Questions for MPs and Candidates During Sydney Gay & Lesbian Mardi Gras

Today is the official launch of Sydney Gay & Lesbian Mardi Gras, with a large and diverse festival leading up to the 37th official Mardi Gras Parade on Saturday March 7th 2015.

In recent years, as mainstream acceptance of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community has grown, so too has the tendency of politicians, and would-be politicians, to appear at Mardi Gras events as a way of engaging with, and directly appealing to, LGBTI voters.

This year, Sydney Gay & Lesbian Mardi Gras overlaps with the campaign for the NSW State Election, to be held on Saturday March 28th, meaning there will likely be more Members of Parliament and candidates around than ever, trying ever-so-hard to convince us to vote for them.

Which is our opportunity to make them work (or should that be ‘werk’) for it. If MPs and candidates are going to come to our festival, then they should be made to respond to our questions (and it is our responsibility to tell them if and when their answers just aren’t good enough).

Of course, there are lots of different topics we could raise, but one issue which I would like to hear about is what each candidate – and political party – is going to do to fix the NSW Anti-Discrimination Act 1977, which now holds the dubious ‘honour’ of being the worst LGBTI anti-discrimination law in the country.

To start with, it only offers anti-discrimination protections to three of the five letters of the rainbow alphabet: lesbian, gay and transgender people.

That’s right, despite featuring the first gay anti-discrimination protections enacted in Australia (passed in 1982, so early in fact that it preceded the decriminalisation of male homosexuality in NSW by two years), the Anti-Discrimination Act has never formally protected bisexual people from discrimination[1].

All other Australian states and territories, and the Commonwealth, protect bisexuals, either specifically, or as part of ‘sexual orientation’. This ongoing exclusion from the NSW anti-discrimination scheme is nothing short of appalling.

The exclusion of intersex people, while perhaps more understandable – given the first explicit intersex anti-discrimination protections in the world were introduced in the Commonwealth’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 less than two years ago (and only Tasmania has since followed suit) – is no less unacceptable.

The NSW Anti-Discrimination Act 1977 also has the broadest religious exceptions in the nation. Sub-section 56(d) effectively gives religious organisations carte blanche to actively discriminate against lesbian, gay and transgender people across most areas of public life.

Sub-section 56(d) states that “[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”.

That protects pretty much any action that a religious healthcare provider, community service, or school, might wish to take against LG&T employees, or people accessing those services, in this state.

Not that religious schools even need to rely on sub-section 56(d). In two of the most offensive provisions in Australian law today (not just anti-discrimination law, but any law), under the Anti-Discrimination Act all private schools in NSW (yes, even the non-religious ones) can explicitly refuse to enrol, can enrol under different conditions, and can expel, students solely because they are lesbian, gay or transgender.

These provisions are so utterly awful that they bear quoting in full:

Section 49ZO Education

  • It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality:
    1. By refusing or failing to accept the person’s application for admission as a student, or
    2. In the terms on which it is prepared to admit the person as a student.
  • It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality:
    1. By denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
    2. By expelling the student or subjecting the student to any other detriment
  • Nothing in this section applies to or in respect of a private educational authority.” [emphasis added]

AND

Section 38K Education

  • It is unlawful for an educational authority to discriminate against a person on transgender grounds:
    1. By refusing or failing to accept the person’s application for admission as a student, or
    2. In the terms on which it is prepared to admit the person as a student.
  • It is unlawful for an educational authority to discriminate against a student on transgender grounds:
    1. By denying the student access, or limiting the student’s access, to any benefit provided by the educational authority, or
    2. By expelling the student or subjecting the student to any other detriment.
  • Nothing in this section applies to or in respect of a private educational authority.” [emphasis added]

There is absolutely no justification for this type of sexual orientation and gender identity segregation in our schools, in any schools. And we should challenge any MP or candidate who comes along to Mardi Gras and attempts to defend it.

The anti-vilification protections of the NSW Anti-Discrimination Act 1977 are only slightly less bad. On the positive side, NSW is one of only four jurisdictions in the country to have some form of anti-vilification laws covering our community – and that is certainly better than the Commonwealth, which has section 18C of the Racial Discrimination Act 1975 for racial vilification, but no LGBTI equivalent.

