Who pays for homophobia, biphobia and transphobia?

Prejudice against the lesbian, gay, bisexual and transgender (LGBT) community comes with a hefty price tag.

 

It is paid for by the individuals who are subject to direct and indirect acts of discrimination, being denied employment, or services, because of who they are, who they love or how they identify.

 

And by others, who self-censor, missing out on opportunities and on full participation in society, because of the legitimate fear of such discrimination.

 

It is paid for in the adverse mental health impacts experienced by the LGBT community, with depression, anxiety and other mental illness caused by homophobia, biphobia and transphobia.

 

And most tragically by those who end their lives as a consequence.

 

It has even been estimated that homophobia costs the global economy at least $119.1 billion in lost GDP every single year (and presumably more if the effects of biphobia and transphobia are included).

 

But, in this post, I want to take this question – who pays for homophobia, biphobia and transphobia – more literally.

 

In essence, who provides the money that funds anti-LGBT prejudice, who allows it to occur in the first place?

 

The answer (or at least one of the answers), sadly, is all of us. Let me explain.

 

You are probably aware that most religious schools in Australia currently enjoy special privileges that permit them to discriminate against LGBT students, teachers and other staff.

 

This includes religious exceptions such as section 38 of the Commonwealth Sex Discrimination Act 1984, as well as equivalent anti-discrimination laws in New South Wales and Victoria.

 

In fact, Tasmania is the only Australian jurisdiction that does not allow religious schools to discriminate against teachers and students on the basis of sexual orientation, gender identity or relationship status.

 

All of the other states and territories allow at least some discrimination against LGBT students, or teachers, or in many cases both (Queensland actually comes closest to matching Tasmania’s ‘best practice’ approach: it does not permit discrimination against LGBT students, while LGBT teachers are subject to a ‘don’t ask, don’t tell’ regime – although that still means they can be fired if they even mention having a same-sex partner in the workplace).[i]

 

And you likely also know that in Australia, religious schools receive significant government funding.

 

But you are probably not aware just how much public money – taxpayers’ money, your money – is given to these institutions.

 

According to the 2018 Budget, the Commonwealth Government will provide:

 

  • $11.829 billion to non-government schools in 2018-19
  • $12.452 billion in 2019-20
  • $13.145 billion in 2020-21, and
  • $13.821 billion in 2021-22.

 

That’s a total of $51.247 billion in taxpayers’ money going to non-government schools in just four years.

 

In fact, it’s even worse than that. In September, the Morrison Liberal-National Government announced an extra $1.1 billion for non-government schools over the next four years (and $4.5 billion over the next decade).

 

And these numbers don’t include the funding provided by state and territory governments.

 

Based on averages published by the Australian Curriculum, Assessment and Reporting Authority (ACARA), state and territory governments provide approximately one-third of the amount funded by the Commonwealth.

 

That means an extra $17.43 billion of public funding over the next four years alone, bringing the overall total to $69.78 billion.

 

Now, a couple of important caveats. Given religious schools in Tasmania are not permitted to discriminate against either LGBT students or teachers, let’s subtract $1.438 billion from this figure (the $1.079 billion allocated to Tasmanian non-government schools in the Commonwealth Budget, plus an extra third for additional state government funding).

 

And, with a small proportion of non-government schools being non-religious in nature and therefore generally not allowed to discriminate (except in NSW, where the Anti-Discrimination Act 1977 permits all private schools, religious or otherwise, to discriminate against homosexual and transgender students and teachers), let’s be generous and subtract another 5%.

 

That still leaves $64.92 billion in Commonwealth, state and territory government funding allocated to religious schools over the next four years even though they are allowed to discriminate against LGBT teachers, students or both.[ii]

 

And who picks up the tab for this Government-sponsored homophobia, biphobia and transphobia? You do of course.

 

According to the Australian Bureau of Statistics, in June 2017 there were 19.963 million Australians aged 15 and over (and therefore potentially of taxpaying age).

 

This means that for every Australian individual taxpayer Commonwealth, state and territory governments will collectively give $3,252 over the next four years to religious schools that have the legal right to discriminate against LGBT students and/or teachers. Roughly $800 every year, per person, spent subsidising anti-LGBT prejudice.[iii]

 

What makes these figures truly offensive, obscene even, is remembering that this money is coming from LGBT teachers, who are paying for religious schools to have the ability to deny them employment in up to 40% of the jobs for which they are qualified.

 

From the parents of LGBT children, who are paying for the special privileges of these institutions to reject their child’s enrolment simply because of their sexual orientation or gender identity.

 

And from same-sex couples in rainbow families, who are paying for religious schools to deny their children admission on the basis of their parents’ relationship.

 

Indeed, the homophobia, biphobia and transphobia of religious schools is being paid for by the taxes of all LGBT Australians, our families, friends and allies.

 

And by the 61.6% of voters who just last year said that we are, or should be, equal irrespective of our sexual orientation or gender identity.

 

Despite that result (or perhaps even because of it) the Liberal-National Government seems intent on making what is a horrible situation worse.

 

Former Prime Minister Malcolm Turnbull commissioned the Ruddock Review of Religious Freedom during last year’s same-sex marriage parliamentary debate.

 

The contents of that review’s final report, delivered to the government in May but not yet released to the public, were leaked yesterday to Fairfax newspapers, and appear to support the further entrenchment, and possible expansion, of the ‘right’ of religious schools to discriminate against LGBT students and teachers.

 

This could potentially include the Commonwealth Government using the Sex Discrimination Act 1984 to override the anti-discrimination laws of states and territories like Tasmania (and to a lesser extent Queensland) that have moved to limit these special privileges.

 

New Prime Minister Scott Morrison does not seem opposed to such a development, saying that the right to discriminate against gay students ‘already exists’ (ignoring the fact it has been curtailed in some jurisdictions).

 

Three weeks’ ago he also told Sky’s Paul Murray that:

 

Let me give you this example. I send my kids to a Christian school, I think that Christian school should be able to ensure they can provide education consistent with the Christian faith and teaching that I believe as a parent. That’s why I’m sending them there. I don’t think that school should be told who they can and can’t employ, or have restrictions on them in ensuring that they’re delivering to me – the parent, their client, their customer – what I’ve invested in for my children’s education.

 

What he fails to mention is that, by virtue of public funding for religious schools, we are all ‘investing’ in his children’s education.

 

And what the Ruddock Review, Prime Minister Morrison and some members of his Government seem to want is for all of us to pay even more to allow more religious schools to discriminate against more LGBT students and teachers.

 

Well, fuck that. Enough is enough.

 

It’s time we stopped handing over money so that religious schools can fuck over LGBT students.

 

And it’s time we stopped coughing up cash so that these institutions can tell LGBT teachers and other staff to fuck off.

 

These human rights violations have gone on long enough.

 

To borrow a phrase from the American Revolution, there should be no taxation without anti-discrimination protection. Or even more simply:

 

No Taxation For Discrimination.

 

Instead of being an excuse for expanding religious exceptions in relation to religious schools, the Religious Freedom Review should be the catalyst for these special privileges to finally be subjected to proper scrutiny.

 

If the Morrison Government introduces amendments to entrench and expand the exceptions in section 38 of the Sex Discrimination Act, and potentially to override the best practice approach of the Tasmanian Anti-Discrimination Act, it will be up to Labor, the Greens and the cross-bench to block it (for his part, Opposition Leader Bill Shorten is making the right noises, saying “The fact is every child is entitled to human dignity. We shouldn’t even be having this debate”).

 

The pressure will also be on Liberal moderates, who like to claim credit for delivering marriage equality (they didn’t, but that’s a post for another day), to stand up and help defeat proposals that will increase discrimination against that same community.

 

But stopping things from getting worse would hardly be a heroic achievement. The religious exceptions of the Sex Discrimination Act, and the equivalent laws in most states and territories that promote anti-LGBT prejudice, must be repealed.

 

Because LGBT teachers should be employed on the basis of their abilities, not their orientations or identities.

 

And LGBT students should not be refused enrolment, expelled, or discriminated against in any way, shape or form, just because of who they are. Not one student. Not ever.

 

While the rest of us shouldn’t be forced to pay for it, literally funding the homophobia, biphobia and transphobia of religious schools.

 

Bottom line: if religious schools want one cent from us, they must be decent to us, and that means ending their special privileges to discriminate against LGBT students, teachers and other staff once and for all.

 

To take action, please sign and share this petition from just.equal: www.equal.org.au/protectourkidsandteachers

 

aud100front

Your hard-earned dollars are funding anti-LGBT prejudice.

 

Footnotes:

 

[i] For more information about these laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] I am not suggesting that all of these schools would discriminate against LGBT students and/or teachers. In practice, a number provide welcoming environments irrespective of sexual orientation and gender identity. However, these schools retain the legal right to discriminate on these grounds.

[iii] By way of comparison, the Commonwealth Government will provide $245.6 million over the next four years to another inappropriate and unjustified school funding initiative (the National School Chaplaincy Program), or the equivalent of $12.30 for every Australian aged 15 and over. On the other hand, the Turnbull Government, of which Scott Morrison was Treasurer, axed the $8 million Safe Schools program in 2016 – in effect, they could not even be bothered spending 40c per taxpayer, spread over four years (so just 10c per taxpayer per year), to help address homophobia, biphobia and transphobia in schools.

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Do you feel proud, Malcolm?

Update 18 February 2017:

 

Over the past five years I have written to a number of Immigration Ministers (including Chris Bowen and Brendan O’Connor under Labor, and Scott Morrison under the Coalition), expressing concerns about the mistreatment of LGBTI people seeking asylum, and especially the policy of detaining, processing and resettling LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and, until May 2016, Nauru).

 

It is fair to say that I have received an equal number of disappointing replies to my correspondence – my letters, and the responses to them, are published here.

 

I was prompted to write again in October 2016, this time to Prime Minister Malcolm Turnbull, following the exchange between Labor Senator Louise Pratt and the Secretary of the Department of Immigration and Border Security, Mr Michael Pezzullo, at Senate Estimates.

 

During that exchange, not only did Mr Pezzullo display a stunning lack of awareness of the ongoing criminalisation of homosexuality in our nearest neighbour, he also seemed uninterested in the issue of how PNG’s criminal laws might impact LGBTI people seeking asylum sent there by the Australian Government.

 

Predictably – although still shocking – Mr Pezzullo argued that Australia’s obligation towards these people seeking asylum ended at the point of transfer to Manus Island, and therefore we collectively bore no responsibility for ensuring that their human rights were respected.

 

The full letter I wrote to the Prime Minister is reproduced below. Almost four months later I have finally received a response, not from Mr Turnbull, nor even from the current Immigration Minister Peter Dutton, but instead from the Department of Immigration of Border Protection. This is what they sent:

 

Dear Mr Lawrie

 

Thank you for your correspondence of 9 November 2016 to the Prime Minister, the Hon Malcolm Turnbull MP, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. Your correspondence has been referred to the Minister for Immigration and Border Protection as the matters raised fall within his portfolio responsibilities. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I apologise for the delay in responding.

 

As out lined in the Department’s response to your previous letters to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, and the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, Australia takes its international obligations seriously, including those under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

 

As previously advised, the Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to a regional processing country where any asylum claims they may have will be assessed. The Government has signed Memoranda of Understanding with the Governments of Nauru and Papua New Guinea (PNG), which support this.

