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

Posted on September 25, 2015 by Alastair Lawrie

Mr Tim Wilson

Australian Human Rights Commissioner

Friday 25 September 2015

Dear Mr Wilson

Submission on Religious Freedom Roundtable Proposal

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

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

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

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

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

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

The ALRC went on to comment that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

Alastair Lawrie

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

[ii] Ibid.

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

[iv] Ibid, para 4.39, page 104.

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

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

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

[viii] Ibid.

Submission re Australian Law Reform Commission Freedoms Inquiry Interim Report

Posted on September 21, 2015 by Alastair Lawrie

Australian Law Reform Commission

GPO Box 3708

SYDNEY NSW 2000

freedoms@alrc.gov.au

Monday 21 September 2015

To whom it may concern

SUBMISSION RE ALRC FREEDOMS INQUIRY INTERIM REPORT

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

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

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

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

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

From my earlier submission:

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

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

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

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

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

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

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

Similarly, article 21 of the ICCPR establishes that:

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

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

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

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

[End extract]

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

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

Chapter 3: Freedom of Speech

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

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

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

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

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

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

As I wrote in my earlier submission [edited]:

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

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

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

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

[End extract]

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

Chapter 4: Freedom of Religion

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

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

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

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

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

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

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

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

There are two reasons for this:

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

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

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

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

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

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

As I wrote previously:

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

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

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

[End extract]

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

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

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

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

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

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

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

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

Chapter 5: Freedom of Association

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

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

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

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

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

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

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

Sincerely

Alastair Lawrie

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

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

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

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

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

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

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

Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology Stage 2

Posted on September 17, 2015 by Alastair Lawrie

Update:

The updated Ethical guidelines on the use of assisted reproductive technology were released by the NHMRC in April 2017.

Pleasingly, they made some improvements both to the previous guidelines and to the draft revised guidelines that had been released for consultation. However, they did not address all of the points made in my submission (see original post, below).

First, they do not include a stand-alone ethical principle of non-discrimination, retaining it as only one element of principle 7 (“Processes and policies for determining an individual’s or a couple’s eligibility to access ART services must be just, equitable, transparent and respectful of human dignity and the natural human rights of all persons, including the right to not be unlawfully or unreasonably discriminated against”).

Second, on the other hand they did update the discussion of this principle on page 26 to substitute sexual orientation for sexual preference, and to add new grounds of gender identity and intersex status. Which is certainly an improvement from the original guidelines, although it would be better for the latter attribute to be replaced with sex characteristics, as called for in the March 2017 Darlington Statement.

Third, disappointingly but also somewhat expectedly, the NHMRC did not overturn the ethical prohibition on commercial surrogacy, something I continue to see as a necessary harm reduction initiative to limit the possible exploitation of women in overseas countries.

Fourth, the guidelines continue to allow staff members to refuse to provide ART procedures on the basis of their conscientious objection: “A member of staff or a student who expresses a conscientious objection to the treatment of an individual patient or to an ART procedure is not obliged to be involved in that treatment or procedure, so long as the objection does not contravene relevant anti-discrimination laws and does not compromise the clinical care of the patient…” Which means the laws of all state and territories will need to be reviewed to ensure discrimination against LGBTI people accessing ART services is specifically prohibited.

Fifth, and perhaps most concerningly, the NHMRC has left the door slightly ajar to the sex selection of embryos – something that has specific dangers, right now, for intersex embryos, sets a dangerous precedent for possible selection against diverse sexual orientations and gender identities in the future, and reinforces negative gender stereotyping more broadly.

While the NHMRC has retained the existing prohibition on sex selection (“8.14 Sex selection techniques may not be used unless it is to reduce the risk of transmission of a genetic condition, disease or abnormality that would severely limit the quality of life of the person who would be born”), they have also stated this situation could change in the future:

“despite AHEC’s majority view that there may be some circumstances where there is no ethical barrier to the use of sex selection for non-medical purposes, paragraph 8.14 applies until such time that wide public debate occurs and/or state and territory legislation addresses the practice.”

Any such moves will need to be resisted.

Sixth, and finally, the NHMRC address some, but not all, of the points raised by OII Australia (now Intersex Human Rights Australia) and endorsed in my submission, including:

The guidelines do recommend the provision of information and counselling to prospective parents where “clinics should promote an environment of positive acceptance and non-discrimination”, but
The guidelines do not specifically rule out the use of pre-implantation genetic testing to prevent the births of intersex babies.

Original Post:

Project Officer – ART Public Consultation

Ethics and Governance Section

Evidence, Advice and Governance

National Health and Medical Research Council

GPO Box 1421

CANBERRA ACT 2601

ethics@nhmrc.gov.au

Thursday 17 September 2015

Dear Project Officer

ETHICAL GUIDELINES ON THE USE OF ASSISTED REPRODUCTIVE TECHNOLOGY IN CLINICAL PRACTICE AND RESEARCH

Thank you for the opportunity to provide a further submission to the National Health and Medical Research Council (NHMRC) review of Part B of the Ethical guidelines on the use of assisted reproductive technology in clinical practice and research, 2007 (the ART guidelines).

The following submission builds on my earlier submission, in April 2014, to this review (a copy of which is available here: https://alastairlawrie.net/2014/04/20/submission-on-nhmrc-review-of-ethical-guidelines-for-assisted-reproductive-technology/ ).

Overall, while I note that there have been some positive outcomes from the previous round of consultation – including the recognition in para 5.1.2 that “[c]linics must not accept donations from any donor who wishes to place conditions on the donation that the gametes are for the use only by individuals or couples from particular ethnic or social groups, or not be used by particular ethnic or social groups”, and the revised approach to transmissible infections/infectious disease at para 5.2.5 – there remain a range of areas where the ART guidelines should be improved.

First, I believe that the ‘principles and values’ outlined on pages 12 and 13 of the draft ART guidelines should include a specific principle of Non-Discrimination, and that the explanation for this principle should explicitly acknowledge that there should be no discrimination on the basis of sexual orientation, gender identity or intersex status in the provision of assisted reproductive technology services.

Second, and on a related matter, in the chapter “Application of ethical principles in the clinical practice of ART”, the discussion under point 3.5 on page 15 should be updated to reflect contemporary best practice.

Specifically, the sentence “[t]here must be no unlawful or unreasonable discrimination against an individual or couple on the basis of:

race, religion, sex, marital status, sexual preference, social status, disability or age”

reflects out-dated terminology and does not recognise all necessary groups.

The term ‘sexual preference’ should be replaced by ‘sexual orientation’, and the additional terms ‘gender identity’ and ‘intersex status’ should be added, to ensure that all members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community are protected from discrimination, and also to ensure that the ART guidelines are consistent with the protected attributes covered under the Sex Discrimination Act 1984.

Third, consistent with my previous submission, I disagree with the discussion under point 3.6 on page 16 regarding commercial surrogacy.

In particular, I do not support the blanket statement that “[i]t is unethical for individuals, or couples, to purchase, offer to purchase or sell gametes or embryos or surrogacy services” or the equally unequivocal blanket ban at para 8.7.1 (“[c]linics and clinicians must not practice, promote or recommend commercial surrogacy, nor enter into contractual arrangements with commercial surrogacy providers.”)

As outlined previously, I believe that the Australian Law Reform Commission (ALRC) should be asked to investigate the issue of commercial surrogacy, including consideration of what a best practice scheme would look like, before determining whether all commercial surrogacy services should be deemed unethical and therefore illegal.

From my previous submission:

“While I agree that commercial surrogacy raises a variety of complex ethical issues, I do not necessarily agree with such a broad-sweeping and all-encompassing statement against commercial surrogacy. I do not believe there is sufficient evidence to assert that in every single situation commercial surrogacy is ‘unethical’ or ‘wrong’.

Of course, I am, like most people, sensitive to the very real potential for commercial surrogacy to result in the exploitation of women for their reproductive capabilities. This has to be a major, if not the major, consideration in determining whether to allow commercial surrogacy and if so what form of regulation might be appropriate.

However, I am also aware that the current legal situation – where commercial surrogacy in Australia is banned, and as a direct result of these laws an increasing number of Australian individuals and couples are engaging in commercial surrogacy arrangements overseas – may in fact cause a far greater degree of exploitation of women, especially in developing countries and/or countries which do not closely regulate surrogacy arrangements.