On the negative side, as with anti-discrimination, NSW legislation only protects against lesbian, gay and transgender vilification, and does not extend to vilification against bisexuals or intersex people.

Meanwhile, on the you’ve-got-to-be-kidding side (or, less politely, the WTF?-side), did you know that the maximum fine which an individual can receive for the offences of homosexual[2] or transgender[3] vilification is actually only one-fifth of the maximum individual fine for racial[4] vilification?

How on earth did anyone ever think that such a distinction – for offences which otherwise have exactly the same wording – was appropriate? More importantly, isn’t anyone who defends such a distinction in effect saying that vilifying lesbian, gay and transgender people is less offensive (perhaps even only one-fifth as bad) than vilifying people on the basis of race?

As you can see, there are many things distinctly wrong with the Anti-Discrimination Act 1997. As a consequence, there are many questions to ask Members of Parliament and candidates who attend Mardi Gras events over the next fortnight-and-a-bit.

And we should be asking those questions, not just at the LGBTI State Election Forum on Wednesday February 25th (details here: http://www.acon.org.au/about-acon/Newsroom/Media-Releases/2014/130 and free tickets here: http://www.eventbrite.com.au/e/nsw-state-election-forum-2015-tickets-15400759085) but also at Mardi Gras Fair Day on Sunday February 22nd, at the Parade on Saturday March 7th (asking them in the Parade marshalling area is probably your best bet), and at any other event at which they hold out a leaflet or put up a corflute.

To assist, I have attempted to summarise the above criticisms of the NSW Anti-Discrimination Act 1977 in the following six questions. Please feel free to use them whenever an MP or candidate might raise their heads during Mardi Gras (or in the run-up to polling day itself):

  1. Will you amend the Anti-Discrimination Act 1977 to protect bisexual and intersex people from discrimination?

 

  1. Will you repeal sub-section 56(d) of the Anti-Discrimination 1977 which currently grants the broadest religious exceptions to anti-discrimination laws in the country?

 

  1. Will you repeal sections 49ZO and 38K of the Anti-Discrimination Act 1977 which allow all private schools and colleges the right to refuse enrolment of, impose special conditions on or expel lesbian, gay and transgender students?

 

  1. Will you amend the Anti-Discrimination Act 1977 to protect bisexual and intersex people from vilification?

 

  1. Will you amend the Anti-Discrimination Act 1977 to harmonise the penalties for vilification, rather than having a higher penalty for racial vilification than homosexual or transgender vilification? And

 

  1. If you are unable to make the above commitments, will you at least agree to conduct a review of the Anti-Discrimination Act 1977, which is now the most out-dated and worst LGBTI anti-discrimination law in Australia?

These are the questions which I would like answered during Sydney Gay & Lesbian Mardi Gras. I wonder which MPs and candidates are going to ‘come to the party’ (so to speak) by supporting better anti-discrimination laws for the entire LGBTI community.

"Religious exceptions are this wide." Actually, Premier Baird, they're a lot wider than that. Time to repeal sub-section 56(d) of the NSW Anti-Discrimination Act 1977.

“Religious exceptions are this wide.” Actually, Premier Baird, they’re a lot wider than that. Time to repeal sub-section 56(d) of the  Anti-Discrimination Act 1977.

After much contemplation, Opposition Leader Luke Foley this week finally joined the 21st century by supporting marriage equality. Will he also support a 21st century Anti-Discrimination Act?

After much contemplation, Opposition Leader Luke Foley this week finally joined the 21st century by supporting marriage equality. Will he also support a 21st century Anti-Discrimination Act?

Finally, if you manage to secure a response from MPs or candidates on these questions during Sydney Gay & Lesbian Mardi Gras, whether that response is negative or positive, please leave their answers in the comments section below.