 

As previously noted in the Department’s response to your letter to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, any claims made against a regional processing country by the IMA, including claims concerning the treatment of homosexuals in the regional processing country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed regional processing country, or an alternative regional processing country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.

 

As previously advised, the enforcement of PNG domestic law is a matter for the Government of PNG. The Australian Government is aware of laws relating to homosexual activity in PNG but also understand that there have been no reports of prosecutions under those laws since 2012. As of May 2016 same-sex activity is legal in Nauru.

 

Further, I confirm that if homosexual activity should occur in the Regional Processing Centres, there is no mandatory obligation under PNG or Nauru domestic law for Australian officers or contracted service providers to report such activity to the respective Government or police.

 

Thank you for brining your concerns to the Government’s attention.

 

Yours sincerely

[Signature withheld]

A/g Director ABF Ministerial Correspondence Section

Support Group – Australian Border Force

14 February 2017

 

There are obviously a number of worrying statements in this letter, including:

 

  • The Department of Immigration and Border Protection has reiterated the process that LGBTI people seeking asylum who arrive by boat must, in the short period between arrival and transfer, declare their sexual orientation, gender identity and intersex status, and express their specific concerns about being detained in PNG. This ignores the lived experience of LGBTI people seeking asylum, their often legitimate safety concerns in disclosing their status especially in close proximity to other people seeking asylum who may be unaware and/or not accepting of them, and the fact that for many people seeking asylum it takes months or even years for them to disclose anti-LGBTI persecution as the basis of their refugee claim. It also presumes that they are aware of the current criminal laws of Papua New Guinea, something of which even the Secretary of the Department of Immigration and Border Security was ignorant.

 

  • The letter also repeats previous ‘assurances’ that there is no mandatory reporting obligation in relation to homosexual activity in the Manus Island detention facility. However, this avoids the real problem – the criminal laws of PNG do apply to LGBTI people seeking asylum and refugees on Manus Island, and homosexual conduct can be reported to PNG police. The mere threat of such referral is sufficient to cause real fear among LGBTI people in this situation, alongside legitimate safety concerns (after all, it is difficult to report anti-LGBTI violence to police when the same authorities can prosecute you for simply being who you are).

 

Overall, then, there is nothing in the response from the Department of Immigration and Border Protection to suggest that the situation for LGBTI people seeking asylum detained on Manus Island will improve anytime soon. Shamefully, the human rights abuse of LGBTI people put there by the Australian Government will continue for the foreseeable future. Which means that our responsibility to stand up for them, and campaign for change, must continue too.

 

Original Post:

 

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

 

Tuesday 25 October 2016

 

Dear Prime Minister Turnbull

 

LGBTI Refugees and People Seeking Asylum

 

I am writing to you about a subject that is incredibly important, but one that does not often attract significant attention – from the media, from the public and, above all, from the Australian Government.

 

That subject is the mistreatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees, and people seeking asylum, including the decision by successive Australian Governments to detain, process and even seek to resettle these people in countries that criminalise homosexuality.

 

I believe that this approach, exposing people who have sought Australia’s protection to persecution and prosecution in other countries, simply because of who they are, is a fundamental breach of human rights.

 

I have expressed concerns about this mistreatment from the very beginning of Australia’s current offshore processing regime. Within one month of the passage of legislation authorising the removal of people seeking asylum who arrived in Australia by boat to Nauru and Manus Is, Papua New Guinea (PNG) in August 2012, I wrote to both then Immigration Minister Chris Bowen, and then Shadow Immigration Minister – and now Treasurer – Scott Morrison.

 

In that letter I asked: “Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?

 

“Are you aware that homosexuality is current illegal in all three countries[i] to which the Australian Government currently intends to send asylum seekers? [And] Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian government?”

 

It took nine months to obtain a reply, not from Minister Bowen, nor from his successor (Brendan O’Connor), but instead from the Department of Immigration. But the reply I did receive was incredibly disappointing.

 

Not only did it fail to answer whether LGBTI people transferred to Nauru and PNG could be subject to criminal prosecution, it then indicated that, in order to avoid the risk of mistreatment on the basis of sexual orientation, gender identity or intersex status in those countries, people seeking asylum needed to raise those concerns in the extremely short ‘window period’ prior to transfer[ii].

 

It seems the Australian Government was completely uninterested in LGBTI people transferred to Nauru and PNG if they only disclosed their sexual orientation, gender identity or intersex status after being transferred.

 

Someone else who was uninterested in this subject was Shadow Immigration Minister Scott Morrison, who never even bothered to reply to my correspondence.

 

Undeterred, following the change of Government in September 2013 and with Mr Morrison assuming the role of Minister for Immigration and Border Protection, I wrote to him again in February 2014.

 

In that letter I repeated my concerns about the mistreatment of LGBTI refugees and people seeking asylum transferred to Manus Island and included reference to the Amnesty International Report This is Breaking People, which had found that:

  • “Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
  • Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there [and]
  • Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police…”

 

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

 

This time around, it only took the Department of Immigration and Border Security five and a half months to respond to my concerns[iii]. Their underwhelming response included the following statement:

 

“The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

 

“If homosexual activity should occur in the [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted service providers to report such activity to the PNG Government or police.”

 

In short, the then Australian Government – of which you were a senior Minister – rejected the claim that there was mandatory reporting of ‘homosexual activity’ to PNG police, but explicitly did not deny that the laws of that country, outlawing sex between men, applied to the refugees and people seeking asylum that we, as a country, had placed there.

 

In March of this year, I raised the issue of the mistreatment of LGBTI refugees and people seeking asylum again, this time through a submission to the Senate Legal and Constitutional Affairs Committee inquiry into conditions and treatment of asylum seekers and refugees in Nauru and PNG.

 

Unfortunately, that Senate inquiry lapsed due to your calling of a double dissolution election but, before Parliament was dissolved, the Committee issued an interim report, including the following paragraph:

 

“1.57 The committee received some evidence focused on the situation of lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the [Regional Processing Centres]. Mr Alastair Lawrie noted that male homosexual conduct remained a criminal offence in both Nauru[iv] and PNG, and expressed the view that ‘the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.’ Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual asylum seekers in the [Regional Processing Centres], and the lack of appropriate health and community services in the two countries…”

 

Thankfully, post-election the Senate has decided to initiate a new inquiry looking at the issue of abuse, self-harm and neglect of asylum seekers in Nauru and PNG, and its investigation is ongoing.

 

On a more negative note, however, it is unclear how the Government will respond to any findings from such an inquiry, given Liberal and National Party Senators recommended, in the interim report, that “examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

 

Coincidentally, it is Senate Estimates that leads me to write to you, in your role as Prime Minister, today.

 

Last Monday, 17 October 2016, during the Legal and Constitutional Affairs Committee’s Senate Estimates Hearing of the Department of Immigration and Border Protection, there was an extraordinary exchange between WA Labor Senator Louise Pratt, and Departmental Secretary Mr Michael Pezzullo.

 

And by extraordinary, I mean extraordinarily dismissive of the legitimate concerns of Senator Pratt, and others including myself, about the mistreatment of gay, bisexual and same-sex attracted refugees and people seeking asylum placed on Manus Island by successive Australians Governments.

 

I have included the full text of this exchange as an Attachment with this letter[v]. I strongly encourage you to read it. If you do, you will see how little priority has been given to this issue, including by the Department of Immigration and Border Protection under the Prime Ministerships of your predecessors and now of course under you.

 

First, it was surprising to witness, via the following exchange, Mr Pezzullo appear not to know that male homosexuality is criminalised under PNG law:

 

“Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not.
Senator.

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG.”

 

Given, as we have seen above, I have raised this issue with successive Ministers for Immigration, and received multiple responses from the Department of which he is now the head, not to mention the ongoing advocacy on this subject by organisations like the Human Rights Law Centre, Amnesty International, Kaleidoscope Human Rights Foundation and NSW Gay & Lesbian Rights Lobby, it is alarming to hear the Secretary’s lack of knowledge about the risk of prosecution for LGBTI[vi] people detained and processed on Manus Island.

 

Second, and less surprisingly but even more worryingly, was the distinct lack of concern on display by Mr Pezzullo, with the implication that the mistreatment of LGBTI refugees and people seeking asylum was not something that had crossed his desk, or that he had actively turned his mind to, in his two years as Secretary:

 

“Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer.” [And later]

“Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.”

 

Third, and perhaps least surprising – but most worrying – of all, was the position stated by Mr Pezzullo, at multiple points, that the Australian Government has no responsibility towards LGBTI refugees and people seeking asylum that it has sent to Manus Island after they have been transferred. For example:

 

“Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 2 1⁄2 years; the Australian government acquitted its nonrefoulement obligations over 2 1⁄2 years ago, at a minimum—“ [And later]

“Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.”

 

In effect, Mr Pezzullo was arguing, on behalf of the Australian Government – your Government – that, once Australia had transferred refugees and people seeking asylum to Manus Island, and unless those LGBTI refugees had explicitly raised concerns in the hours or at most days between their arrival by boat and their transfer, Australia had no ongoing responsibility towards them.

 

Now, Mr Pezzullo may or may not be correct from a legal viewpoint. I am sure there are human rights advocates, and potentially courts and tribunals both in Australia and in Papua New Guinea, who might take a different view.

 

But he is definitely wrong in every other respect. Australia, and the Australian Government, absolutely has a responsibility towards LGBTI refugees that, through its actions, it has caused to be sent to Manus Island for detention, processing and even resettlement.

 

It has a moral obligation. An ethical obligation. A social obligation. A human obligation.

 

These are people who sought the protection of the Australian Government, which then chose to send them to countries where, far from being safe from persecution, they were – and still are – at risk of criminal prosecution simply because of who they are.

 

I cannot see how anyone could possibly assert that the successive Australian Governments, and Prime Ministers, who have created this situation and exposed these people to potential harm, do not have a responsibility towards them.

 

And obviously that means that your Government, and now you as Prime Minister, also have a moral, ethical, social and above all human responsibility to do something about it.

 

The question I have for you is: will you?

 

Will you take action to remove LGBTI refugees and people seeking asylum from Manus Island, where they were placed by the Australian Government and where they are still subject to criminalisation?

 

Prime Minister, you are a Member of Parliament representing one of the ‘gayest’ electorates in Australia, with literally thousands, if not tens of thousands, of LGBTI people living in the seat of Wentworth.

 

You claim to support the equality of LGBTI people, both legally and socially. Earlier this year, you even became the first sitting Prime Minister to attend Australia’s largest ‘Pride’ event, the Sydney Gay & Lesbian Mardi Gras Parade.

 

That night, you joined in celebrating the hard-fought and hard-won freedom, and increasing equality[vii] and acceptance, of Australia’s LGBTI community, surrounded by tens of thousands of lesbian, gay, bisexual, transgender and intersex people, as well as their families and friends.

 

That very same night, and for hundreds of nights beforehand and every night since, just 3,500km to the North, a much smaller number of gay, bisexual and same-sex attracted refugees had far less reason to celebrate: certainly not freedom, and instead of equality and acceptance, a fear of prosecution and persecution by a Government that considers them criminals.

 

And the only difference between these two groups – between the ‘loud and proud’ crowd on Oxford St, and the isolated and vulnerable individuals on Manus – is where they were born.