It may be that a domestic ban on commercial surrogacy has, contrary to the intended outcome of those who introduced it, in fact resulted in greater exploitation of women when considered as a whole. It may also be that, creating a domestic commercial surrogacy scheme, which would allow for direct oversight by Commonwealth (or State and Territory) authorities, could lead to a significant reduction in the potential for such exploitation.

I do not expect the review process considering these Guidelines to come to a conclusion about these difficult matters. Nor am I willing, or in a position, to even attempt to suggest what a domestic commercial surrogacy scheme would look like.

However, I do believe that this is an issue that requires further investigation, and could be the subject of a comprehensive review by the Australian Law Reform Commission, or their State and Territory equivalents.

The ALRC could be asked not to review whether such a scheme should be adopted but to determine, if commercial surrogacy was to be allowed in Australia, what the best possible scheme (with the least potential for the exploitation of women) would look like. The Parliament, and the wider community, could then discuss and debate the option that was put forward and make an informed choice about whether such a model was preferable to the ongoing domestic ban on commercial surrogacy (and the corresponding trend to overseas surrogacy arrangements).

I believe that such a debate, informed not just by a practical proposal but also by the real-world consequences of the current ban, is vital before we can truly come to grips with and possibly resolve whether a permanent ban on commercial surrogacy is ethical or otherwise.”

Fourth, I continue to oppose ‘Conscientious objection’ provisions (under point 3.7 on pages 16 and 17) that would allow a member of staff or student to refuse to treat an individual or couple on the basis of that person’s sexual orientation, gender identity or intersex status, or on their relationship status.

The refusal to provide a medical service on these grounds is, and always should be considered, unethical.

Again, from my previous submission:

“While I note that the provision of ART services may, for some staff members of students, raise ethical concerns, I believe that the drafting of this provision is far too broad, and allows for conscientious objections even when such objections are themselves unethical.

For example, the provision as drafted would allow an individual member of staff to refuse to provide ART services to a person on the basis of that person’s sexual orientation, gender identity or intersex status (if that person believed that ART services should not be provided to such persons) or on the basis of relationship status (if the person believed that only ‘opposite-sex’ married persons should have access to ART).

With the increasing acceptance of LGBTI Australians (as evidenced by the long-overdue introduction of federal anti-discrimination protections in 2013) and of different relationship statuses (including the 2008 reforms to federal de facto relationship recognition), none of these objections – while potentially genuinely held by the individual – should be allowed as the basis for refusing to provide ART services. Nor should conscientious objections on the basis of any of sexual orientation, gender identity, intersex status or relationship status be recognized as acceptable or ‘ethical’ in the context of these Guidelines.

If [point 3.7] is to be retained in the Ethical Guidelines, I recommend that it be amended to specifically note that conscientious objections do not apply, and are not accepted, with respect to the sexual orientation, gender identity, intersex status or relationship status of the intended recipient of the ART procedure or service.”

Fifth, in response to the discussion of “Sex selection for non-medical purposes” on pages 55 to 58 of the consultation draft, I submit that sex selection should not be allowed on these grounds.

There are three reasons for this:

Based on evidence from the submission of OII Australia (Organisation Intersex International Australia, see their submission here: https://oii.org.au/29939/nhmrc-genetic-selection-intersex-traits/ ), it appears that sex selection is already being used to select against embryos on the basis of intersex variations. This practice is entirely unethical, intending to prevent the birth of children on the basis of where they sit along the natural spectrum of sex variation, and should cease.
Allowing sex selection for non-medical purposes also sets a negative precedent, opening the door in future to selecting for (or more likely against) embryos on the basis of gender identity or even sexual orientation if and when genetic testing emerges which can accurately predict the existence of, or even pre-disposition towards, these traits.
As acknowledged by the consultation paper on page 55, there is a strong “possibility that sex selection for non-medical reasons may reinforce gender stereotyping, and create pressure on the person born to conform to parental expectations regarding gender.” This practice will be particularly harmful towards children born as a result of such procedures where those children express a different gender identity to that which the parents ‘choose’, and also may negatively impact children who are homosexual or bisexual.

On this basis, I do not believe that sex selection is appropriate in any of the case studies presented on pages 56, 57 and 58, and submit that it should not be included as an ‘ethical option’ under the ART guidelines.

Sixth, and finally, I would like to express my support for the submission by OII Australia to this consultation. Specifically, I endorse their recommendations that:

“Information giving and counselling must include non-pathologising information, aimed at supporting a philosophy of self-acceptance”
Pre-implantation genetic testing (PGT) should not be used to prevent the births of intersex babies and that
“The practice of sex selection should not be permitted for social, child replacement, or family balancing purposes.”

Thank you again for the opportunity to provide a submission to this consultation process. Please do not hesitate to contact me, at the details below, should you which to clarify any of the above, or to seek additional information.

Sincerely,

Alastair Lawrie

Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

Posted on February 15, 2015 by Alastair Lawrie

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:

The Commonwealth Government’s failure to protect lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians from vilification
The Commonwealth Government’s tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians, and
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.

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]:

Similarly, article 21 of the ICCPR establishes that:

[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.

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.

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].

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.

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.

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.

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.

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/

Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it?

Posted on December 21, 2014 by Alastair Lawrie

Liberal Democrat Senator David Leyonhjelm introduced his Freedom to Marry Bill 2014 on Wednesday 26 November. As the name implies, if passed it would provide lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians the freedom to marry their partner, something denied to them currently.

The fact it is being proposed by the Liberal Democrats, and not the Labor Opposition or the Greens, is seen as giving it a greater chance of securing the support of enough Liberal MPs to force Prime Minister Tony Abbott to grant a conscience vote within the Liberal Party, and therefore of having at least some chance of becoming law in 2015.

Which means we should automatically be putting our collective energies behind this Bill, in an effort to ensure its passage through parliament as quickly as possible, shouldn’t we? Well, no actually. Because, while the Leyonhjelm Bill gives marriage equality with one hand, it takes away from LGBTI non-discrimination with the other.

Alongside provisions which would grant all Australian couples the ability to get married, irrespective of sexual orientation, gender identity and intersex status, the Freedom to Marry Bill 2014 would also grant all non-government employed marriage celebrants, including civil celebrants, the ‘right’ to refuse to perform the marriages of LGBTI-inclusive couples.

Currently, section 47 of the Marriage Act 1961 restricts the right to refuse to officiate a marriage to ministers of religion, which is both increasingly irrelevant (given only 27.4% of marriages in 2014 were performed by religious celebrants) and at the very least philosophically consistent with existing exceptions to anti-discrimination laws which are granted to religious organisations.

Instead, the Freedom to Marry Bill 2014 would provide civil celebrants, who now perform 72.5% of weddings (up from 42.1% just twenty years ago), the ability to refuse to officiate marriages for LGBTI-inclusive couples. It would do so without even requiring them to be religious themselves, or to provide an explanation for their refusal – their ‘claims of conscience’ in this regard apparently trump any expectation they should perform their roles in a non-discriminatory manner.

Technically, the Bill grants religious and civil celebrants the right to reject heterosexual couples, too – and this is something that was stressed by Senator Leyonhjelm in spruiking the law to the Sydney Morning Herald in September (“[i]t’s a minor tweak but we envisage that there will be people who wish to specialise as same sex celebrants and they may not want to do conventional weddings. It will work both ways.”).

But, make no mistake, these provisions are squarely aimed at granting civil celebrants the right to refuse service to LGBTI-inclusive couples. That much is made clear by the Explanatory Memorandum to the Bill, which states that “[s]econd, it imposes no claims or burdens of conscience on those persons who object to marriages other than between a man and a woman for both religious and non-religious reasons”. There is no equivalent statement of principle setting out the ‘right’ of celebrants to refuse to perform man/woman marriages.

This view – that the provisions are aimed at allowing all celebrants to refuse LGBTI-inclusive couples (and not heterosexual couples) – is reinforced by the fact the only other specific example of refusal cited is in clause 10 of the Bill (“[i]f a chaplain refuses to solemnise a marriage because the marriage is not the marriage of a man and a woman, the chaplain must, if possible, substitute another chaplain who is willing to solemnise the marriage.”

In short, the Freedom to Marry Bill 2014 goes to great lengths to ensure that civil celebrants can refuse to officiate the marriages of LGBTI Australians, and they can do so for any reason whatsoever.

