students if it was part of teaching activity (broadly defined to capture “any kind of instruction of a student by a person employed or otherwise engaged by an educational institution”) as long as it was done “in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” [Government amendment KQ149].
If any or all of the Morrison Government’s amendments had been passed, it would have meant religious schools could have continued to discriminate against LGBT students – it just would have been done under different sections of the Act.
The Morrison Liberal-National Government tried to limit changes to preventing expulsion only
Another way in which the Government undermined anti-discrimination law reform was by narrowing its scope to preventing religious schools from expelling or refusing to enrol LGBT students, while continuing to allow them to discriminate against, and mistreat, vulnerable kids in other ways.
This approach formed part of Prime Minister Morrison’s early rhetoric following the leaking of the Ruddock Review Recommendations in October 2018, as he focused on expulsion: “I don’t think if someone’s at a school they should be kicked out because they have a different sexuality to what might be believed to be the appropriate thing by a particular religious group” [emphasis added].
While subsequent debate seemed to broaden to cover all forms of discrimination against LGBT students, in February 2019 Government Senators once again tried to limit the reforms to preventing expulsion only, with The Australian reporting Government members of the Senate Committee sought a deal with the Opposition on this issue (‘ALP stops bid to protect gay kids’, The Australian, 19 February 2019).
Thankfully, the Opposition rejected this narrow approach. This is important because there are many different ways in which religious schools can discriminate against LGBT kids, without necessarily expelling them, and they are all harmful (see, for example, my own story here: ‘The longest five years’ ).
Only removing the power to expel, while allowing schools to mistreat students in myriad other ways, would have been completely inadequate and inappropriate.
The Morrison Liberal-National Government has done everything in its power to delay reform
There is absolutely no reason why the Commonwealth Government, and Parliament, could not have passed reforms to the Sex Discrimination Act, protecting LGBT students, before the end of 2018.
How can I say that so confidently? Because the ACT Government did exactly that, passing it owns reforms – based on the best practice Tasmanian Anti-Discrimination Act 1998 – between the leaking of the Ruddock Review Recommendations in October and the end of the year. These reforms, which protect both LGBT students and teachers, will commence by 6 June 2019 at the latest.
Instead, at Commonwealth level, we have had Labor and Greens Bills, and two Senate inquiries, but no Government legislation and no change to the law.
Even worse, we now have a reference to the ALRC that won’t report on the issue until 10 April 2020, meaning any Bill arising from it will likely not be debated until the second half of next year. Consequently, any reforms to protect LGBT students wouldn’t take effect until the start of 2021 – at the earliest.
Attorney-General Christian Porter
It is clear, from these four arguments, that the Morrison Liberal-National Government is responsible for the fact LGBT students are still not protected against discrimination as we start the federal election campaign.
What people may not be aware of is that they are also responsible for two major threats to LGBT anti-discrimination laws in the near future.
The first is the ALRC inquiry itself. Its terms of reference includes the following:
consideration of what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australia law should be made in order to:
limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.
Now, some people might see the first dot point, and specifically the reference to limiting or removing religious exemptions, as encouraging. And it could be – except that this is also what religious fundamentalist organisations, such as the Australian Christian Lobby, also want (for example, the ACL’s own submission to the Ruddock Review stated that ‘State and Commonwealth Anti-Discrimination laws establish an unhelpful and incomplete framework of religious exemptions which inadequately balance the right of religious freedom against the right to non-discrimination’ before recommending ‘that existing exemptions in anti-discrimination law re reframed as ‘general limitations clauses’).
The remainder of that clause – ‘while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos’ – is where the danger lies. Namely, religious exceptions may simply be replaced by the introduction of positively-framed rights to discriminate against LGBT people.
The second dot point is just as problematic. Despite the fact there is limited, or no, evidence that people expressing discriminatory views of marriage are suffering real-world adverse consequences, the ALRC is supposed to give significant attention to ‘protecting’ them.
This includes undermining the best practice LGBTI anti-vilification laws found in the Tasmanian Anti-Discrimination Act 1998 (which are equivalent to section 18C of the Racial Discrimination Act, and the primary reason why the RDA has been raised in this context) [For a comparison of LGBTI anti-discrimination and anti-vilification laws, click here].
The second threat comes from another part of the Morrison Liberal-National Government’s response to the Ruddock Religious Freedom Review: its commitment to introduce a Religious Discrimination Bill.
Once again, this should be a positive development. Most people interested in human rights, including myself, support the inclusion of religious belief or lack of belief as a protected attribute in anti-discrimination law in jurisdictions where it is not currently protected (specifically, the Commonwealth, New South Wales and South Australia). This will help ensure religious minorities are protected against discrimination in education, employment and service delivery.