 

The actions of successive Australian Governments have put the latter group where they are, directly in harm’s way. As the Prime Minister since September 2015, and leader of the current Liberal-National Government, you now keep them there.

 

You might have celebrated ‘pride’ with Australia’s LGBTI community almost 8 months ago, but contributing to the detention, processing and resettlement of LGBTI refugees in countries that criminalise them is nothing to be proud of.

 

And I think, deep down, you understand that. In which case, it is up to you to do something that you, your Government and the country you lead can be proud of:

 

Bring. Them. Here.

 

Your predecessors negotiated with the PNG Government for Manus Island to become the site of the ‘Regional Processing Centre’. You have the power to negotiate with the PNG Government to close that same centre and bring the refugees and people seeking asylum there back to Australia.

 

In fact, after the PNG Supreme Court earlier this year ruled that the detention of refugees and people seeking asylum on Manus Island was illegal, and in breach of the PNG Constitution’s right to personal liberty[viii], I suspect their Government would welcome such a move.

 

Bring them here and end the frankly horrific situation whereby LGBTI people who have fled persecution in other parts of the world, including those fleeing persecution on the grounds of sexual orientation, gender identity or intersex status, have been deliberately left in a place where they are subject to criminal laws on the basis of those same attributes.

 

Successive Australian Governments put them there. You, as Prime Minister, and leader of the current Government, can get them out. Do something that makes us all proud. Please, Prime Minister Turnbull, bring them here.

 

Sincerely,

Alastair Lawrie

 

malcolm-turnbull-mardi-gras

Prime Minister Malcolm Turnbull, celebrating ‘pride’ at the 2016 Sydney Gay & Lesbian Mardi Gras Parade. Not pictured: The gay, bisexual and same-sex attracted refugees and people seeking asylum detained on Manus Island, PNG.

 

**********

 

Attachment A

Senate Estimates Monday 17 October 2016

Legal and Constitutional Affairs Committee Hearing re Department of Immigration and Border Protection

Senator PRATT: I would like to know how many men on Manus have been given positive refugee status determinations on the basis of their sexuality.

Mr Pezzullo: Their claim of persecution relates to sexuality?

Senator PRATT: That is right.

Mr Pezzullo: I will ask Ms Noble or other officers to join me, but I am not sure that we would immediately have that data to hand, because we do not do the refugee status determination. Unless Ms Moy can answer the question directly, we will take it on notice.

Senator PRATT: You would agree that some would have had to have been found as refugees, basically?

Mr Pezzullo: Possibly. I do not know.

Ms Moy: The RSD process in Papua New Guinea is run by ICSA. We are not privy to the information of each claim. We would need to go to Papua New Guinea and ask them that question. So we would need to take it on notice.

Senator PRATT: But that is a difficult thing, given that homosexuality is actually illegal in PNG. They are having to make these disclosures to the PNG government, in which case they may even have a well-founded fear of persecution from within PNG. Is that not correct?

Mr Pezzullo: We will have to take on notice how the PNG authorities have dealt with the assessment of claims pursuant to both their international legal obligations and the operation of their domestic law.

Senator PRATT: Well, homosexuality is a criminal offence there. It is illegal.

Mr Pezzullo: I understand the point you are making. What I am saying is that how the PNG authorities have assessed those claims is a matter that would not be readily known to Ms Moy and myself.

Senator PRATT: What is the government’s advice to those men who are currently on Manus who are refugees because they are gay and who are about to be resettled in PNG?

Mr Pezzullo: Which government’s advice? The advice of the Australian government?

Senator PRATT: Yes.

CHAIR: Well, that is not a question for you, Mr Pezzullo. You are not here to give advice to people in detention in another country.

Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 21⁄2 years; the Australian government acquitted its nonrefoulement obligations over 21⁄2 years ago, at a minimum—

Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer. Australia, through two agreements, two heads of agreement—one initiated under the Gillard government and one under the Rudd government and then consolidated under subsequent governments—entered into agreements to transfer persons who arrived here by illegal maritime means into the jurisdictions of either Nauru or PNG, two separate transfers. At that point our nonrefoulement obligations had to be addressed and acquitted, and they were. There is no ongoing—

Senator PRATT: In what manner were issues of sexuality addressed within that agreement? Or were they not?

Mr Pezzullo: You cannot refoule persons back to the country of origin where they have raised claims of persecution. There were no claims of persecution against the states or the regimes of Nauru and PNG.

Senator PRATT: I understand that that is about returning people to their country of origin. But in effect we have taken them to a country where they could be subject to exactly the same form of persecution, where they are supposed to be having their claim for asylum processed.

Mr Pezzullo: Well, you speculate that. When you say we have ‘taken them to a country’—we cannot simply drop people off. We entered into intergovernmental agreements, to transfer persons from the Australian migration jurisdiction to other migration jurisdictions. At that point, the last of which occurred 21⁄2 years ago, because there have been no transfers since, all of Australia’s obligations in that regard were discharged.

Senator PRATT: In other words, the Australian government has no responsibility to those gay men who are currently detained on Manus in terms of whether their human rights in relation to their sexuality will be upheld in PNG or not.

Mr Pezzullo: I understand the question you are asking. You say that the Australian government has no responsibility in that circumstance, but the Australian government—a number of governments, actually, that straddle several parliamentary terms—discharged all of its legal undertakings at the time of the transfer, yes.

Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.

Senator PRATT: But we have a contract with the PNG government that—

Mr Pezzullo: We have an agreement, yes.

Senator PRATT: We have an agreement for which the PNG government is paid, and within that agreement there are men whose original claim for protection was based on their homosexual identity. Their claims are being processed in a country in which homosexuality is illegal.

Mr Pezzullo: Senator, you state, as an assertion—in what I think is a question—that their original claims were founded on sexuality.

Senator PRATT: They may or may not have been.

Mr Pezzullo: Thank you.

Senator PRATT: The question is that people who are homosexual and who are currently detained or being processed on Manus—their homosexuality may or may not have been part of their original claim—are being processed in a country in which homosexuality is illegal and they are being forced to be there.

Mr Pezzullo: Which might mean, in the circumstances that you describe—and this is a matter for the government of Papua New Guinea—that the government of Papua New Guinea is not able to resettle those gentlemen within their domestic jurisdiction. In that case, the government of PNG will need to enter into arrangements with so-called third country resettlement options where that clash with domestic law—or that contradiction with domestic law, if I can characterise it in those terms—is not applicable.

Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not.
Senator

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG. I understand the point of the question you are asking. What I am saying is: those persons—the single adult men who are on Manus—are in the legal jurisdiction of the government of Papua New Guinea. They have both international obligations that pertain to the 1951 Refugee Convention, which include non-refoulement, and other complementary protections that attach to various other covenants that that government has entered into. Then they have domestic laws which, as I understand from reporting, can be characterised in the way that you have described. It is now a matter for the government of Papua New Guinea to resolve: how do you settle a person who you know to have a well-founded fear of persecution—across a range of matters, one of which might be related to sexuality—within your domestic jurisdiction? I do not know—Ms Moy might be able to assist me—if we have been asked for technical assistance in terms of how to perhaps assist with the country options. I just do not know.

Ms Moy: Not at this stage.

Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.

Senator PRATT: I think I have exhausted that. Clearly the government has no further responsibility.

**********

Footnotes:

[i] At the time the Australian Government continued to advocate the transfer of refugees and people seeking asylum to Malaysia, in addition to Nauru and PNG.

[ii] From the response: “Pre-Transfer Assessment is undertaken prior to a person’s transfer to a [Regional Processing Country] to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

Where a person raises concerns against a designated RPC, the Departmental officer refers to relevant country information, as well as assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of is power under section 198AE of the Migration Act 1958 to exempt that person rom transfer.”

[iii] The response is included with the original letter, here.

[iv] Since the time of my submission to that inquiry, and in very welcome news, Nauru has finally decriminalised male homosexuality.

[v] The original transcript for this hearing can be found on pages 132-134 here.

[vi] I note that only ‘male’ refugees have been transferred to Manus Island, in which case the majority of people affected by these laws will be gay, bisexual and same-sex attracted ‘men’. However, for consistency with previous letters (to Ministers Bowen and Morrison) that also dealt with Nauru (to which women and children have been sent) the term LGBTI will continue to be used throughout this post.

[vii] Although obviously still not full equality, not just on the issue of marriage, but also in relation to trans birth certificates, non-consensual surgeries on intersex infants and extensive religious exceptions to anti-discrimination laws, among other issues.

[viii] ABC News, PNG’s Supreme Court rules detention of asylum seekers on Manus Island is illegal, 27 April 2016.

Submission to Senate Inquiry into Treatment of Asylum Seekers on Nauru & Manus Island

UPDATE: 5 June 2016

 

The Senate Legal and Constitutional Affairs References Committee, chaired by Senator Glenn Lazarus, was unable to complete its inquiry into the treatment of people seeking asylum on Nauru and Manus Island before Malcolm Turnbull announced the election on 8 May.

 

However, they did release an Interim Report based on the submissions it had already received, which can be found here.

 

A range of disturbing matters are raised in this Report, including submissions to the effect that, in just a 13-month period (June 2014 to July 2015), the Department of Immigration and Border Protection recorded:

 

  • “134 incidents of actual self-harm, many amounting to attempted suicide and including some by children
  • 75 instances of the use of force against asylum seekers, by other asylum seekers and by [Regional Processing Centre] staff
  • 26 ‘major disturbances’ of various kinds, all serious in nature and posing risks to the safety of asylum seekers and staff
  • 34 instances of serious assault requiring medical treatment [and]
  • 16 serious accidents of injuries and 23 public health risks.”

 

I encourage you to read the short report to see at least a little of what is being done by our Government to people who deserve its protection, not abuse.

 

The Committee also recognised the particular issues confronting LGBTI people seeking asylum being detained, processed and resettled in Nauru and Papua New Guinea, including the following extended section on pages 12 and 13:

 

LGBTI asylum seekers

 

1.57 The committee received some evidence focused on the situation of lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the [Regional Processing Centres]. Mr Alastair Lawrie noted that male homosexual conduct remained a criminal offence in both Nauru and PNG, and expressed the view that ‘the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.’ Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual asylum seekers in the [Regional Processing Centres], and the lack of appropriate health and community services in the two countries. [Australian Lawyers for Human Rights] shared these concerns, citing Amnesty International’s reporting about gay refugees and resettlement in PNG.

 

1.58 The NSW Gay & Lesbian Rights Lobby highlighted that ‘LGBTI refugees are some of the most vulnerable individuals held in detention around the world’, and submitted that they were subject to ‘severe discrimination’ in the [Regional Processing Centres] and their host countries, as well as in refugee status determination processes.

 

1.59 Mr Lawrie argued that LGBTI asylum seekers (whether or not their claims for refugee status were based on their sexuality) should be housed and processed in Australia. The NSW Gay & Lesbian Rights Lobby agreed, and also offered a number of recommendations for specific training and education of relevant officials and service providers, as well as improved services, to better address the specific needs and vulnerabilities of LGBTI asylum-seekers.”

 

Given their inability to complete the inquiry, the Committee made only one recommendation: “The committee recommends that, should it be unable to complete its inquiry prior to the 2016 national election, the Senate should refer this matter for committee consideration, in similar terms as appropriate, in the 45th Parliament.”