The instinctive response of many people to these changes is to say “so what, who would want their marriage officiated by someone who doesn’t approve of that marriage anyway?” And of course, there is much validity in this sentiment – as someone who is engaged to be married myself (and has been for almost five years now), I would obviously not want my wedding to be presided over by someone who opposed the fundamental equality of my relationship.

But, if we are to leave our response at that, then we are guilty both of intellectual laziness, and of misunderstanding the role of anti-discrimination protections. Because anti-discrimination laws are designed to protect people from adverse treatment on the basis of particular attributes (in this case, sexual orientation, gender identity and intersex status) in a wide range of areas across society, not simply to reinforce the understandable tendency for people to ‘choose’ employers, or goods and service providers, that are already favourable to them.

To presuppose that people have the ability to ‘choose’ is also to assume everyone has the same level of power or privilege in society that you may have. In many cases this is clearly not true – just because a highly-qualified gay man in inner-Sydney may be able to reject employment by a homophobe, does not mean a less-qualified trans* person in a regional centre with high unemployment would have the same power to do so.

With respect to the Freedom to Marry Bill 2014 in particular, just because LGBTI-inclusive couples in major cities could easily find alternative celebrants, does not mean people in small country towns, or even larger non-metropolitan centres, would have the same ‘freedom’. It is entirely conceivable that, in a place with few celebrants, all may exercise their ‘claim of conscience’ to refuse service.

Indeed, the Explanatory Memorandum concedes the possibility of lack of access to marriage due to geography in discussing the aforementioned defence chaplains provision (“[t]he requirement of ‘possibility’ recognises that there may be circumstances where a willing chaplain cannot be arranged (e.g. if the people involved are in a remote location”).

Why then should the Marriage Act 1961 allow the few civil celebrants that do exist in remote areas to refuse to perform LGBTI-inclusive weddings, imposing on those couples significant extra expense simply because of their sexual orientation, gender identity or intersex status? (After all, wouldn’t that be the definition of adverse treatment?)

There is an even larger problem with these provisions of the Leyonhjelm Bill, however. That is because there is absolutely no ideological or conceptual reason why, if the law is to recognise the ‘claim of conscience’ of a civil celebrant to refuse to officiate an LGBTI-inclusive wedding ceremony, it should not also allow goods and service providers to refuse to host or supply that wedding, for hotels or bed-and-breakfasts to deny accommodation to the couple on their honeymoon, for restaurants to deny reservations to that couple celebrating their wedding anniversary, and even to employers to be able to deny recognition to that relationship in the workplace.

All of these people can have similar, and similarly passionate, views and beliefs opposing LGBTI-inclusive marriages – and, perhaps in a preview of where Australia might be heading, all are the subject of ‘claims of conscience’ by individuals and groups against marriage equality in the United States.

If a claim of conscience exists for a civil celebrant – allowing them to treat LGBTI people unfavourably on the basis of sexual orientation, gender identity and intersex status – then, logically, it should also exist for anyone else in society who has an ‘objection’ to LGBTI equality, whether based on religion or otherwise.

Thus, the civil celebrant provisions of the Freedom to Marry Bill 2014 can be seen for what they are – a dangerous new precedent establishing a fundamental ‘right to discriminate’ against LGBTI Australians, one that goes much further than existing laws granting anti-discrimination exceptions to religious organisations, because they would allow private citizens, without any connection to organised religion, the ability to exercise this ‘right’.

In some respects, these provisions are simply the natural extension of Senator Brandis’ claims earlier in 2014 (in a different context) that “people do have a right to be bigots.” It certainly appears as if Senator Leyonhjelm was listening – with his first private member’s bill, he is promoting the right of civil celebrants to be homophobes (and biphobes, transphobes and intersexphobes, too).

This fits perfectly within his overall political approach as well – when describing the Bill in the Sydney Morning Herald he said “[i]t’s libertarian philosophy: Individuals should be able to discriminate but governments should not.”

It is therefore easy to see this move as the first step in efforts to unwind our relatively comprehensive system of anti-discrimination laws, not just in relation to sexual orientation, gender identity and intersex status, but also race, sex, disability and age (among other attributes).

The threat is that he is not alone in holding such an extremist view of – or more accurately, against – the principle of anti-discrimination generally, and anti-discrimination laws specifically. He is bound to receive significant support from more radical elements within the Liberal and National Parties (such as Senator Bernardi, and even the aforementioned Attorney-General) in this approach.

It will also be cheered on by conservatives in the media (hello Andrew Bolt) and by right-wing think-tanks, such as the Institute of Public Affairs, who hold an inordinate amount of influence over the current Abbott Coalition Government.

In fact, the current Australian Human Rights Commissioner with responsibility for sexual orientation, gender identity and intersex issues, Tim Wilson, made exactly the same arguments as Senator Leyonhjelm when appearing on behalf of the IPA at the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Human Rights and Anti-Discrimination Exposure Draft Bill in early 2013 (notable quotes including:

“We certainly support very strongly discrimination law related to government and the way it operates towards government, but in a broad philosophical concept we [the IPA] are not a big fan of discrimination law being imposed across civil society in the private sector. The private sector should be able to make choices…” (emphasis added)
“What we have made crystal clear is we believe that anti-discrimination laws should operate on government. That is different from what operates within the private sector and within a free society…”
“Discrimination occurs within society. Sometimes it exists for the right reasons, because there are organisational goals that people, when they freely come together and associate, believe in. People should be allowed to reasonably exercise those and they do themselves a disservice because of something that is not relative to the objective of the organisation. I think that is a very fair and reasonable principle.”
“[Y]ou have a human right of freedom of association, you have right of speech; I am not sure I am convinced there is a human right against discrimination, as abhorrent as it is.”)

Viewed in this context, the decision by Senator Leyonhjelm to introduce the civil celebrant ‘claim of conscience’ provisions, as part of the Freedom to Marry Bill 2014, is a very clever move – in the ‘John Howard’ sense of the word. It undermines the principle of LGBTI anti-discrimination as part of a law which simultaneously recognises a separate LGBTI right – to have our relationships treated in the same way as cisgender, heterosexual couples.

The question then is, how should we, as members of the LGBTI community, respond to this Bill? I would argue that the initial response is relatively straightforward – to call on Senator Leyonhjelm to withdraw these aspects of the legislation, so that the forthcoming debate can be solely about the principle of marriage equality, and not also the potential roll-back of LGBTI anti-discrimination laws.

If, as expected, he refuses to amend the Bill, then I believe we should be lobbying the ALP, Greens, crossbench Senators and LGBTI-friendly sections of the Coalition to vote against these provisions in the Parliament. Hopefully, enough votes can be secured on the floor to ensure marriage equality succeeds without establishing a new ‘right to discriminate’ against LGBTI people in the process.

But the most important question comes if this effort is unsuccessful – what should we do if the Bill reaches the final vote, unamended, especially if this is seen as the best chance of securing marriage equality during this term of parliament?

Should we support passage of the Freedom to Marry Bill 2014 even though it actively undermines the principle of LGBTI anti-discrimination? Or should we call for the Bill to be rejected, so that another marriage equality Bill can take its place, in full knowledge it could be delayed until 2017 as a result?

I acknowledge that this is a very difficult question to answer, and that there will obviously be a range of different responses across our community. For my part, I would choose the latter option – because I sincerely believe that the Senator Leyonhjelm Bill is so flawed, in its current state, that it should not be supported.

I write this as someone who strongly believes in marriage equality (both personally, and for our community), but who does not see this one issue as trumping other LGBTI rights which we have either already achieved, or for which we must still campaign.

It took 38 years from the passage of the Racial Discrimination Act 1975 for lesbian, gay, bisexual, transgender and intersex Australians to receive equivalent anti-discrimination protections under Commonwealth law (with the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013).

To me, it is unconscionable that the very next major Commonwealth law reform concerning LGBTI rights would actively undermine the principles at the heart of the Sex Discrimination Act reforms.

Indeed, one of the most positive features of those amendments was the ‘carve-out’ which meant that Commonwealth-funded aged care services operated by religious organisations cannot discriminate against LGBT people accessing their services (unlike religious organisations in other areas).

This was important not just to protect ageing LGBT individuals and couples who need this care, but also because it set an important precedent, demonstrating that the ‘right’ for religious organisations to discriminate on the basis of sexual orientation and gender identity is not inviolable, thereby paving the way for future reforms in this area.