On the other hand, a Religious Discrimination Bill could become a vehicle to include positively-framed rights for religious individuals and organisations to discriminate against others, becoming a stealth ‘Religious Freedom Bill’, in the same way that some Liberal-National MPs and Senators tried to turn a same-sex marriage bill into anti-LGBTI equality legislation.
The truth is we will not know which option, good or bad, the Government is pursuing until we see the text of the Bill itself. Which is why Attorney-General Porter’s announcement that the Religious Discrimination Bill would not be released until after the election is so worrying (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).
Despite saying in December at the release of the Ruddock Religious Freedom Review that “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”, LGBTI Australians will now be kept in the dark on a key new law that could have a significant impact on our rights (although it is probably safe to assume major religious organisations have been consulted on its drafting).
Not only has the Morrison Liberal-National Government stopped laws to protect LGBT students against discrimination from passing during the 45th Parliament, they have already started two processes (the ALRC Inquiry, and the Religious Discrimination Bill) that could see LGBT rights go backwards in the 46th.
What about the other parties?
The Labor Party has largely been supportive of LGBTI rights throughout this (sometimes convoluted, but consistently frustrating) process.
As discussed earlier, they introduced the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that does just what it says on the box. They have been very clear they will protect LGBT students in religious schools against discrimination if they are elected next month.
However, the ALP has been somewhat less clear in terms of their plans for teachers. While committing to remove the exceptions that allow religious schools to fire, and refuse to hire, LGBT teachers and other staff, they have also made vague comments about introducing amendments to ensure religious schools can continue to impose their ‘ethos and values’. Bill Shorten and the Labor Party need to outline exactly what they intend to do on this issue, before the election.
[Update 11 May 2019: While Labor have reiterated their intention to protect LGBT teachers and other staff, they have still not clarified the scope of any amendments to protect the ‘ethos and values’ of the school. More concerningly, they have indicated they will wait for the ALRC to conduct its inquiry into religious exceptions before protecting LGBT students or teachers. This is unacceptable – students deserve to be protected as quickly as possible, and there is a Bill ready and waiting to be reintroduced. It should be one of the first items of business of a new parliament.]
The Greens are obviously supportive of removing exceptions that allow discrimination against both LGBT students and teachers. They have also indicated that religious exceptions should be removed in other areas (including health and community services), as well as in the Fair Work Act 2009 (Cth).
In terms of the minor parties, the right-wing fringe groups (including Pauline Hanson’s One Nation, Cory Bernardi’s Australian Conservatives and the racist Senator who shall not be named) are exactly as homophobic and transphobic as you would expect, and don’t deserve our attention.
However, one minor party earns a special mention – although not for reasons they would appreciate. That is because the Centre Alliance (the renamed Nick Xenophon Team) supported some of the Government’s amendments that, in practice, would have permitted religious schools to discriminate against LGBT students. In fact, the position of the Centre Alliance is the reason that Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill could not at least pass the Senate in late 2018.
What happens next?
The outcome of the federal election on Saturday 18 May will determine what happens next in terms of anti-discrimination law reform.
If the Morrison Government is returned, it is unclear whether LGBT students will be protected, and if so what that change would look like. Even if they remove the specific religious exceptions in the Sex Discrimination Act, it is highly likely they will simply replace them with new, positively-framed rights for religious organisations to discriminate against LGBT people, including in education.
Any reforms under a re-elected Liberal-National Government will also be delayed until at least the second half of 2020 (after the ALRC has completed its inquiry), meaning LGBT students in religious schools will be exposed to discrimination until at least 2021.
And, as discussed above, both the ALRC inquiry itself, and the imminent (although still secret) Religious Discrimination Bill, could see LGBTI rights actually go backwards under a 2nd term Morrison Government.
If the Labor Party is elected, on the other hand, it is highly likely that LGBT students will be protected against discrimination as a matter of priority. It is also probable that LGBT teachers and other staff will be protected in some form – although it will be up to LGBTI organisations to push them to make sure any such changes are as straight-forward as possible, and not undermined by ‘ethos and values’-style amendments (an increased Greens presence in the Senate would also assist in this respect).
Nevertheless, we must remember that the only thing in this area that is guaranteed to happen, every school day of this election campaign – and for months, and possibly years, afterwards – is that too many LGBT students will attend a school where they can be lawfully discriminated against.
And the primary reason is that Prime Minister Scott Morrison broke his promise, made just six months ago, to do something about it.
Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.
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