 

However, even that recommendation, to essentially resume the Inquiry after the July 2 poll, was a bridge too far for Liberal and National Party Senators on the Committee who, disappointingly, “instead recommended[ed] that examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

 

As a result, it is unclear whether this issue will receive sufficient parliamentary scrutiny in the next term.

 

There is, nevertheless, one positive development that has occurred since the Committee handed down its Interim Report – on 27 May the Government of Nauru announced that it had decriminalised homosexuality.

 

In its media release “Nauru Government updates Criminal Code”, they announced passage of “the Crimes Act 2016 [which] replaces the hundred year old Nauruan Criminal Code 1899 which was drawn from the Queensland Criminal Code.”

 

In doing so, they confirmed the influence of international human rights advocacy:

 

“The Government of Nauru continues to show progressive leadership and in keeping with its legislative agenda, has passed a new number of laws including the decriminalising of homosexuality and suicide.

 

“In complying with its international obligations under various international treaties, The Nauru Parliament has had laws drafted to be consistent with appropriate international standards.”

 

Of course, the passage of this law, while welcome, will not necessarily do much to prevent ongoing reports of abuse as highlighted in the Committee’s Interim Report, but it is at least a small step forward, not just for LGBTI people seeking asylum being detained on Nauru, but for the LGBTI people of Nauru too.

 

ORIGINAL POST:

 

The Senate Legal and Constitutional Affairs Committee is currently conducting an Inquiry into the Conditions and Treatment of Asylum Seekers and Refugees at the Regional Processing Centres in the Republic of Nauru and Papua New Guinea. My submission to this inquiry has now been published by the Committee and is reproduced below.

More details about the Inquiry, and other submissions, can be found here.

 

Committee Secretary

Senate Legal and Constitutional Affairs Committee

PO Box 6100

Parliament House

Canberra ACT 2600

legcon.sen@aph.gov.au

Thursday 31 March 2016

 

To whom it may concern

 

Submission to Senate Inquiry into Conditions and Treatment of Asylum Seekers and Refugees in Nauru and PNG

 

Thank you for the opportunity to provide a submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Conditions and Treatment of Asylum Seekers and Refugees at the Regional Processing Centres in the Republic of Nauru and Papua New Guinea (‘the Inquiry’).

 

From the outset, I wish to express my opposition to the policies adopted by both the current Liberal-National Government, and the previous Labor Government, which detain (sometimes indefinitely), process and in some cases resettle people seeking asylum in Nauru and Papua New Guinea (PNG).

 

I believe that the actions of successive Australian Governments are in breach not just of international human rights law, but also fall far short of basic standards of human decency, denying the opportunity of a better life to people fleeing persecution in other countries.

 

However, while I oppose the overall detention, processing and resettlement of all people seeking asylum in Nauru and PNG, in this submission I will focus on one group of people for whom these policies cause particular problems: lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

 

It is my view that the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.

 

Before I address this issue in more detail, I would like to clarify that here I am not simply referring to people who claim asylum based on persecution because of their sexual orientation, gender identity or intersex status in other countries, but also include people who seek asylum on the basis of persecution of another attribute (such as race, religion or political views) and who are LGBTI. Both groups are negatively affected by the Australian Government’s current approach.

 

In this submission, examining the treatment of LGBTI people seeking asylum, I will primarily focus on two of the Inquiry’s six criteria:

a) conditions and treatment of asylum seekers and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea;

d) the extent to which the Australian-funded regional processing centres in the Republic of Nauru and Papua New Guinea are operating in compliance with Australian and international legal obligations.

 

**********

 

Sending LGBTI people seeking asylum to countries that criminalise homosexuality is itself a human rights abuse, and one that exposes those people to other forms of abuse and mistreatment

 

The Australian Government currently detains people seeking asylum in two countries outside of Australia: Nauru and PNG.

 

In both countries, male homosexuality remains criminalised. In both places, the maximum penalty is set at 14 years imprisonment. And in both, the origins of their current laws can be traced back to British, and subsequently Australian, imperial rule.

 

Nauru has two main criminal offences under its Criminal Code (which, I understand, are based on Queensland’s 1899 Criminal Code) that are relevant to this discussion:

 

“Section 208 Unnatural Offences

Any person who:

(1) Has carnal knowledge of any person against the order of nature; or

(2) Has carnal knowledge of an animal; or

(3) Permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a crime, and is liable to imprisonment with hard labour for fourteen years[i]” and

 

“Section 211 Indecent Practices between Males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.”

 

Despite comments in recent years by the Government of Nauru that suggested homosexuality could be decriminalise there, these offences remain in place today.

 

Papua New Guinea also has two main offences under its Criminal Code that are relevant (and the offences, and even the language used, again appear to be based on Queensland’s since repealed criminal provisions):

 

“Section 210. Unnatural Offences.

(1) A person who-

(a) sexually penetrates any person against the order of nature; or

(b) sexually penetrates an animal; or

(c) permits a male person to sexually penetrate him or her against the order of nature,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A person who attempts to commit and offences against Subsection (1) is guilty of a crime.

Penalty: imprisonment for a term not exceeding seven years” and

 

“Section 212. Indecent Practices Between Males.

(1) A male person who, whether in public or private-

(a) commits an act of gross indecency with another male person; or

(b) procures another male person to commit an act of gross indecency with him; or

(c) attempts to procure the commission of any such act by a male person with himself or with another male person,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

 

Unlike Nauru, there does not even appear to be any prospect of the PNG offences being repealed in the short or medium-term future.

 

Thus, prime facie, it appears that any members of the LGBTI community who engage in what could be described as male-male sexual activity – which would include gay men, bisexual men, some trans people (including because of mis-gendering by authorities) and some intersex people – would be committing criminal offences if they are sent to Nauru or PNG.

 

The criminalisation of male homosexuality in both PNG and Nauru stands in stark contrast with the situation in Australia, where all states and territories have decriminalised sexual activity between men (with Tasmania the last state to do so, in 1997).

 

If LGBTI people seeking asylum were instead allowed to have their claims processed on Australian soil, they would not need to fear being prosecuted simply because of who they are.

 

The legal situation in Australia is also relevant in establishing that the criminalisation of homosexual sexual activity in both Nauru and PNG is a contravention of international human rights law. It does so in two ways:

 

(i) The first United Nations Human Rights Committee (UNHRC) decision to find that laws criminalising male homosexuality were a violation of the ‘right to privacy’ in article 17 of the International Covenant on Civil and Political Rights (ICCPR)[ii] involved an Australian complainant. The case of Toonen v Australia[iii] – which considered a complaint against the ‘sodomy’ laws of Tasmania – was ground-breaking when it was handed down in early 1994, and remains relevant around the world today[iv] (as we shall see below).

 

(ii) The Australian Government, and Parliament, then confirmed that the international human right to privacy included consensual sexual activity between adults through the passage of the Human Rights (Sexual Conduct) Act 1994. Specifically, subsection 4(1) provided that: “[s]exual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.”

 

And yet, despite a 1994 decision of the UNHRC finding that the international human right to privacy should include the right to consensual sexual activity between adults, and despite this being confirmed as a right by the Australian Parliament more than 20 years ago, successive Australian Governments have effectively determined that this right should not apply to LGBTI people seeking asylum who seek protection from Australia.

 

Instead, successive Australian Governments have detained, processed and, in some case, resettled LGBTI people seeking asylum in countries that continue to criminalise male homosexual activity, exposing them to what I would argue are human rights violations under both Australian and international law.

 

There has previously been a suggestion that the criminal laws of Nauru and PNG, and especially those laws that prohibit homosexual sexual activity, might not apply to people seeking asylum who are being detained in either or both of those places.

 

However, I have raised this issue directly with respective Immigration Ministers under both the previous Labor and current Liberal-National Governments, and neither has explicitly ruled out the application of these criminal laws.

 

In September 2012, I asked then Immigration Minister the Hon Chris Bowen MP:

 

“Are you aware that homosexuality is currently illegal in all three countries [at the time, they also sought to send people seeking asylum to Malaysia] to which the Australian Government currently intends to send asylum seekers?” and

“Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian Government?”[v]

 

The response from the Department of Immigration and Citizenship, received in June 2013 (see Appendix A), refused to answer these questions – and therefore refused the opportunity to deny that the offences would indeed apply.

 

I wrote to the new Minister for Immigration the Hon Scott Morrison MP in February 2014, raising the same issues, this time specifically in relation to Manus Island, following the release of the Amnesty International Report This is Breaking People.[vi] In this letter, I included the following statement, something that I continue to firmly believe today:

 

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

 

The response to that letter, again from the Department rather than the Minister, and received in February 2014 (see Appendix B), did nothing to allay concerns that the criminal laws applied to LGBTI people seeking asylum held on Manus Island:

 

“The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecutions under those laws.

 

“If homosexual activity should occur in the OPC [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.”

 

There is a lot to absorb from those short paragraphs and indeed from the letter as a whole (and I will attempt to address these issues in turn).

 

However, one thing that does not appear anywhere in this correspondence is a denial that the criminal laws of PNG apply to LGBTI people seeking asylum and refugees on Manus Island, irrespective of whether they are awaiting assessment or have had their applications approved and are living in the community.

 

Thus, on the basis of both letters, it can safely be asserted that the laws that criminalise homosexuality in PNG, and Nauru, apply to LGBTI people seeking asylum detained in both places by the Australian Government.

 

Looking at the specific claims in the February 2014 letter in more detail, we must remember that it does not actually matter whether the criminal laws of either PNG or Nauru have been the subject of prosecution in recent years. As the United Nations Human Rights Committee decided in the 1994 Toonen case:

 

“The Committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code “interfere” with the author’s privacy, even if those provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future… The continued existence of the challenged provisions therefore continuously and directly “interferes” with the author’s privacy.”

 

In this light, the continued existence of the laws of Nauru and PNG criminalising male homosexuality is sufficient to constitute a human rights abuse of any person who is included by their scope, irrespective of whether the laws are actively being enforced or not.

 

The February 2014 letter actually highlights this potential abuse, even as it attempts to reject a claim made in the This is Breaking People report, namely that staff on Manus Island had a legal requirement to report homosexual activity to PNG police.

 

The letter itself only states that “there is no mandatory obligation under PNG domestic law”, not that such behaviour could not and would not ever be reported to the PNG Government or police – thus reinforcing the potential threat to LGBTI people seeking asylum.

 

The threat of criminal prosecution under PNG law has even been directly brought to the attention of people seeking asylum being detained on Manus Island. From The Guardian in September 2014[viii]:

 

Guardian Australia has obtained a copy of an orientation presentation shown to asylum seekers on Manus after they arrived on the island. It was prepared by the Salvation Army and shows a picture of two men kissing with a large red cross through it.

 

“The delivery notes attached to the presentation warn; “Homosexuality is illegal in Papua New Guinea. People have been imprisoned or killed for performing homosexual acts.”

 

A spokesman for the Salvation Army confirmed the slides were used in the presentation to asylum seekers and said they formed part of a “broader education program about life in PNG.””

 

160427 Refugee Submission No Kissing

The slide from the Salvation Army presentation that was shown to people seeking asylum after their arrival on Manus Island (source: Guardian Australia).