And, if you want to raise them directly with some of the relevant decision-makers, here are some people you might wish to contact:

Liberals

Premier Mike Baird

Email https://www.nsw.gov.au/your-government/contact-premier-new-south-wales

Phone 02 8574 5000

Twitter https://twitter.com/mikebairdMP

Attorney-General Brad Hazzard

Email office@hazzard.minister.gov.au

Phone 02 8574 6000

Twitter https://twitter.com/BradHazzard

Labor

Opposition Leader Luke Foley

Email leader.opposition@parliament.nsw.gov.au

Phone 02 9230 2310

Twitter https://twitter.com/Luke_FoleyNSW

Shadow Attorney-General Paul Lynch

Email ElectorateOffice.Liverpool@parliament.nsw.gov.au

Phone 02 9602 0040

Greens

Attorney-General Portfolio Spokesperson David Shoebridge

Email david.shoebridge@parliament.nsw.gov.au

Phone 02 9230 3030

Twitter https://twitter.com/ShoebridgeMLC

[1] Section 49ZG refers to discrimination on the basis of ‘homosexuality’, with ‘homosexual’ defined in section 4 as ‘homosexual means male or female homosexual’.

[2] Section 49ZTA sets the maximum individual punishment for serious homosexual vilification at 10 penalty units, or imprisonment for 6 months, or both.

[3] Section 38T provides that the maximum individual punishment for serious transgender vilification is 10 penalty units, or imprisonment for 6 months, or both.

[4] Section 20D establishes the maximum individual punishment for serious racial vilification: 50 penalty units, or imprisonment for 6 months, or both.

13 Highs & Lows of 2013: No 13 (Alleged) Police Brutality at Sydney Mardi Gras

As I did last year, I am going to end the year by writing about the highlights – and lowlights – of the last 12 months. As always, choosing the best and worst of the year is a subjective process, and reflects my own experiences as a cis-gender gay man, who engages in LGBTI advocacy, in Sydney. But I hope that the list I have selected is reflective of some of the major issues of 2013, at least in Australia anyway. If not, please feel free to tell me why I’m wrong in the comments section below.

No 13. (Alleged) Police Brutality at Sydney Mardi Gras

Let’s begin by remembering one of the true low-points of this year – the (alleged) actions of NSW Police officers which marred Australia’s, and one of the world’s, premier LGBTI events, the Sydney Mardi Gras, in February and March.

As we approach the end of the year, almost 2 million people, from right around the world, have watched the Youtube clip of the way Police officers treated Jamie Jackson on Oxford St on the night of the Mardi Gras Parade. (http://www.youtube.com/watch?v=wxtFtVfAeeE)

Jamie Jackson Mardi Gras

Others have read about the way long-term LGBTI activist Bryn Hutchinson was (allegedly) treated by NSW Police officers, also on Oxford St after the parade had finished. Now that all charges against Mr Hutchinson, and his sister Kate, have been dismissed by the courts, he has written about his experiences in the Star Observer. (http://www.starobserver.com.au/opinion/soapbox-opinion/my-terror-of-crossing-oxford-street-at-mardi-gras/113785)

But it is important to remember that it was not just these two isolated incidents that left a sour taste in the mouths of many after what is supposed to be a celebration of pride and diversity. Nor were instances of alleged Police brutality confined to the night of the Parade and Party, but instead occurred throughout the Mardi Gras Festival.

In fact, Sydney Mardi Gras and ACON received at least 58 complaints about the way people had been treated by NSW Police over the entire Mardi Gras season. These complaints included allegations of intimidation and aggression by Police on Oxford St after the Parade had finished, reports of homophobic language and behaviour at the main Party, of intimidation, violence, excessive physical force and coercion during drug operations at both the Harbour Party and main Party, and other aggressive and intimidating behaviour in LGBTI venues along Oxford St during the Festival.

Since March, Sydney Mardi Gras, ACON, the Inner City Legal Centre (ICLC) and the NSW Gay & Lesbian Rights Lobby (GLRL) have been attempting to work through these issues in consultation with the LGBTI community. They recently released an advocacy document outlining 12 recommendations to the NSW government, although, with just 2 months left til the 2014 season gets underway, it is currently unclear how many will be accepted by Premier Barry O’Farrell, Police Minister Michael Gallacher and others. (http://glrl.org.au/images/stories/Publications/20131115_policing_at_lgbti_events_and_venues.pdf)

What is likely is that NSW Police will be much better behaved – at least for the 2014 Mardi Gras Festival, Parade and Party. They will be told by their superiors that to repeat what happened this year would reflect badly on the Government (in the media), as well as potentially jeopardising the money that is brought into the NSW economy by Mardi Gras and associated events. They will also be keenly aware that all eyes will be on them come February and March 2014, to see if their poor behaviour is repeated (on camera).