A victory for Senator Leyonhjelm and the extreme libertarians on the civil celebrant provisions would set an equally-important (and perhaps even more important) precedent in the other direction, establishing the ‘claim of conscience’ for private citizens to discriminate against LGBTI people, for any reason whatsoever, and emboldening them to pursue wider reforms aimed at unwinding anti-discrimination law. I believe this precedent should be denied to them, even if it means marriage equality might be delayed in the process.

Of course, I absolutely respect that other people may reach a different conclusion – that, having waited more than a decade since the Howard Coalition Government’s original homophobic ban on marriage equality in 2004, and the failure of successive Parliaments since then to remedy this injustice, people may be willing to accept the ‘claim of conscience’ provisions in this legislation as simply the price of doing business.

In fact, I suspect the majority of our community may feel that way – if so, I would accept that verdict, and agree we should actively lobby to have the Freedom of Marry Bill 2014 passed in 2015 (while making sure we strengthen our collective resolve to fight against any further moves against LGBTI anti-discrimination protections in the future).

But, as I have attempted to outline above, this is not an easy or straight-forward decision. I believe this debate – whether we are willing to accept a marriage equality Bill that undermines the principle of LGBTI anti-discrimination – is one that we must have first, before the Bill is to be voted upon.

We should not simply ‘sleepwalk’ into supporting the Freedom to Marry Bill 2014 without first considering the consequences. Nor should we automatically allow Senator Leyonhjelm to take the helm of the marriage equality push – because, while he might be an ally in allowing us to say “I do”, he also wants to allow civil celebrants to tell us that they won’t.

Senator Leyonhelm might want you to be able to say “I do”, but he also believes civil celebrants should be able to tell you they won’t.

Submission to Rights & Responsibilities 2014 Consultation

Posted on October 27, 2014 by Alastair Lawrie

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

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

Mr Tim Wilson

Human Rights Commissioner

Australian Human Rights Commission

c/- rights2014@humanrights.gov.au

Monday 27 October 2014

Dear Commissioner Wilson

SUBMISSION TO RIGHTS & RESPONSIBILITIES 2014 CONSULTATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Letter to Prime Minister Abbott re Intercountry Adoption by Same-Sex Couples Part 2

Posted on May 28, 2014 by Alastair Lawrie

In early March I wrote to Prime Minister Abbott about the review, then being undertaken by his department, of Australia’s inter-country adoption arrangements. Specifically, I asked that same-sex couples be included in any potential reforms to be considered at the Council of Australian Governments (COAG) meeting scheduled for Friday 2 May (see original letter here: <https://alastairlawrie.net/2014/03/08/letter-to-prime-minister-abbott-re-inter-country-adoption-by-same-sex-couples/ )

I did not receive a response to my letter until after the COAG meeting (on Monday 5 May), although it was dated 1 May. The reply stated:

Dear Mr Lawrie

Thank you for your letter of 8 March 2014 to the Prime Minister regarding overseas adoption. I have been asked to reply on the Prime Minister’s behalf. I apologise for the delay in replying.

This is an issue that could benefit from attention at the highest levels of government. That’s what it will be getting between now and the next meeting of the Council of Australian Governments.

As you note, at present there is no consistency across Australia on whether same-sex couples can adopt a child. The requirements of foreign countries are also relevant, with most of Australia’s current partner countries not allowing adoption by same-sex couples.

The Commonwealth Government is committed to working with our state and territory colleagues and stakeholders in this area, including the non-government sector, to deliver reform.

Thank you for letting the Government know your views on this issue.

Yours sincerely

Name Withheld

Assistant Secretary

Which, it has said to be said, was a pretty underwhelming response, especially given the paucity of firm details or commitments. I also cracked a wry smile at the statement that the issue would be getting attention between now (ie the time of writing) and the next COAG meeting – which was held the following day.

In any event, the issue of inter-country adoption was discussed at COAG on Friday 2 May. The Prime Minister, and State Premiers and Territory Chief Ministers, agreed to the following in the official Communique:

Intercountry adoption of children

Adopting a child from overseas is an emotional and complex undertaking. Different requirements across Australia can create even more difficulty for families wanting to adopt a child from overseas.

COAG supports adoption conducted in the best interests of the child and consistent with the safeguards of the Hague Conventions.

COAG agreed in principle to the Commonwealth’s proposal to provide a new national intercountry adoption service for all Australians wanting to adopt a child from overseas.

Under the new service, the Commonwealth will fund either a new accredited non-government organisation or organisations, or a Commonwealth agency, to provide services for intercountry adoption by early 2015.

The Commonwealth and the States and Territories will work closely together to make sure there is a smooth transition to the new system.

So, some more detail (albeit only a little bit), but also some unanswered questions (including whether same-sex couples are to be included), as well as some new questions (if a non-government organisation contracted to provide inter-country adoption services was religious, could they refuse to provide those services to same-sex couples – but more on that particular issue later).

On the following Monday, 5 May, Prime Minister Abbott issued a Media Release, which revealed a little bit more:

REFORM AND ACTION ON INTERCOUNTRY ADOPTION

The Commonwealth Government is committed to adoption reform to enable more people to find families.

A new report has identified significant barriers facing Australian families wanting to adopt from overseas. Inconsistent rules, costs and the lengthy wait to adopt currently deter many people from even starting the adoption process.

Last Friday, COAG agreed to a national system for intercountry adoption. The Commonwealth will work vigorously with the States and Territories to have a new system operating by early 2015.

The report into intercountry adoption also recommended establishing new country programmes to help more Australian families to adopt. A new intercountry adoption programme between Australia and South Africa is now in place.

South Africa has a strong commitment to finding families within its borders to care for children in need. Where, for whatever reason, a South African family cannot be found, Australian families will be able to help provide permanent loving homes to South African children. Many of these children will have health needs, and would benefit from the caring environment that Australian families can provide.

The Government will introduce amendments to the Australian Citizenship Act so that obtaining Australian citizenship can happen in a child’s country of origin. As well, we will fix the problems associated with the visa system. It is too complicated at the moment and processing times are too long.

For too long children who legitimately need a safe and loving home and Australians who dream of providing this home have been hindered by red tape and confusion. The Government is pleased to be able to undertake real action to bring families together.

The accompanying Report of the Interdepartmental Committee on Intercountry Adoption provided some additional information (see link to report here: <http://www.dpmc.gov.au/publications/docs/idc_report_intercountry_adoption.pdf ), although undoubtedly would have provided more had pages 41 onwards, which contained Options for Reform and Recommendations to Government, not been deliberately withheld from the public.

The table on page 30 of the section of the Report that was released at least acknowledged that in four Australian jurisdictions – NSW, Western Australia, Tasmania and the ACT – adoption by same-sex couples is already legal.

On page 32, Table 11: Country of Origin Requirements then spelled out all the different countries where agreements exist, but which deem same-sex couples to be ineligible. Sadly, none of the countries listed currently permit inter-country adoption that does not discriminate on the basis of sexual orientation.

The discussion on page 31 helpfully (or should I say rather unhelpfully), noted that “[r]estrictions on same-sex couples adopting was raised by several submissions as a problem… [But] It seems that changes to these criteria would probably have limited impact on intercountry adoption given the country of origins’ criteria.”

Which is absolutely correct. But still does not answer the question of what would happen if Australia were to sign an inter-country agreement which did allow same-sex adoption (or even, as I suggested in my original letter, if Australia were to actively seek to include non-discrimination as a key clause in all of our inter-country agreements)?

And the media release, and accompanying IDC report, didn’t even address the most obvious question of all – given South Africa already allows same-sex couple adoption, and Prime Minister Abbott announced a new inter-country adoption program with South Africa, would Australian same-sex couples be able to adopt under that program?

The mainstream media didn’t appear to follow up on this question – although fortunately, Benjamin Riley of the Star Observer newspaper stepped into the breach to report the following:

SAME-SEX COUPLES INCLUDED IN OVERSEAS ADOPTION AGREEMENT FOR THE FIRST TIME

BEJAMIN RILEY – May 5, 2014

SAME-sex couples are included in Australia’s new agreement with South Africa on overseas adoption announced today by Prime Minister Tony Abbott, after being excluded from every previous intercountry adoption agreement between Australia and another country.