 

Given this context, and applying the precedent of Toonen decision above, it is undeniable that the treatment of LGBTI people seeking asylum by the Australian Government is in clear breach of international human rights law.

 

This breach also directly causes other serious harms to these people seeking asylum. This includes increased discrimination against, and ostracising of, LGBTI people by other people seeking asylum in these detention centres.

 

As has been highlighted by multiple reports, including Amnesty International’s This is Breaking People, work by Human Rights Watch[ix], and the previously quoted article in The Guardian, the threat of criminalisation means LGBTI people who have been the victim of mistreatment in the detention centres – whether by other people seeking asylum or even detention centre employees – are far less likely to bring such mistreatment to the attention of relevant authorities.

 

Distressingly, these reports include multiple allegations that gay and bisexual men seeking asylum have been subject to sexual assaults inside detention centres but, due to the threat of the criminal laws being imposed on them for their homosexuality, have chosen not to make official complaints about these assaults.

 

That seems like an inevitable outcome of the offshore detention centre system created by successive Australian Governments, and yet it is no less abhorrent for this inevitability.

 

This abhorrent situation is reflected in the quotes of gay asylum seekers in both The Guardian article and Human Rights Watch report. From Human Rights Watch:

 

“A gay asylum seeker said, “I have not come to stay in Manus, a country where it’s possible [for a gay man] to be jailed for 14 years. If I wanted to live like this I would have stayed in Iran and gone to prison, been released, and then sent to prison again.”

 

“Another said, “Everyone leaves me. No one considers me a friend. Those few men who do are only with me because they want to take advantage of me sexually. They become my friends and after they use me they leave. And make fun of me. It’s very hard here.””[x]

 

And from The Guardian article[xi]:

 

“Author Karim writes:

 

“In this camp I suffer a lot. For example about four month ago I had to protect myself from a vicious man who tried to rape me, I lodged a complaint against the man, but I’ve got no reply yet.

 

“Life in the camp became harder because after that incident everyone stopped talking to me, I am completely alone, they are bullying and humiliating me at all time.

 

“I asked the psychologists to help me, but I’ve been ignored.”

 

“[Another author] Ahmed continues:

 

“I have to hide my sexuality because in this country, like Iran, there are a lot of people – fanatics – whom if they find out anyone is gay they would harass them and maybe even try to kill them.

 

“I have to hide my personality once again. I have to lie as someone else.

 

“It feels like this is a disease that is consuming me for all these years and society will never leave me alone. It feels like the universe doesn’t want you to live in the serenity of one moment, I don’t know what I have done to the universe, or what it has against me.

 

“I can’t live one moment without anxiety stress and sadness, it doesn’t let me live happily with anyone who I love or feel love, I don’t know what is my crime that I have to be punished so harshly.”

 

And from Omid (also in The Guardian article):

 

“I couldn’t return to Iran and be executed by the Iranian government. Hence living in PNG was not any better, because being gay is considered a crime in PNG as well, and the punishment for such crime is 14 years imprisonment.

 

“I am so sorry that I was born gay. I never meant to hurt you, mum.

 

“I wish our boat had sunk in the ocean and stopped me living the most painful year of my life.

 

“I thought Australia and its people would be my protector, but they taught me otherwise.”

 

These are the tragic lessons that we, as a country, are teaching LGBTI people seeking asylum by detaining, processing and resettling them in countries that criminalise homosexuality.

 

Another direct and very real consequence of the threat of criminalisation is the associated failure to provide proper sexual health education and services to LGBTI people seeking asylum.

 

Leaving aside the claims that people seeking asylum on Manus Island have been denied access to condoms (which the February 2014 letter rejected, but which is difficult to verify in the absence of independent monitoring), it is highly questionable whether appropriate and inclusive sexual health education is provided to all people seeking asylum who are held, including lesbian, gay, bisexual, transgender and intersex people.

 

But it is beyond doubt that LGBTI people seeking asylum are forced to exercise extreme caution when attempting to access sexual health services given doing so may expose them to criminal sanction. Criminalisation in this context, as in many other areas, directly jeopardises public health outcomes, and specifically increases the risks of HIV transmission.

 

Indeed, as the United Nations Human Rights Committee wrote more than two decades ago in relation to Toonen:

 

“The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalisation of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Second, the Committee notes that no link has been shown between the continued criminalisation of homosexual activity and the effective control of the spread of the HIV/AIDS virus.”

 

Thus, in addition to breaching the human rights of LGBTI people seeking asylum under international and Australian law by detaining them in countries that criminalise homosexuality, the Australian Government is also increasing the risks of those same people seeking asylum contracting a virus that, while manageable with access to appropriate care and treatment, nevertheless still killed 1.5 million people worldwide in 2013 alone[xii].

 

Before concluding this submission, I would like to make two final observations.

 

First, the Committee will note that throughout I have referred to lesbian, gay, bisexual, transgender and intersex people seeking asylum. I have done so even while I acknowledge that for some members of this community – including lesbians, bisexual women and some transgender and some intersex people – the criminal laws against male homosexual activity in both Nauru and PNG will not technically apply.

 

Nevertheless, I believe that the unsafe situation created by these laws does apply to all LGBTI people seeking asylum who are detained there. By retaining laws against male homosexuality, both Governments effectively encourage discrimination across all of these population groups.

 

The consequence of this is that even for lesbians, bisexual women and those transgender and intersex people, they remain at increased risk of harassment and abuse (by both other people seeking asylum and detention centre employees), and sexual assault, as well as being denied access to appropriate and inclusive sexual health education and related services.

 

Second, I note that in both the June 2013 and February 2014 letters the Labor and Liberal-National Governments indicated that, were an LGBTI person seeking asylum to lodge an objection to being detained on either Nauru or PNG because of their laws against homosexuality, there is some possibility that they may not be sent to either place.

 

From the June 2013 letter:

 

“Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC [Regional Processing Centre] to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

 

“Where a person raises concerns against a designated RPC, the Departmental officer refers to relevant country information, as well as the assurances received by Australia from the RPC governments[xiii], to assess if those charges are credible. If the person makes credible claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.”

 

From the February 2014 letter:

 

“Any claims made against Nauru and PNG by an IMA [Illegal Maritime Arrival][xiv], including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.”

 

While this process may appear to offer a small glimmer of hope to an even smaller number of LGBTI people seeking asylum, there are significant problems with any process that requires people to raise these concerns before being sent to either Nauru or Manus Island.

 

Imposing this requirement presupposes that the LGBTI person seeking asylum involved is aware that they are likely to be sent to one of these two countries, and that they also have knowledge of the criminal laws in both potentially applying to them.

 

It also requires them to be aware of the process involved in making such a claim (which is highly unlikely, especially in the absence of legal representation), and that they have the ability to raise it, with an appropriate Government representative, in the increasingly short period of time between detention by the Australian Government and transfer.

 

And it forces an LGBTI person seeking asylum to make this claim in an environment where they may be travelling with family members and friends (to whom they may not be ‘out’), or other members of their community that may not be accepting of different sexual orientations, gender identities or intersex people.

 

Finally, the June 2013 letter itself acknowledges that there may be some delay between a person seeking asylum protection from the Australian Government, and them making a claim on the basis of their LGBTI status. From that letter:

 

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applicants may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision-makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

 

Given this, it makes absolutely no sense to limit the ability of LGBTI people seeking asylum to make claims for protection against their detention on either Nauru or Manus Island, PNG to prior to their detention there – they should be able to make such a claim, and request transfer from these facilities (preferably to be processed in Australia), at any point.

 

**********

 

Overall, I believe that the actions of successive Australian Governments, in sending lesbian, gay, bisexual, transgender and intersex (LGBTI) people seeking asylum to Nauru and PNG, both countries that criminalise male homosexuality, is a fundamental breach of international human rights law.

 

This breach has flow-on consequences, by leading to increased harassment and abuse of LGBTI people seeking asylum, including by other people seeking asylum and by detention centre employees, and exposing them to sexual assault, as well as denying them access to appropriate and inclusive sexual health education and related services, increasing their risk of contracting HIV.

 

I submit that, instead of detaining, processing and resettling LGBTI people seeking asylum on Nauru and Manus Island, PNG, the Australian Government must instead ensure that the claims of these people are processed in Australia, where they are not criminalised and where they can be provided with access to appropriate support services.

 

Thank you for taking this submission into account as part of this Inquiry. If the Committee would like additional information about any of the above, or to clarify any part of this submission, please do not hesitate to contact me at the details provided.

 

Sincerely,

Alastair Lawrie

 

 

**********

 

Appendix A

Dear Mr Lawrie,

Thank you for your email of 7 September 2012 to the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, concerning the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers. Your letter has been referred to me for a reply. I apologise for the delay in responding.

The Australian Government’s commitment to removing discrimination was demonstrated by its reforms to remove discrimination from 85 Commonwealth laws. These reforms, which passed in 2009, removed discrimination and equalised treatment for same-sex couples in areas of taxation, social security, health, aged care, superannuation, immigration, child support and family law.

The Government is also proceeding with introducing long overdue protections against discrimination on the basis of sexual orientation, gender identity and intersex status. On 21 March 2013, the Attorney-General introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. This Bill will ensure that protections from discrimination for people who are gay, lesbian, bisexual, transgender and intersex are put in place as soon as practicable.

Concerning the transfer of post-13 August 2012 irregular maritime arrivals (IMAs) to Regional Processing Countries (RPC) and the treatment of LGBTI asylum seekers, as a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention), Australia takes its international obligations seriously and is committed to providing protection to refugees consistent with the obligations set out in the Refugees Convention and other human rights treaties to which Australia is a party. Any person has the right to seek protection in Australia from persecution in their home country.

The Government has signed Memoranda of Understanding (MoU) with the Governments of Nauru and Papua New Guinea which permit people who arrived irregularly by boat on or after 13 August 2012 to be taken to Nauru or Papua New Guinea (Manus Island) for assessment of their claims against the Refugee Convention. Changes to the Migration Act 1958 (the Act) which give effect to regional processing arrangements were passed by the Australian Parliament and became law on 18 August 2012.

The MoU signed with Nauru and Papua new Guinea reaffirms the commitment of both countries to the Refugee Convention, with people transferred to the Regional Processing Country (RPC) to be treated with dignity and respect in line with human rights standards.

The Department of Immigration and Citizenship recognises that human rights abuses and gender-related persecution can also be experienced by people on the basis of their sexual orientation and/or gender identity. As such, an applicant’s gender-related claims may include claims relating to their
sexual orientation and/or gender identity.

In the guidelines set out in the Departmental Procedures Advice Manual 3 (PAM3), for the guidance of interviewing officers, they are advised that

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applications may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

Where a person raises concerns against a designated RC, the Departmental officer refers to relevant country information, as well as the assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.

A copy of the Minister’s s198AE guidelines and the Pre-Transfer Assessment form and guidelines can be found at the Department’s website at: www.immi.gov.au/visas/humanitarian/whatsnew.htm

Also for your information, I attach a copy of the relevant sections of PAM3 regarding gender and sexual orientation. For a full interactive copy of that document you may need to contact your nearest public library which should be able to provide free access.

Thank you for writing about this matter and I apologise again for the delay in respond.