Nevertheless, the real test will come in 2015, 2016 and beyond, when the immediate controversy has died down, media interest has waned, and the temptation will emerge for some elements of the Police (because it should always be remembered that not all Police act poorly) to slip back into the (alleged) intimidation and outright aggression of 2013.

If the majority of the Mardi Gras, ACON, ICLC and GLRL recommendations are adopted (especially recommendations 1-3), then we may see some positive long-term cultural changes within NSW Police, meaning that future Mardi Gras patrons may not suffer in the same way that Jamie, Bryn and others did this year.

But, in my opinion, the two best recommendations for helping to ensure that NSW Police are ‘well-behaved’ at future Mardi Gras events are perhaps the two that are least likely to be adopted by the NSW Government.

The first, recommendation 7, calls for an end to drug detection dog operations. The evidence against the use of sniffer dogs has piled up since legislation was first passed authorising their use, without warrants, in NSW public places in 2001. The 2006 Ombudsman’s Report was damning in terms of their lack of effectiveness, as well as the risks, including health risks, of their ongoing use. In 2011, just 20% of drug dog indications resulted in Police actually finding drugs on the person searched.

The 2013 Mardi Gras experience, especially for attendees of the Harbour Party, simply confirmed the vagueness of what constitutes ‘reasonable grounds’, as well as the gross invasion of civil liberties and indeed bodily integrity involved in a subsequent drug search.

The use of drug detection dogs should end, end of story. And yet, with both the current Coalition, and previous Labor, Governments seemingly addicted to ‘law & order’, that outcome seems incredibly unlikely.

Something which is slightly more feasible is the subject of the other key recommendation (11), which calls for the establishment of a “transparent, representative civilian-led police complaints and investigatory body with the appropriate resources, capabilities and knowledge” to oversee NSW Police. Obviously, such a body would help remedy issues experienced, not just by the LGBTI community, but also by other vulnerable groups across NSW, including Aboriginal and Torres Strait Islanders, young people and people from Culturally and Linguistically Diverse (CALD) backgrounds.

It should be acknowledged that the NSW Government has taken a small step down this path, by appointing the former Commonwealth Attorney-General, Robert McClelland, to review the investigation and oversight of police critical incidents (those where police actions have resulted in the death or serious injury of a member of the community). But this represents just a small sub-set of police actions which should be subject to independent review, and it is undeniably a long, and hard, road from this narrow review to the introduction of a broad-based, independent complaints body. We’ll see what happens on this in coming months (and, I suspect, years).

There is one final comment which I feel compelled to make. In the aftermath of the incidents during this year’s Mardi Gras, some members of Sydney’s LGBTI community focused on the possible involvement of Police officers from outside the Surry Hills Local Area Command. Specifically, they argued that if we could somehow return to a (simpler) time when Surry Hills Police were sufficient to patrol the Mardi Gras, supplemented by others from around Sydney who volunteered to be on duty, then the problems of 2013 would somehow disappear.

To me, that ignores a much deeper problem. If a Police officer is going to behave in an allegedly homophobic and aggressive way on the busiest gay night of the year, on Oxford St, in front of thousands of people, then how are they going to treat an individual LGBTI person, when nobody is looking, in other parts of Sydney, or indeed elsewhere in the state?

I am not interested in just having an LGBTI-friendly Police force serving the inner-city enclaves of Surry Hills and Newtown, while simultaneously ignoring the potential for homophobia outside those supposedly safe borders. Any officer, from any part of the State, should be able to be called up for duty around Mardi Gras and behave in a responsible and respectful manner.

Above all, every single officer, in every single station across NSW, must be able to deal with, and respond appropriately to, the concerns of LGBTI people. If they can’t, they should have their badges taken off them, because they’re not fit to be a Police officer.