A spokesperson for the Department of Prime Minister and Cabinet told the Star Observer the agreement with South Africa is the first such arrangement with a country that allows same-sex couples to adopt children.

Although there is currently inconsistency across Australian states and territories around same-sex adoption, same-sex couples can legally adopt in NSW, ACT, Tasmania and Western Australia. However, until now this has been irrelevant due to the explicit exclusion of same-sex couples from Australia’s intercountry adoption agreements.

The Prime Minister announced the agreement with South Africa today along with a range of reforms to streamline the overseas adoption process, allowing children to obtain Australian citizenship in their country of origin, and simplify visa processes. These reforms have come out of a new report by the Interdepartmental Committee on Intercountry Adoption.

The Prime Minister’s office confirmed the eligibility of same-sex couples to adopt under the new agreement with South Africa, and told the Star Observer these reforms will consider inconsistencies between the states and territories on same-sex couples adopting.

“Current eligibility requirements vary across Australia via states and territory requirements. We will most be certainly considering this issue — together with other eligibility criteria — as we finalise the new national approach to intercountry adoption,” press secretary Sally Branson said.

“This just isn’t an issue for the home country of the adoptive parents — the requirements of overseas countries are also relevant. The South Africa agreement will allow for same sex couples to adopt.”

A Council of Australian Governments (COAG) meeting on Friday also flagged the development of a new national service for intercountry adoption by early-2105. The service would be either a funded non-government organisation or a Commonwealth agency.

The announcement prompted calls by the NSW Gay and Lesbian Rights lobby to ensure a new national framework would operate with equality for LGBTI people looking to adopt, and said the same should be true for any organisations assisting in the adoption process.

The Prime Minister’s office told the Star Observer there is no detail yet around how the national service would operate, but said the Federal Government would “ensure non-discriminatory service is provided to all stakeholders, and work with all stakeholders in a the same manner”.

Rodney Chiang-Cruise from Gay Dads Australia said the streamlined citizenship and visa processes wouldn’t change a great deal for Australian same-sex couples looking to adopt from overseas, but was glad the issue was being discussed.

“The Federal Government has not done anything on overseas adoption for decades… It sounds like a positive move, and hopefully it’s an indication of further moves in regards to what is a complex and difficult area,” Chiang-Cruise told the Star Observer [emphasis added, abridged]. Link to original article here: <http://www.starobserver.com.au/news/local-news/same-sex-couples-included-in-overseas-adoption-agreement-for-the-first-time/122370

As the article reports, this is a potentially significant breakthrough in terms of LGBTI equality – provided this agreement is implemented in line with state and territory requirements, for the first time ever, same-sex couples in NSW, WA, Tasmania and ACT will be treated equally in terms of overseas adoption.

However, the notes of caution expressed by Mr Chiang-Cruise also seem to be appropriate. After all, that still leaves LGBTI-inclusive couples in four Australian jurisdictions (Victoria, Queensland, South Australia and the Northern Territory) out in the cold.

And, as described earlier, there is genuine concern that, should a religious organisation be awarded the contract to deliver inter-country adoption services, they might discriminate against same-sex couples and then use the (incredibly broad) religious exemptions offered under the Sex Discrimination Act 1984 to essentially ‘get away with’ such discrimination.

Which means, while some questions have been resolved – and the South African agreement is indeed a big step forward for same-sex couple adoption in Australia – there are still plenty of issues to be worked through in coming months. It also means there was certainly plenty of material to write a follow-up letter to Prime Minister Abbott on this subject. As always, I will post any reply that I receive.

The Hon Tony Abbott MP

Prime Minister

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Thursday 29 May 2014

Dear Prime Minister

INTER-COUNTRY ADOPTION BY SAME-SEX COUPLES

Thank you for the reply, from your Department, to my letter of 8 March, concerning the issue of inter-country adoption by same-sex couples.

Unfortunately, some of the issues raised in my letter were not answered. Additional issues have also arisen from the Communique of the COAG meeting on Friday 2 May, and from your media release on Monday 5 May, which was accompanied by the release of some sections of the Report of the Interdepartmental Committee on Intercountry Adoption.

First of all, however, I wish to congratulate you on your commitment, as expressed by your office to the Star Observer newspaper on Monday 5 May, that same-sex couples will be eligible to adopt under the newly-finalised agreement with South Africa. This is a major step forward for the equal treatment of lesbian, gay, bisexual, transgender and intersex-inclusive families.

Nevertheless, as highlighted in my original letter, and confirmed in the Report of the Interdepartmental Committee, it is highly unlikely that, due to differing legislation, same-sex couples in Victoria, Queensland, South Australia and the Northern Territory will be able to take advantage of this new agreement.

This is obviously an unsatisfactory outcome – that arrangements entered into by the Commonwealth will only provide benefit to couples in Sydney, not Melbourne, Perth not Brisbane, and Hobart but not Adelaide.

I therefore reiterate my call that you should use the process of establishing new inter-country arrangements over the coming year to urge those states and territories that have not yet made adoption non-discriminatory on the basis of sexual orientation, gender identity or intersex status to finally do so.

Second, I wish to ask you about the proposal being considered that a non-government organisation may be funded to provide inter-country adoption services on behalf of the Commonwealth and states and territories. Specifically, if this organisation is itself, or is run by, a religious body, will you guarantee that they will not be able to deny these services to same-sex couples?

Again, it would be a deeply unsatisfactory outcome if, despite the successful inclusion of same-sex couples in formal arrangements between Australia and South Africa, these were undermined in practice because of the exemptions offered to religious organisations under the Sex Discrimination Act 1984.

Please ensure that whichever non-government organisation is funded to provide inter-country adoptions services on behalf of the Australian Government, and therefore the Australian people, they are legally bound not to discriminate on the basis of sexual orientation, gender identity or intersex status.

Third, and finally, I return to a point made in my initial correspondence and that is that I believe the Australian Government should be actively seeking to include non-discrimination clauses in all future inter-country adoption agreements. This stance should apply irrespective of whether the country is like South Africa, and itself already recognises same-sex adoption, or another country that does not.

I acknowledge that it may not be possible to secure the inclusion of such a clause in every single signed agreement – because it is dependent on the response of the other country – but I can see no reason why Australia should not be directly and firmly putting forward the principle that all couples are able to be loving and nurturing parents, irrespective of their sexual orientation, gender identity or intersex status.

Congratulations again on the inclusion of same-sex couples in the inter-country adoption agreement with South Africa.

I look forward to your response to the other matters raised in this correspondence.

Sincerely

Alastair Lawrie

Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

Posted on April 24, 2014 by Alastair Lawrie

The following is my submission to the Attorney-General’s Department’s Review of the Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft (aka the Bill to significantly limit the scope of racial vilification protections under the Racial Discrimination Act 1975).

Submissions close on Wednesday 30 April, and more details can be found here: <http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx

I strongly encourage you to make a submission, and include in it the call for the Commonwealth to focus on expanding protections for the benefit of all lesbian, gay, bisexual, transgender and intersex Australians, rather than limiting the operation of s18C for one Melbourne-based News Ltd columnist. Thanks.

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit

BARTON ACT 2600

s18cconsultation@ag.gov.au

Thursday 24 April 2014

To whom it may concern,

SUBMISSION ON RACIAL VILIFICATION AMENDMENTS

Thank you for the opportunity to make a submission on the proposed changes to the racial vilification provisions of the Racial Discrimination Act 1975, as contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

For the reasons explained below, I do not support the replacement of existing sections 18B, 18C, 18D and 18E with the new clauses of the Exposure Draft Bill.

However, I do believe that significant changes should be made to vilification provisions in Commonwealth law: namely, that vilification protections should be expanded to cover sexual orientation, gender identity and intersex status.

The absence of such protections leaves lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians vulnerable to the same types of adverse public conduct experienced by people of different racial backgrounds, but without recourse to the same complaint resolution mechanisms.

I will now turn to these two issues – the proposed reforms, and the case for introducing LGBTI vilification protections – in more detail.

Proposed Reforms to Section 18C

In considering any potential reforms to section 18C of the Racial Discrimination Act 1975, it is useful to start at the particular sub-section which features in most debate. Sub-section 18C(1)(a) makes it “unlawful for a person to do 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.”

I am of the view that the drafting of this sub-section is probably not ideal, and, arguably, is too broad in terms of the types of conduct that at least theoretically could be captured. I do not believe that, were provisions regarding racial vilification to be drafted today, they would include the terms ‘offend’ or ‘insult’ (or at least not without aggravating factors or considerations).