Yours sincerely

[Name withheld]

Director

Protection Policy Section

6 June 2013

 

**********

 

Appendix B

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

Thank you for your letter of 2 February 2014 to the Hon Scott Morrison MP, Minister for Immigration and Border Protection, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I regret the delay in responding.

As a party to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), Australia takes its international obligations seriously. Australia is committed to treating asylum seekers fairly and humanely, and providing protection to refugees consistent with the obligations set out in the Refugees Convention, and other relevant international treaties to which Australia is a party.

The Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to Nauru and Papua New Guinea (PNG) where any asylum claims they may have will be assessed, and if found to be a refugee, they will be resettled in Nauru and PNG or in another country.

Any claims made against Nauru and PNG by an IMA, including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration or exemption from transfer.

Nauru and PNG are also both parties to the Refugee Convention. The Memoranda of Understanding (MOU) they have signed with Australia on the offshore processing arrangements reaffirm their commitment to the Refugees Convention and to treating people transferred with dignity and respect in accordance with human rights standards.

The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

If homosexual activity should occur in the OPC, there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.

The department notes the release of the reports by both the United Nations High Commissioner for Refugees (UNHCR) and Amnesty International on the Manus OPC. Any reports received by the department will be reviewed, and observations or comments verified. Where reports make practical observations that can be implemented and would improve the operations of the centres, the government will address these in partnership with Nauru and PNG to address any deficiencies in good faith.

Any claims of mistreatment at the Manus OPC would be primarily a matter for the Administrator of the OPC. The Manus OPC is administered by PNG under PNG law, with support from Australia. The PNG Minister for Foreign Affairs and Immigration appoints the Administrator of the Centre (a PNG national) under section 15D of the Papua New Guinea Migration Act 1978 (the Act). The Administrator, who, under the Act has control and management of the Centre (currently the Chief Migration Officer, Head of the PNG Immigration and Citizenship Service Authority) has an Operations Manager at the OPC reporting to him, who has oversight of the day-to-day operations of the OPC.

To assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met, including through the provision of health and welfare services. Transferees can report any concerns to OPC staff.

Regarding the distribution of condoms, I can assure you that condoms are available at the Manus OPC, and the department’s contracted health service provider, International Health and Medical Service, conduct regular health information sessions on safe sex practices.

Thank you for bringing your concerns to the Minister’s attention.

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

 

**********

 

Footnotes

[i] Attempt to commit unnatural offences is also an offence under section 209, with a maximum penalty of 7 years imprisonment.

[ii] Article 17: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

[iii] Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

[iv] From an article in New Matilda, celebrating the 20th anniversary of the Toonen decision (20 Years Since Toonen Changed the World, 11 April 2014): “Perhaps most dramatic of all has been the impact of the Tasmanian UN decision around the world. The Tasmanian decision was the first time the UN had recognised the equal rights of LGBTI people. When the Indian High Court overruled that country’s anti-gay laws in 2009 it was on the basis of the Tasmanian decision. When the UN Secretary-General Ban Ki Moon successfully urged the President of Malawi to release men gaoled for being gay, he cited the Tasmanian decision.In 2011 the UN Human Rights Commissioner, Navi Pillay, described the Tasmanian decision as a “watershed with wide-ranging implications for the human rights of millions of people.”

[v] Letter to Chris Bowen on LGBTI Asylum Seekers

[vi] A copy of the This is Breaking People report can be found here.

[vii] Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees sent to Manus Island, PNG

[viii] Guardian Australia, ‘Gay asylum seekers on Manus island write of fear of persecution in PNG’, September 24 2014.

[ix] Human Rights Watch, ‘Australia/Papua New Guinea: The Pacific Non-Solution’, July 15 2015.

[x] Ibid.

[xi] Op cit, Guardian Australia, September 24 2014.

[xii] World Health Organisation Global Health Observatory data.

[xiii] Based on the principles of the Toonen UNHRC decision, these assurances are irrelevant – the continued existence of laws criminalising male homosexuality should be sufficient to prevent the transfer of LGBTI people seeking asylum to these countries.

[xiv] This is the term used in the letter, not one that I would personally use or approve.

2016-17 Pre-Budget Submission: Save $158.4 million – Scrap the Marriage Equality Plebiscite

 

The Commonwealth Government has called for submissions[i] to assist it in developing the 2016-17 Budget, which, barring an early election, is due to be handed down on Tuesday 10 May.

This process is another opportunity to highlight to Prime Minister Malcolm Turnbull, Treasurer Scott Morrison and the Liberal-National Government generally just how ridiculous it is that they are proposing to waste (at least) $158.4 million on something that can be passed by the Parliament, in the usual way, for no cost.

Submissions are due by Friday 5 February 2016, with full details here. This is my submission:

 

Budget Policy Division

Department of the Treasury

Langton Crescent

PARKES ACT 2600

prebudgetsubs@treasury.gov.au

 

Tuesday 2 February 2016

 

To whom it may concern

2016-17 Pre-Budget Submission

Thank you for the opportunity to make a submission regarding what I believe should be the priorities for the 2016-17 Budget.

In this short submission I would like to focus on just one issue that, as well as being the right policy approach, would also have significant Budget benefits, and that is to call on the Turnbull Government to scrap the proposed marriage equality plebiscite.

There are a variety of policy justifications for not proceeding with a plebiscite on this issue, including that holding a public vote is unnecessary because the High Court has already found that Commonwealth Parliament has the constitutional power to pass marriage equality, and that subjecting the human rights of a minority group to such a process is inappropriate.

I, and many other members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, also have serious concerns that the campaign leading up to a marriage equality plebiscite will be divisive, and expose LGBTI Australians, and the children of LGBTI families, to increased levels of homophobia, biphobia, transphobia and intersexphobia.

However, there are also strong budgetary reasons why the marriage equality plebiscite should not go ahead.

The Australian Electoral Commission has estimated that the cost of holding a stand-alone plebiscite on marriage equality would be at least $158.4 million.[ii]

Such a significant expenditure of public monies must be considered wasteful when the alternative approach – to pass (or at least to hold a free vote on) marriage equality legislation in Parliament – does not carry any additional cost.

Holding a marriage equality plebiscite could even be considered duplication, given, in the event of a ‘yes’ vote, a Bill introducing marriage equality would still need to be passed.

The two media releases, issued by the Assistant Minister to the Treasurer, the Hon Alex Hawke MP, calling for Pre-Budget Submissions, both reiterated the “Government’s commitment to restrain expenditure responsibly”.[iii]

It is difficult to think of a more perfect way to ‘restrain expenditure responsibly’ than by avoiding spending $158.4 million on something which is entirely unnecessary in the first place.

Of course, scrapping the marriage equality plebiscite also fits in with the Government’s broader fiscal policy, as outlined in the Mid-year Economic and Fiscal Outlook (MYEFO), including the “Government’s commitment to returning the budget to a sustainable position and reducing debt over the medium term”[iv].

With an underlying cash deficit estimated at $33.7 billion (or 2% of GDP) in 2016-17 (when such a plebiscite may be held), and net debt now expected to peak at 18.5% of GDP in 2017-18, it is undeniably profligate to spend an extra $158.4 million on a public vote the outcome of which is not even binding on Government MPs. This money would instead be much better used to lower the cash deficit and therefore reduce net Government debt.

Other Budget Rules, contained in the MYEFO, are also relevant to the consideration of whether to allocate money in the 2016-17 Budget to holding a plebiscite on marriage equality.

For example, I note that the MYEFO states: “This strategy sets out that:

  • new spending measures will be more than offset by reductions in spending elsewhere within the budget.”[v]

Given the monies required to hold a marriage equality plebiscite have not been allocated in the Budget to date[vi], that means it would need to be included in the 2016-17 Budget as a ‘new spending measure’ and, according to the Government’s own rules, there must be at least an equivalent amount of reductions in spending elsewhere.

It seems absurd to me that the Government would need to cut $158.4 million in spending on justice, or health, or education, or any number of other areas, simply to hold a plebiscite on something that could be resolved by the Parliament in the ordinary course of business for no extra cost.

If the Government does decide to continue down this path, and makes such cuts in order to fund a marriage equality plebiscite, then in the interests of transparency I urge it to include the details of these cuts in the Budget, linking them to this ‘new spending measure’, thereby allowing Australians to make up their own minds whether these actions meet the stated ‘commitment to restrain expenditure responsibly’.

Of course, if the Government is interested in spending a similar amount of money on issues that affect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians, then I would suggest a variety of different ways in which it could do so that would bring much greater benefit, including:

  • Removing out-of-pocket medical costs for transgender people
  • Ending involuntary surgical procedures on and sterilisation of intersex children
  • Increasing refugee places for LGBTI people fleeing persecution in Syria, Iraq and other countries
  • Funding campaigns aimed at addressing homophobia, biphobia, transphobia and intersexphobia across society and
  • Expanding the ‘safe schools’ program to cover every school in the country.

Even if the Turnbull Government is not interested in funding these programs, it would nevertheless be preferable to use this $158.4 million to reduce overall Government deficit and debt, rather than to waste it on holding an unnecessary, inappropriate and divisive public vote.

Scrapping the marriage equality plebiscite, and holding a parliamentary vote instead, might be the easiest Budget saving any Government could ever hope to make.

Thank you for taking this submission into consideration.

 

Sincerely

Alastair Lawrie

 

160202 Scott Morrison

Treasurer Scott Morrison, tasked with ‘restrain[ing] expenditure responsibly’. Scrapping the marriage equality plebiscite would be a good place to start.

[i] Media Release “2016-17 Pre-Budget Submissions” 18 December 2015 and Media Release “Deadline for Lodging 2016-17 Pre-Budget Submissions”.

[ii] As quoted on page 22 of the Senate Committee Report: Matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia, 15 September 2015.

[iii] See links to media releases above.

[iv] Mid-Year Economic and Fiscal Outlook 2015-16 Part 3: Fiscal Strategy and Outlook.

[v] Ibid.

[vi] “Labor sees a plebiscite-sized hole in the Budget”, Huffington Post, 18 December 2015.

7 Better Ways to Spend $158.4 million

Despite the change of Prime Minister in September, from the homophobe Tony Abbott to the supposedly ‘gay-friendly’ incumbent Malcolm Turnbull, it appears we are stuck with the decidedly unfriendly option of holding a plebiscite to determine whether the relationships of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians should be treated equally under the law, or if they will continue to be treated as second class compared to the relationships of their cisgender heterosexual counterparts.

 

This blog has previously looked at the issue of a marriage equality plebiscite, with my submission to the recent Senate inquiry arguing that such a vote would be unnecessary, inappropriate, wasteful and divisive.

 

Just how wasteful a plebiscite would be became apparent during the course of that inquiry, with the Australian Electoral Commission estimating that the cost of holding a stand-alone vote to determine this issue would be at least $158.4 million.[i]

 

$158.4 million, to conduct what is essentially a glorified public opinion poll, which would not be binding on our elected officials, nor compelling them to implement the outcome in a timely manner (with the 1977 plebiscite, which selected ‘Advance Australia Fair’ as our new national anthem, not legislated until 1984).

 

$158.4 million, to determine what we already know – that the majority of Australians support the human rights of LGBTI Australians, and wish to see a Marriage Act that does not discriminate on the basis of sexual orientation, gender identity or intersex status.

 

$158.4 million, to do something that the 226 members of the Commonwealth Parliament could do for no extra cost, something that they are elected to do, and something that overturns what they have done before (with John Howard’s homophobic, biphobic, transphobic and intersexphobic ban on equal marriage passed by Parliament alone and not subjected to a public vote).

 

Surely there are a million better things that the Turnbull Liberal-National Government could spend this money on? This post looks at seven preferable alternatives – although I am confident that readers of this blog could nominate many, many more. Anyway, here goes – in no particular order, here’s 7 better ways to spend $158.4 million:

 

  1. Resettle an extra 2,297 refugees from Syria and Iraq

 

The biggest humanitarian crisis of 2015 – indeed, the biggest humanitarian crisis of the past decade and probably of the century so far – has been the civil war in Syria (which started almost five years ago), the subsequent rise of ISIS there and in Iraq and the horrific violence they have inflicted on the people in both places, and the enormous number of refugees that the Assad regime, the Syrian civil war and ISIS have collectively created.

 

While the vast majority of refugees remain located in neighbouring countries, the increasing numbers of people seeking asylum reaching Europe during 2015 – and, tragically, the deaths of many who were attempting to flee – finally prompted the Australian Government to announce it would accept 12,000 refugees from Syria and Iraq in addition to its annual intake of 13,750 refugees (then Prime Minister Tony Abbott announced this policy on 9 September[ii], making it one of his last acts in office).

 

The cost of this additional intake of refugees was not revealed until the Mid-Year Economic and Fiscal Outlook (MYEFO), released by new Treasurer Scott Morrison on 15 December 2015. The MYEFO papers showed that the net cost to the Budget of permanently resettling an extra 12,000 refugees fleeing the conflict in Syria and Iraq is $827.4 million over 4 years[iii].

 

Which means that, were the Turnbull Government to re-allocate the $158.4 million it is currently planning to spend on a marriage equality plebiscite, we could resettle at least an additional 2,297 refugees from Syria and Iraq[iv]. Surely most Australians, indeed most humans, would consider that a much better way to spend this money.

 

  1. Restore 2015-16 Foreign Aid Funding to Afghanistan… and Sub-Saharan Africa… and Palestine… and Middle East & North Africa… and UNICEF

 

Foreign Minister Julie Bishop is a ‘Julie-come-lately’ when it comes to supporting marriage equality – she only announced her personal support for it in early November 2015.[v]

 

However, in the same breath she also reiterated her commitment to a plebiscite: “I have absolutely no concerns about it myself, but I know there [are] a lot of people who are deeply concerned about the issue… I think the Australian people should have their say.”

 

So, rather than casting her vote as an elected representative, one out of 226 Federal Parliamentarians who have the power to change the law in a matter of weeks, Minister Bishop would instead prefer to waste years, and $158.4 million, on a completely unnecessary public vote, leaving her own vote as just one out of the 15.26 million Australians currently on the electoral roll[vi].

 

As well as abrogating her personal responsibility as an MP (which includes the ability, nay responsibility, to consider and pass legislation), according to the Australia Institute, “current foreign minister Julie Bishop [also holds] the dubious honour of being the minister to oversee the largest drop in aid spending [compared] to Gross National Income”[vii].

 

The Liberal-National Government of which she is a key member plans to cut aid funding by $1.4 billion per year, or 33 per cent, by 2017-18. These cuts include savage reductions in the 2015-16 Budget year across a large number of countries and international aid programs[viii].

 

Obviously, the $158.4 million intended to fund the marriage equality plebiscite is small change compared to these overall totals, but, applying that figure to the 2015-16 Budget year, it could restore current financial year funding to:

 

  • Afghanistan (2015-16 Budget cut by $52.4 million)
  • Sub-Saharan Africa ($74.2 million cut)
  • Palestine ($13.7 million cut)
  • Middle East and North Africa ($2.3 million cut) and
  • UNICEF ($14 million cut).[ix]

 

And there would almost be enough money left over to undo the $3 million cut to the United Nations Program on HIV and AIDS (UNAIDS) too. Perhaps Minister Bishop should spend more time advocating for Australian Government funding to assist the world’s disadvantaged, and less time calling for a pointless plebiscite.

 

  1. Support an additional 1,975 postgraduate students

 

Malcolm Turnbull likes to claim he is the ‘Innovation Prime Minister’, and that it is his mission to lead an ‘agile’ Government and an even more ‘agile’ economy. Well, instead of wasting $158.4 million on an unnecessary, inappropriate and divisive marriage equality plebiscite, he could fund Australian Postgraduate Awards for 1,975 extra students for three years instead.[x]

 

Imagine that – almost 2,000 extra PhDs in Australia contributing to science, and technology, and engineering, and mathematics, and countless other fields. Imagine what they could add to the sum of human knowledge. Alas, we will not find out if Turnbull insists on spending the money on something which he himself considered unnecessary just one month before becoming PM.[xi]

 

  1. Hire 477 more registered nurses

 

In his 2014-15 Federal Budget, then Treasurer Joe Hockey cut $80 billion from the states and territories, monies that were supposed to fund increases in spending on health and education over the subsequent decade. This included $50 billion in cuts to hospitals, and another $30 billion in cuts to schools.

 

The new Treasurer, Scott Morrison, has indicated that, not only will he not be reversing these cuts, even if the Turnbull Government increased the GST to 15% and expanded it to cover fresh food he still would not use the revenue collected to restore this funding.[xii]

 

Obviously, $158.4 million wouldn’t go very far in undoing the massive reductions in future health spending by both Hockey and now Morrison, but it would nevertheless be enough to pay the base salary of at least 477 registered nurses for four years[xiii] – and that’s nothing to be sneezed at.

 

  1. Employ an extra 578 teachers in public schools

 

Based on a similar approach, re-allocating $158.4 million from an unnecessary, inappropriate and divisive marriage equality plebiscite to instead give to the states and territories to allow them to employ an additional 578 teachers[xiv] in public schools across the country sounds like a much smarter, and productive, investment to me.

 

  1. Reduce Government debt

 

The Abbott Liberal-National Government was elected in September 2013 on the back of three relentlessly negative fear campaigns – against a carbon tax, against people seeking asylum, and against ‘Labor’s debt and deficit’. In fact, the ‘debt and deficit’ focus dates all the way back to the 2008-09 Global Financial Crisis, making it perhaps Abbott’s longest-serving attack on the Rudd, Gillard and Rudd Governments (including when Abbott was part of the Shadow Ministry).

 

Of course, in the years since they were elected the Abbott, and now Turnbull, Governments have overseen ongoing Budget deficits, and continued increases in net Government debt. Based on MYEFO, net debt will now not peak until 2017-18, at 18.5% of GDP (or $336.4 billion)[xv], with Treasury forecasting there will not be a Budget surplus until 2020-21 at the earliest.

 

Which makes any decision to hold a marriage equality plebiscite costing $158.4 million, in either 2016-17 (when there is expected to be a Budget deficit of $33.7 billion) or 2017-18 (with its anticipated deficit of $23 billion)[xvi], seem entirely profligate.

 

If Malcolm Turnbull, Scott Morrison, and their Coalition colleagues, are genuinely concerned about reducing Government ‘debt and deficit’, then deciding not to hold a $158.4 million opinion poll would have to be one of the easiest Budget ‘saves’ of all time.

 

  1. Fund the National Safe Schools Coalition… almost 20 times over

 

With the glaring, and profoundly disappointing, exception of marriage equality, the former Labor Government passed a large number of LGBTI reforms, including long overdue de facto relationship recognition, and the introduction of LGBTI anti-discrimination protections in federal law for the first time.

 

One initiative that received less coverage at the time was the 2013 decision to fund the national rollout of the Safe Schools Coalition, which had previously only operated in Victoria, with an $8 million grant. To their credit, the Liberal-National Government has not overturned this funding, and the expansion of Safe Schools has occurred under their watch.

 

The estimated cost of the marriage equality plebiscite would be enough to fund this rollout almost 20 times over – and, in practice, it would take much less than $158.4 million to help ensure that all schools across the country could participate in a program aimed at combatting homophobia, biphobia, transphobia and intersexphobia (and sadly one that will be even more needed given the hatred and prejudice likely to be whipped up by the plebiscite debate).

 

Indeed, there would be plenty of money left over to help fund the implementation of the reforms recommended by the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People in Australia, and to remove out-of-pocket medical expenses for transgender Australians, and even to fund housing services for LGBTI young people, who are disproportionately affected by homelessness.

 

If the Turnbull Government really wants to spend $158.4 million on issues that affect LGBTI Australians, it should redirect it to the above programs (and others aimed at improving LGBTI health and welfare). It could do so comfortable in the knowledge that it would still be able to pass marriage equality at, essentially, no cost.

 

**********

 

In conclusion, there is absolutely no reason for the Turnbull Government to hold a plebiscite on marriage equality, especially not when, as well as being publicly divisive, it would cost the taxpayer an estimated $158.4 million.

 

This reform, which is solely concerned with recognising the fundamental equality of lesbian, gay, bisexual, transgender and intersex Australians, and their relationships, under secular law, should be passed in the same way that John Howard’s ban on same-sex marriage was – by our 226 elected representatives, sitting in the Federal Parliament.

 

Which would leave the money that would have been spent on the plebiscite available for any of the seven options listed above, or for a myriad of other choices. There’s no denying that Malcolm Turnbull is an intelligent man – here’s hoping he’s smart enough to choose something other than to persist with Tony Abbott’s stupid, and damaging, plebiscite proposal.

 

151222 Turnbull

Prime Minister Malcolm Turnbull, who could spend $158.4 million on resettling an extra 2,297 refugees from Syria and Iraq, or who could waste it on an unnecessary, inappropriate and divisive plebiscite.

 

[i] As quoted on page 22 of the Senate Committee Report: Matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia, 15 September 2015 http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Marriage_Plebiscite/Report

[ii] Sydney Morning Herald, “Abbott Government agrees to resettle 12,000 Syrian refugees in Australia”, 9 September 2015: http://www.smh.com.au/federal-politics/political-news/abbott-government-agrees-to-resettle-12000-syrian-refugees-in-australia-20150909-gjibqz.html

[iii] MYEFO Expenditures can be found here: http://budget.gov.au/2015-16/content/myefo/html/11_appendix_a_expense.htm

[iv] Based on the current estimate of a cost of $68,950 spent per refugee over four years. The number of additional refugees would likely be higher than 2,297 given economies of scale.

[v] ABC, “Julie Bishop announces support for same-sex marriage”, 2 November 2015: http://www.abc.net.au/news/2015-11-02/julie-bishop-announces-support-for-same-sex-marriage/6906740

[vi] Source Australian Electoral Commission: http://www.aec.gov.au/Enrolling_to_vote/Enrolment_stats/

[vii] Matt Grudnoff & Dan Gilchrist, “Charity Ends at Home: The decline of foreign aid in Australia”, The Australia Institute, September 2015, p iii (full report available here: http://www.tai.org.au/content/charity-ends-home-decline-foreign-aid-australia

[viii] Ibid, and in Guardian Australia, “Budget cuts to foreign aid put Australia on track for least generous spend ever,” 14 May 2015: http://www.theguardian.com/news/datablog/2015/may/14/budget-cuts-to-foreign-aid-put-australia-on-track-for-least-generous-spend-ever

[ix] Figures from Guardian Australia article and Charity Ends at Home report, above.