However, it is one thing to suggest that the drafting of a provision is something less than ‘ideal’ – it is another to suggest that poor drafting has directly caused problems that mean it must be amended. And even if that test is satisfied, any proposed reforms to the law should be an improvement, and not worsen any potential harm.

Turning to the question of whether the drafting of section 18C has directly led to, or caused, any significant problems, I am not convinced that it has. Racial vilification protections under the Racial Discrimination Act 1975 appear to be widely supported by the community, and, for the most part, appear to be working well, both with the oversight of the Australian Human Rights Commission and in the Courts.

There is, of course, one case which is frequently cited as necessitating change to section 18C, and its related provisions, and that is the case of Eatock v Bolt [2011] FCA 1103.

Even ignoring the old legal maxim that hard cases make bad law (“Hard cases, it has frequently been observed, are apt to introduce bad law”, from Judge Rolfe in Winterbottom v Wright in 1842), it is not clear that the outcome of the “Bolt case” makes any persuasive case for change.

In the summary of that decision, Justice Mordecai Bromberg explained that “I am satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the newspaper articles” of Mr Bolt (para 17).

Justice Bromberg also explained that Mr Bolt’s conduct could not fit within what are, to be frank, extremely generous exemptions in section 18D, writing that “I have not been satisfied that the offensive conduct that I have found occurred, is exempted from unlawfulness by section 18D. The reasons for that conclusion have to do with the manner in which the articles were written, including that they contained errors of fact, distortions of the truth and inflammatory and provocative language” (para 23, emphasis added).

In his summary, Justice Bromberg also articulates at least one of the reasons why laws should exist to prohibit writings such as those of Mr Bolt: “People should be free to fully identify with their race without fear of public disdain or loss of esteem for so identifying. Disparagement directed at the legitimacy of the racial identification of a group of people is likely to be destructive of racial tolerance, just as disparagement directed at the real or imagined practices or traits of those people is also destructive of racial tolerance” (para 22).

In short, there appears to at least be an arguable case that not only was the “Bolt case” decided correctly on the existing law, but also that the current provisions are operating as intended to limit the negative effects of racial intolerance. Conversely, I believe it is difficult to argue, solely on the basis of Eatock v Bolt, that section 18C is so deficient that it should be amended, and amended as a matter of high priority.

Even if the argument that change was, indeed, necessary was accepted, I do not support that changes proposed in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

I believe that the replacement of ‘offend, insult, humiliate or intimidate’ with to vilify (defined as “to incite hatred against a person or a group of persons”) or to intimidate (meaning “to cause fear of physical harm; to a person; to the property of a person; or to the members of a group of persons”), would arbitrarily and unduly limit the effectiveness of these protections.

I agree with the Australian Human Rights Commission, in their statement of Tuesday 25 March 2014, that: “the bill reduces the level of protection by providing a narrow definition of vilification and by limiting intimidation to causing fear of physical harm. It is not clear why intimidation should not include the psychological and emotional damage that can be caused by racial abuse.”

I also agree with the Australian Human Rights Commission in their concerns about the breadth of the exemptions proposed in new clause (4). As the Commission notes “[t]his provision is so broad it is difficult to see any circumstances in public that these protections would apply.”

This is at least in part because the previous limitations of section 18D – that words or conduct must be done “reasonably and good faith” to be exempted – have been removed, again without a clear explanation or motivation. In my opinion, the proposals contained in the Exposure Draft Bill would not improve the operation of racial vilification protections generally, but instead have the capacity to make things substantially worse.

Overall, while I concede that the current drafting of section 18C is not ‘ideal’, I do not believe that there are sufficient problems in practice for it to be amended. I also strongly oppose the replacement of sections 18B, 18C, 18D and 18E of the current Racial Discrimination Act 1975, with the clauses contained in the Freedom of speech (repeal of s.18C) Bill 2014 Exposure Draft.

Recommendation 1. The Freedom of speech (repeal of s.18C) Bill 2014 – Exposure Draft should not be introduced into or passed by the Commonwealth Parliament.

Need to expand vilification protections to cover sexual orientation, gender identity and intersex status

While I do not believe a case has been made to reform the racial vilification provisions of the Racial Discrimination Act 1975, I do believe there is a strong case for expanding vilification provisions under Commonwealth law to offer additional protection to LGBTI Australians.

In a similar way to their ongoing problems with race, some extreme elements within Australian society continue to demonstrate their difficulty in accepting people, and treating them equally, irrespective of sexual orientation, gender identity or intersex status.

Both groups – Australians of diverse racial backgrounds, and LGBTI people – are regularly subject to vilification in public contexts, whether that be in political or media debates, or in harassment and abuse in public spaces.

Significantly, while LGBTI Australians finally achieved anti-discrimination protections under Commonwealth law in 2013 (a mere 38 years after the passage of the Racial Discrimination Act), the Sex Discrimination Act amendments did not include protections from homophobic, biphobic, transphobic and anti-intersex vilification. Unlike people of diverse races, LGBTI people still cannot launch complaints about vilification under Commonwealth law.

There is no philosophical or conceptual reason why this should be the case – both are vulnerable groups, subject to vilification against which they deserve to be protected.

The vilification of LGBTI people can take many forms. A 2003 NSW Attorney-General’s Report found that, in the previous 12 months, 56% of gay men and lesbians had been subject to one or more forms of homophobic abuse, harassment or violence.

This violence can also be extreme – as demonstrated by the disturbingly high number of gay men violently murdered in Sydney during the 1980s and 1990s, but whose tragic deaths are only now being properly investigated.

In terms of vilification in public debate, there are almost too many examples of homophobia, biphobia, transphobia and anti-intersex discrimination to choose from (and certainly enough to hold an annual event ‘celebrating’ the worst of these comments in a range of different areas of public life, aka The GLORIAs).

One notorious example from recent years was the homophobic comment of a religious figure, addressing a ‘National Marriage Day’ rally outside Parliament House in 2012, who said “I’m convinced that homosexuals (re)produces (sic) themselves by molesting children.”

Unfortunately, heading inside Parliament House, the tenor of public debate is sometimes not much better. Over the past 12 years we have seen Senators argue that allowing two men or two women to marry could lead to humans having sex with animals, arguing that enacting marriage equality would potentially result in another ‘Stolen Generations’, and abusing parliamentary privilege to smear an openly-gay High Court Justice with unfounded allegations of paedophilia (apparently solely because of his homosexuality).

This is not to say that all, or even any, of those comments would necessarily qualify as vilification under an equivalent provision to section 18C, but, the fact those comments are able to be made in our National Parliament provides a small insight into the type of abuse and vitriol which continues in other forums, day-in, day-out, which are not subject to the same levels of scrutiny.

That includes street-level harassment and abuse which my fiancé Steven and I, like many thousands of other LGBTI Australians, experience all-too-frequently. Anyone who is ‘visibly’ identifiable as lesbian, gay, bisexual, transgender or intersex, including non-LGBTI people who are perceived as being LGBTI by others, and anyone who simply wants to engage in the tender act of holding one’s same-sex partner’s hand, knows the risks that being or expressing who you are in public can bring, from being yelled at from passing cars, to the very real threat of much, much worse.

Of course, the introduction of s18C-style protections on the basis of sexual orientation, gender identity and intersex status will not automatically lead to a reduction in such abuse, but it will allow for people to contest the most egregious examples of homophobic, biphobic, transphobic and anti-intersex vilification in public life.

Over time, the introduction of vilification protections for LGBTI Australians, on top of the recently passed anti-discrimination laws, would help to send a strong signal to the wider community that such conduct was no longer tolerated.

The impetus for sending such a signal can be found in figures which show that lesbian, gay, bisexual, transgender and intersex Australians continue to experience disproportionately high rates of mental health issues, including depression, attempted suicide and suicide.

This problem is especially pronounced amongst younger LGBTI people, with young same-sex attracted people estimated to be 6 times more likely to attempt suicide than their heterosexual counterparts (source: National LGBTI Health Alliance). Young people’s experience of discrimination and homophobia has been found to play a key role in this huge, and sadly persisting, health disparity.

Not only is public vilification in the form of homophobia, biphobia, transphobia and anti-intersex discrimination wrong in and of itself, it has serious consequences, including in negative mental health outcomes for LGBTI people.

I believe that anti-LGBTI vilification must be prohibited under the Sex Discrimination Act, in the same way that racial vilification was in 1995 when the Racial Hatred Act amended the Racial Discrimination Act, and that it should be done as soon as possible.

Recommendation 2. The Sex Discrimination Act 1984 should be amended to prohibit vilification on the basis of sexual orientation, gender identity and intersex status.

Obviously, there are other potential attributes which could also be aided by the introduction of vilification protections, including those grounds which already have Commonwealth anti-discrimination laws (sex, disability and age), but, as I am not an expert in any of those issues, I am not in a position to argue for or against their inclusion in this submission.

Nevertheless, I strongly believe that these questions – whether vilification protections should be expanded, and which additional groups they should cover – are the ones which should be occupying the mind of our Commonwealth Attorney-General, and indeed all MPs, rather than working out how to restrict the protections offered by the racial vilification provisions contained in the Racial Discrimination Act 1975.

I sincerely hope that this submission assists in helping to turn that conversation around, and that we, as a community, start to focus on enhancing instead of undermining human rights.

Thank you for taking these comments into consideration. Should you require clarification or further information, I can be contacted at the details below.

Sincerely,

Alastair Lawrie

The last major battle for gay & lesbian legal equality in Australia won’t be about marriage

Posted on February 26, 2014 by Alastair Lawrie

[Updated March 4th 2015]

This Saturday, the 37^th annual Sydney Gay & Lesbian Mardi Gras Parade will work its way up Oxford St with its now traditional mix of politics, colour and movement, and above all, pride. Pride in who we are, pride in our community, and pride in what we have managed to achieve.

Because life is unarguably better for the vast majority of Australia’s lesbian, gay, bisexual, transgender and intersex (LGBTI) population in 2015 than it has ever been before. And that indeed is something to be proud about.

Following the first Mardi Gras on 24 June 1978, many of the barriers to legal equality have been removed. NSW passed anti-discrimination laws in 1982, followed by the decriminalisation of gay sex in 1984. Same-sex couples have since achieved de facto relationship recognition, and there is now equal access to assisted reproductive technology and adoption in most Australian jurisdictions.

It is likely that one area where legal rights have yet to be achieved will, once again, be the dominant theme of many of the more politically-oriented floats in this year’s parade – the Australian Parliament’s ongoing refusal to recognise marriage equality between all couples.

As someone who is engaged to be married, and who has been for more than four years but is currently prohibited from doing so, I understand why marriage equality is an issue which arouses such intense passion, and an admirable level of commitment from many activists around Australia.

But marriage equality is also something which most of us know is probably, some might say almost inevitably, going to be achieved at some point in the next five, at most 10, years.

When that day comes, when the first couples legally married under federal law have shared their vows and celebrated their commitments to each other in front of their families and friends, there will still be a major outstanding issue of legal inequality confronting lesbian, gay, bisexual and transgender (LGBT) Australians.

It appears just as inevitable that, long after those couples dance their waltzes and cut their wedding cakes, the anti-discrimination protections which are offered to LGBT Australians under most state and federal laws will continue to be seriously undermined by the wide-ranging exceptions which are offered to religious organisations (NB Intersex is not included here because religious exemptions under the Commonwealth Sex Discrimination Act 1984 do not apply on those grounds).

These exceptions allow religious schools to actively discriminate against LGBT teachers and students. Religious hospitals and community welfare organisations can utilise these loopholes to discriminate against LGBT employees, as well as patients and clients. And, while the historic federal reforms passed via the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 do not allow religious-operated aged care facilities to discriminate against LGBT people accessing their services, LGBT people can still be denied employment in those facilities simply because of who they are.

All of these services – education and health, community welfare and aged care – are located firmly and squarely in the public sphere, and address some of the most fundamental human needs in life. It is these same characteristics, that they are public services meeting public needs, that are used to justify the substantial amounts of public funding which subsidise the religious organisations running them, money which comes from all taxpayers, religious and non-religious, LGBTI and non-LGBTI alike.

Yet, despite operating in the public sphere, almost always using public money, these organisations are granted exceptions from the same legal obligations that are imposed on any other group, namely the responsibility not to discriminate on the basis of sexual orientation and gender identity.

The justification for these ‘special rights’? Basically, that the ability to discriminate against lesbian, gay, bisexual and transgender people is so fundamental to the exercise of religious freedom that it cannot be limited.

Note that we are not here talking about who is appointed as office-holders, including ministers, within a religion itself, what a particular religion may or may not believe in terms of morality, how religious ceremonies are undertaken, or even who can attend a religious ceremony. These are things that are central to religious freedom, and most people would not advocate the imposition of limits on the ability of religious organisations to discriminate in these areas.

Instead, some religious organisations (and we must say some, because not all groups hold these views) believe that they should have the right to fire a gay teacher, to expel a bisexual school student, to refuse to employ a lesbian aged care worker, or to deny services to someone who is transgender, even when all of the above is clearly done in the public sphere.

This is a much more substantive denial of rights than simply being denied access to marriage rites. Religious exceptions to anti-discrimination laws can affect LGBT people in multiple areas of their lives, including times and places when they are at their most vulnerable. In practical terms, I believe it is religious exceptions and not marriage inequality that is the biggest battle left to be won for full gay and lesbian legal equality.

It is also a battle that looks set to be fought more ferociously than that over marriage equality. Some of the largest religious organisations in the country don’t just support these exceptions, they are prepared to wage cultural war to defend them.

The Wesley Mission recently spent eight years, and went all the way to the NSW Court of Appeal, defending their right to deny allowing a male same-sex couple to become foster carers to children in need. Wesley did so on the basis that: “[t]he biblical teaching on human sexuality makes it clear that monogamous heterosexual partnership within marriage is both the norm and ideal” (OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293 (10 December 2010).

Further, they submitted that: “Wesley Mission’s tradition views a monogamous heterosexual partnership in marriage as the ideal family role model for the vulnerable and sometimes damaged children we foster. Other understandings fall short of that norm.” And finally that “[t]he proposition that we should provide a framework for children to be cared for and nurtured within the context of a homosexual lifestyle is fundamentally unacceptable to our evangelical teaching and practice.”

The irony, some might say hypocrisy, of these statements is that, in the same case, Wesley Mission admitted that single people could themselves become foster carers through their service. Apparently they believed that two dads or two mums had less to offer foster children than one.

The net effect of the Wesley Mission case was to provide judicial confirmation of the breadth of the religious exceptions offered under section 56(d) of the NSW Anti-Discrimination Act 1977. That section reads: “[n]othing in this Act affects: any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

In short, if you are lesbian, gay, bisexual or transgender, then you have no legal right or expectation to be treated fairly and without discrimination by a religious employer, or religious-operated service, in NSW.

It is no surprise then that, when the Federal Parliament was considering the Exposure Draft Human Rights and Anti-Discrimination (HRAD) Bill 2012, the precursor of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, key NSW religious organisations would argue for religious exceptions to be established in Commonwealth law, too.

What is perhaps surprising is that some churches made submissions to the Senate inquiry considering the HRAD Bill that these exceptions do not go far enough.

The Standing Committee of the Synod of the Anglican Church Diocese of Sydney, and the Catholic Archdiocese of Sydney (including the Diocese of Parramatta and the Catholic Education Commission of NSW), both argued that the concept of exceptions was problematic, and that the right to discriminate against LGBT people should instead be re-contextualised as a positive right.

From the Anglican submission: “[w]hile exceptions are necessary, casting the protection of these rights in a wholly negative manner, in the form of ‘exceptions’, does not do justice to their importance. It suggests they are merely to be tolerated rather than positively recognised and upheld as legitimate and important in themselves.”

Meanwhile, in a ‘Diedre Chambers’ style coincidence, the Catholic submission also wrote: “the terminology of “exceptions” is problematic and fails to acknowledge that the right of freedom of religion is a fundamental human right, which the Commonwealth government is obliged to protect under international law. In our view, the terminology of “exceptions” should be replaced with the terminology of “protections”. Using the terminology of “protections” would recognise that conduct which is deemed not to be unlawful because it is covered by an exception related to religion is in fact lawful because it accords with the fundamental human right of freedom of religion” [emphasis in original].

Both submissions also go further than concerns surrounding terminology to argue that the exceptions which are offered to religious organisations should also be available to individuals – that is, that their personal beliefs should allow them to discriminate, even in their professional lives and when not working for a religious organisation.

For example, the Anglican submission recommended that “[a]n employee should not be required by their employer to undertake particular tasks or provide services in a particular context that are contrary to the employee’s genuinely held religious convictions where this is reasonable.”

Thankfully, that style of exception, which is located somewhere on the bottom half of the slippery slope down to the abhorrent type of laws currently attracting controversy in several US states, was not included in the final Commonwealth legislation. But in making that submission, the Anglican Church of Sydney has made clear the direction it wants anti-discrimination, or more accurately, pro-discrimination, laws to head [As an aside, if it had been passed then, when marriage equality does eventually become a reality, such provisions would have allowed individual employees to refuse to sell wedding cakes, or serve as wedding photographers, merely because of the sexual orientation and/or gender identities of the couples involved].

And they will fight equally hard to ensure that the current framework of exceptions applies in as many contexts as possible. The eventual removal of these exceptions in terms of people accessing aged care services was strongly resisted from some religious bodies, even if their arguments for doing so were quite weak (the Anglican submission on the HRAD Bill suggested that “[i]t may be unsettling to these communities to have residents who do not share their beliefs, values and ethos facility on matters of sexual practice”).

They have been more successful in fighting against recent proposed changes to NSW law that were simply attempting to remove the right of religious and other private schools to discriminate against gay, lesbian and transgender students (NB Bisexuality is shamefully still not a protected attribute in the NSW Anti-Discrimination Act 1977). Alex Greenwich’s amendments are currently on hold, at least in part because of the influence of the two major churches in the Parliament.

As we have seen, some religious organisations have demonstrated over the past 10 years that they are prepared to fight, by whatever means necessary (through the courts, in parliamentary inquiries, by lobbying parliamentarians directly and in public debate) to maintain and even extend the reach of these exceptions.

While this may seem to some like a theoretical (or even theological) debate, they are not doing so because they want the law to recognise abstract rights – they are engaged in this battle because they want the retain the ability to actively discriminate against LGBT people in real life.

Sadly, there are too many stories of this happening, of religious exceptions causing real-world harm to LGBT people. In the lead-up to Mr Greenwich’s Bill being introduced, several lesbian and gay students came forward with stories of being sent to the counsellor’s office for being “sick” (that is, for being gay), of being called disgusting and a disgrace – by a teacher no less – and threatened with exclusion from senior school, and of being told not to talk about their sexuality in addition to being excluded from school events (source: “Discrimination has no place in schools” Alex Greenwich, Sydney Morning Herald, 19 September, 2013).

Not forgetting the recent incident where the Sacred Heart Primary School at Broken Hill, which falls within the Wilcannia-Forbes Catholic Diocese, rejected a young girl’s kindergarten application simply because her parents were two women (source: “Same-sex enrolment row prompts call for law change”, ABC News Online, 15 December 2011).

Of course, these are just some of the stories that we are aware about. Most people who are discriminated against by religious organisations, either directly or indirectly, do not speak up, because they are aware that the discriminatory actions of those bodies are entirely lawful, or because they fear retribution from those organisations if they do so.

Which brings me back to the Mardi Gras Parade. While for many of us the decision to participate on Saturday is an easy one, choosing to celebrate pride in who we are and as part of our community, for others the decision whether to be visible or not in this manner can be significantly more complicated.

For people already engaged with religious organisations in different ways, or whose profession may involve applying for jobs with them (for example, more than a third of schools in Australia are religious, an even higher proportion amongst secondary schools), choosing to be ‘out’ through Mardi Gras can have serious repercussions.

Some people can and do have a legitimate fear that being identified as lesbian, gay, bisexual or transgender could result in them being fired, or being refused employment in the first place, in being expelled from school (or seriously mistreated while there), or being denied necessary services. Neither state nor federal anti-discrimination law would currently protect them in these circumstances.

In this respect, despite all of the progress in law reform since the first Mardi Gras parade was held back in 1978, there is still an incredibly long way to go. That is one of the reasons why we must ensure that Mardi Gras, as well as being a celebration of pride, also continues to serve its role as a political protest.

It is also why me must continue to campaign for equality, and to fight for our rights, including the right not to be discriminated against. Given the scale of the challenge involved in removing these unjust religious exceptions, and how hard (some) religious organisations will struggle to retain them (and therefore to maintain their position of privilege in society), we should be aware that it is not a fight that we will win in months. It will take several years, at least – if not decades.

But it is a battle we must wage nonetheless. Because, if LGBT Australians are ever to be truly equal under the law, then the special exceptions granted to religious organisations under Commonwealth, state and territory laws must end.

Explanatory notes: I have attempted to be clear in this post about when I am speaking about gay and lesbian, or LGBT, or LGBTI, because sometimes the law affects these groups in different ways (and please accept my apologies if I have made some errors in this respect). For example, removing religious exceptions cannot be the last major battle for bisexual legal equality – especially if they are not included in the NSW Anti-Discrimination Act in the first place.

Equally, I am not in a position to argue that religious exceptions are the biggest legal issue confronting transgender Australians when uniform positive recognition of gender identity is not yet a reality. And, while intersex people are not subject to religious exceptions under the Sex Discrimination Act, I also wouldn’t describe this issue as more important than banning involuntary medical sterilisation, something I have written about previously (see link: https://alastairlawrie.net/2013/12/25/no-3-senate-report-on-involuntary-or-coerced-sterilisation-of-intersex-people-in-australia/).

Finally, while I wrote in the second paragraph that, for the vast majority of LGBTI Australians, life is unarguably better than it has ever been before, I do not wish to underestimate the ongoing problems of mental illness, depression and suicide which affect many young LGBTI people, or indeed the plight of LGBTI asylum-seekers, who Australia continues to send to Nauru and Manus Island, PNG, for ‘processing and resettlement’.

One (more) final thing: if you liked this post, please consider sharing. Thanks, Alastair

No Homophobia, No Exceptions

Posted on February 7, 2014 by Alastair Lawrie

During the week, the NSW Gay & Lesbian Rights Lobby (which I am involved in as the Policy Working Group Chair), launched its No Homophobia, No Exceptions campaign, calling for the removal of religious exceptions to LGBTI anti-discrimination protections contained in the Commonwealth Sex Discrimination Act 1984 and the NSW Anti-Discrimination Act 1977.

This is an incredibly important campaign, given these exceptions will possibly be the last barriers to full LGBTI equality in Australia to fall, and a campaign which I am very proud to be involved in.

Now, while this blog, and the posts which I put up here, only ever reflect my personal views on things (ie in this blog I do not speak on behalf of the GLRL, or any other organisation), I would like to take the opportunity to put up a link to two other pages which form key parts of the No Homophobia, No Exceptions campaign.

The first is an op-ed I wrote for the Star Observer newspaper, outlining the reasons for the campaign, and calling for the LGBTI community to get involved. Link here: <http://www.starobserver.com.au/opinion/soapbox-opinion/no-homophobia-no-exceptions/117476

The second link is to a Change.org petition which asks people to support the campaign, by calling on Commonwealth Attorney-General, Senator the Hon George Brandis, and NSW Attorney-General, The Hon Greg Smith MP, to repeal these provisions.

If you support the campaign, and the principle that all people deserve to be treated equally in all areas of public life, irrespective of sexual orientation, gender identity or intersex status, then I strongly encourage you to sign. Link here: http://www.change.org/en-AU/petitions/senator-hon-george-brandis-remove-religious-exceptions-from-anti-discrimination-laws

Thanks.

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

Tag Archives: Sex Discrimination Act 1984

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

Submission re Australian Law Reform Commission Freedoms Inquiry Interim Report

Submission on NHMRC Review of Ethical Guidelines for Assisted Reproductive Technology Stage 2

Submission to Australian Law Reform Commission Traditional Rights and Freedoms Inquiry

Senator Leyonhjelm’s Marriage Equality Bill undermines the principle of LGBTI anti-discrimination. Should we still support it?

Submission to Rights & Responsibilities 2014 Consultation

Letter to Prime Minister Abbott re Intercountry Adoption by Same-Sex Couples Part 2

Don’t Limit Racial Vilification Protections, Add Vilification Protections for LGBTI Australians

The last major battle for gay & lesbian legal equality in Australia won’t be about marriage

No Homophobia, No Exceptions