[x] The 2016 Australian Postgraduate Award full time payment is $26,288 (https://www.education.gov.au/australian-postgraduate-awards ) and applying the current 1.7% inflation figure would make three years of support (2016-2018) cost $80,210.

[xi] “There is a huge number of big issues, so one of the attractions of a free vote is that it would have meant the matter would have been resolved in this parliament one way or another in a couple of weeks.” Guardian Australia, “Malcolm Turnbull says plebiscite on marriage equality will keep issue alive”, 12 August 2015: http://www.theguardian.com/australia-news/2015/aug/12/malcolm-turnbull-says-plebiscite-on-marriage-equality-will-keep-issue-alive

[xii] Guardian Australia, “Scott Morrison will not raise GST to fund states’ funding black holes”, 10 December 2015: http://www.theguardian.com/australia-news/2015/dec/10/scott-morrison-will-not-raise-gst-to-fund-states-funding-black-holes

[xiii] Based on the highest base wage of a registered nurse in NSW – $79,383, source: Health Times, “What do nurses earn?”, 17 September 2015 http://healthtimes.com.au/hub/nursing-careers/6/guidance/nc1/what-do-nurses-earn/605/ – and applying 3% salary increases for the subsequent 3 years.

[xiv] Based on the base salary of a five-year trained teacher (BA/MTeach, BSc/MTeach, BEd/BA, BEd/BSc) in NSW government schools – $65,486, source: University of Sydney Faculty of Education and Social Work: http://sydney.edu.au/education_social_work/future_students/careers/teacher_salaries.shtml – and applying 3% salary increases for the following 3 years.

[xv] MYEFO Debt Statement: http://www.budget.gov.au/2015-16/content/myefo/html/09_attachment_e.htm

[xvi] ABC, “Budget deficit increased as MYEFO released,” 15 December 2015: http://www.abc.net.au/news/2015-12-15/budget-deficit-increased-as-myefo-released/7029472

Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

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

The Executive Director

Australian Law Reform Commission

GPO Box 3708

Sydney NSW 2001

c/- freedoms@alrc.gov.au

Sunday 15 February 2015

To whom it may concern

SUBMISSION TO TRADITIONAL RIGHTS AND FREEDOMS INQUIRY

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

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

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

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

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

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

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

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

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

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

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

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

Similarly, article 21 of the ICCPR establishes that:

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

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

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

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

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

[End extract]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[End extract]

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

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

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

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

Sincerely

Alastair Lawrie

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

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

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

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

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

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

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

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

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

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

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

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

Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees Sent to Manus Island, PNG

UPDATE: Sunday 20 July 2014

On Friday 18 July, I received the following response from the Department of Immigration and Border Protection, to my correspondence about the treatment of LGBTI asylum seekers and refugees:

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

Thank you for your letter of 2 February 2014 to the Hon Scott Morrison MP, Minister for Immigration and Border Protection, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I regret the delay in responding.

As a party to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), Australia takes its international obligations seriously. Australia is committed to treating asylum seekers fairly and humanely, and providing protection to refugees consistent with the obligations set out in the Refugees Convention, and other relevant international treaties to which Australia is a party.

The Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to Nauru and Papua New Guinea (PNG) where any asylum claims they may have will be assessed, and if found to be a refugee, they will be resettled in Nauru and PNG or in another country.

Any claims made against Nauru and PNG by an IMA, including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration or exemption from transfer.

Nauru and PNG are also both parties to the Refugee Convention. The Memoranda of Understanding (MOU) they have signed with Australia on the offshore processing arrangements reaffirm their commitment to the Refugees Convention and to treating people transferred with dignity and respect in accordance with human rights standards.

The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

If homosexual activity should occur in the OPC, there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.

The department notes the release of the reports by both the United Nations High Commissioner for Refugees (UNHCR) and Amnesty International on the Manus OPC. Any reports received by the department will be reviewed, and observations or comments verified. Where reports make practical observations that can be implemented and would improve the operations of the centres, the government will address these in partnership with Nauru and PNG to address any deficiencies in good faith.

Any claims of mistreatment at the Manus OPC would be primarily a matter for the Administrator of the OPC. The Manus OPC is administered by PNG under PNG law, with support from Australia. The PNG Minister for Foreign Affairs and Immigration appoints the Administrator of the Centre (a PNG national) under section 15D of the Papua New Guinea Migration Act 1978 (the Act). The Administrator, who, under the Act has control and management of the Centre (currently the Chief Migration Officer, Head of the PNG Immigration and Citizenship Service Authority) has an Operations Manager at the OPC reporting to him, who has oversight of the day-to-day operations of the OPC.

To assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met, including through the provision of health and welfare services. Transferees can report any concerns to OPC staff.

Regarding the distribution of condoms, I can assure you that condoms are available at the Manus OPC, and the department’s contracted health service provider, International Health and Medical Service, conduct regular health information sessions on safe sex practices.

Thank you for bringing your concerns to the Minister’s attention.

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

Some quick thoughts on the above:

  • Even though we are more than a decade into our post-Tampa nightmare of refugee policy in Australia, it is still shocking to see people simply seeking asylum in Australia described, by government officials, as Illegal Maritime Arrivals (IMAs). And it is probably almost as shocking realising that the same government official doesn’t even need to spell out what an OPC is anymore, instead it is taken as a given.
  • While the letter acknowledges there is no mandatory reporting of homosexual activity under PNG law, it explicitly does not state that there is no reporting of homosexual activity to PNG Police, or refute the claim that asylum seekers have been told they will be reported if found to engage in such activity.
  • It is difficult to accept the statement that “[t]o assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met” from the same Government that is responsible for the death, in custody, of Reza Berati just over two weeks after I wrote my initial letter.
  • It is obviously welcome that, at least on paper, the Government claims it makes condoms available to asylum seekers on Manus Island – although whether they are made available in reality would be difficult to verify (given the shroud of secrecy surrounding, and lack of journalist access to, the detention facilities in PNG and Nauru).
  • The main problem remains however, and that is there is no firm commitment not to send LGBTI asylum seekers for ‘processing’ to countries which criminalise homosexuality, and no commitment that LGBTI refugees will not be permanently resettled in countries where they are liable to punishment merely for sexual intercourse.
  • The process outlined in the letter – that an asylum seeker must make a claim against the laws of PNG or Nauru prior to their transfer, is farcical given what we know about the current way asylum seekers are being assessed: while they are detained on navy or customs vessels, on the open sea, through a short interview (with as few as four questions by some reports) via teleconference to officials in mainland Australia. It is outrageous to suggest that the only way a gay asylum seeker can avoid being sent to another country which criminalises their sexual orientation is to declare their sexual orientation at short notice, whilst intimidated by naval or customs personnel (and potentially while intimidated by other asylum seekers, including possible family members), and to specifically claim protection against countries which they may not even be aware they are being taken to, and may not know criminalise homosexuality.

While I certainly wasn’t expecting to take much comfort from this response from the Department of Immigration and Border Protection, it is still depressing to realise that, yet again, so little solace is to be found.

ORIGINAL LETTER

The Hon Scott Morrison MP

Minister for Immigration and Border Protection

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 2 February 2014

Dear Minister

TREATMENT OF LGBTI ASYLUM SEEKERS AND REFUGEES SENT TO MANUS ISLAND, PAPUA NEW GUINEA

I am writing regarding the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers and refugees sent to Manus Island, Papua New Guinea, both for offshore processing and permanent resettlement.

In particular, I am writing about concerning allegations raised in the Amnesty International Report This is Breaking People: Human rights violations at Australia’s asylum seeker processing centre on Manus Island, Papua New Guinea, which was released on 11 December 2013.

Chapter 8 of that report, titled ‘Asylum claims on the basis of sexual orientation’ (pages 73-75), details a range of serious allegations about the mistreatment of LGBTI asylum seekers sent to Manus Island for processing.

Specifically, Amnesty International found that:

  • Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
  • Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there
  • Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police (despite no requirement for mandatory reporting)
  • Gay asylum seekers have reported being subject to bullying and harassment from other detainees and staff, including physical and verbal abuse and attempted molestation, but are not reporting this abuse because of fear of prosecution for their homosexuality
  • Interviewees have indicated that some gay asylum seekers have changed or are considering changing their asylum claim, from persecution on the basis of sexual orientation to persecution on another ground, in order to avoid prosecution (thereby jeopardising the chances of their claim ultimately being accepted)
  • Interviewees have indicated that some gay asylum seekers have chosen to return home, despite the risks involved to the personal safety/liberty, rather than be subjected to ongoing mistreatment because of their sexual orientation on Manus Island and
  • Condom distribution has been banned within the Manus Island detention facility, despite the risk of HIV transmission.

In these circumstances, it is perhaps unsurprising that Ms Renate Croker, the senior official from the Department of Immigration & Border Protection located at the Manus Island detention facility, told Amnesty International that “she was unaware of any asylum claims being made on the basis of LGBTI identity.”

Not only is this contradicted by the Amnesty Report – which interviewed a man who reported that his claim was based on persecution due to his sexual orientation, and who expressed concern about being transferred to Manus Island for this reason – it also ignores the fact that some gay asylum seekers may have changed their claims to other grounds (for the reasons outlined above), or that some asylum seekers may happen to be LGBTI but their claim is in fact based on persecution on other grounds (for example, race or religion).

Irrespective of how their claim is being dealt with, the Australian Government has a responsibility to protect the human rights of any and all LGBTI asylum seekers who have sought protection in Australia. This includes the right to freedom from prosecution on the basis of sexual orientation, gender identity or intersex status, the right to claim asylum and the right to health.

From the information contained in the This is Breaking People report, it seems the Australian Government is falling well short of its obligations in this area.

I should note at this point that I am strongly opposed to the offshore processing and permanent resettlement of any asylum seekers by the Australian Government. This policy does not constitute a humane response, nor does it live up to our international humanitarian and legal responsibilities.

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

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

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

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

If you, as Minister for Immigration and Border Protection, cannot guarantee that all asylum seekers and refugees, including but not limited to LGBTI people, have access to condoms, then you are potentially endangering their lives and you should be held accountable for any health problems which occur as a result (noting that HIV continues to be life-threatening in the absence of treatment).

It has been clear since the reintroduction of offshore processing of asylum seekers in Nauru and Papua New Guinea, passed by the previous Labor Government and supported by the Liberal-National Opposition in mid-2012, that the criminalisation of homosexuality in these countries constituted a significant threat to the human rights of LGBTI asylum seekers sent there.

Indeed, I wrote to you as Shadow Minister for Immigration expressing my concerns about this exact issue in September 2012. I did not receive a response addressing the subject of LGBTI asylum seekers prior to your assumption of the role of Minister for Immigration and Border Protection in September 2013.

I sincerely hope, now that you are the person directly responsible for the health and wellbeing of asylum seekers and refugees, and especially after the Amnesty International Report This is Breaking People has confirmed that these human rights abuses are real, that you take this issue, and your responsibilities, seriously.

I look forward to your response on this important issue.

Yours sincerely,

Alastair Lawrie

A copy of the Amnesty International Report This is Breaking People, can be found here: <http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf