Tag Archives: Tim Wilson

Response from Gillian Triggs re Responsibility for LGBTI Issues at the Australian Human Rights Commission

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In July, I wrote about the need for a full-time Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues at the Australian Human Rights Commission (AHRC)[i].

This was in part a response to the actions of Human Rights Commissioner, Tim Wilson, who, while serving as the AHRC spokesperson for SOGII issues, was arguing for the introduction of new rights to discriminate, including against LGBTI couples, as part of any reform to marriage laws[ii].

However, more broadly, it was a reflection of the overall need for the Commission to devote more resources to addressing issues of homophobia, biphobia, transphobia and intersexphobia across Australian society.

As part of that post, I wrote to the President of the AHRC, Gillian Triggs, calling on her to reallocate responsibility for LGBTI issues to a Commissioner other than Mr Wilson. In September, I received the following response from Ms Triggs:

“21 September 2015

Dear Mr Lawrie

Thank you for your letter to me regarding the responsibility for Sexual Orientation, Gender Identity and Intersex (SOGII) Human Rights at the Commission.

The Australian Human Rights Commission comprises the President and 5 Commissioners. As President, I am responsible for all functions of the Commission. However, each Commissioner has a specific portfolio for which they are individually responsible.

I asked Tim Wilson to be the spokesperson on SOGII human rights. However, I and the other Commissioners also contribute public comment on the SOGII portfolio.

Under our statutory mandate at the Commission also has several functions that address the SOGII brief.

  1. We accept and try to resolve by conciliation individual complaints of discrimination and human rights under the four major pieces of legislation. No complaint under these acts can go to a court, unless and until the matter has been considered by the Commission.
  1. We intervene in court proceedings that involve human rights issues and we examine laws relating to certain rights and often propose improvements to those laws.
  1. We conduct national inquiries to bring special attention to issues of concern.
  1. We provide education about human rights to improve awareness, understanding and respect for rights in our community – in particular, the Commission is contributes to the inclusion of human rights education in the development of the National Schools Curriculum and works with the Safe Schools Coalition Australia.
  1. We conduct research and propose new policy and standards which promote the enjoyment of human rights.

The latest example of this is the Resilient individuals: sexual orientation, gender identity & Intersex rights national consultation report, a copy of which I have included in this letter.

The aim of the project was to consult stakeholders to identify key issues that can inform the Commission’s future work on SOGII issues. From June 2014 to January 2015 Cr Tim Wilson travelled nationally to consult lesbian, gay, bisexual and transgender stakeholders in face to face meetings. In addition, over 1550 people participated in an online survey, and over 30 written submissions were received.

While each Commissioner is free to adopt an individual approach to the SOGII portfolio, the Australian Human Right Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.

I hope that this description of the contribution to SOGII matters is helpful.

Best wishes,

Gillian Triggs

President”

[NB Typographical errors in original]

In my view, this letter is not exactly a ringing endorsement of Mr Wilson, or the job that he is doing on LGBTI issues. While it notes the Resilient individuals process and report, led by Mr Wilson, it also makes clear that “I [Gillian Triggs] and the other Commissioners also contribute public comment on the SOGII portfolio” and that “the Australian Human Rights Commission maintains a unified policy in ensuring human rights apply equally to LGBTI stakeholders.”

Unfortunately, that doesn’t answer the question of whether Ms Triggs and the AHRC are unified in support of the introduction of new rights to discriminate as part of the implementation of marriage equality, something that Mr Wilson advocated for, yet again, last week in the Sydney Morning Herald.[iii]

Nor does it overcome the problem of the AHRC spokesperson on SOGII human rights prioritising the expansion of religious freedoms, including through convening his ‘religious freedom roundtable’ (with the first meeting to be held next Thursday, 5 November 2015), something which usually results in the diminution of rights for lesbian, gay, bisexual, transgender and intersex people.[iv]

However, it appears that these issues aren’t going to be resolved any time soon and, in fact, they may only be conclusively resolved when either the Turnbull Liberal-National Government, or a subsequent Labor Government, finally creates and provides funding for a stand-alone LGBTI Commissioner within the AHRC. Based on the agenda currently being pursued by Mr Wilson, in my opinion that day can’t come soon enough.

President of the Australian Human Rights Commission, Professor Gillian Triggs

President of the Australian Human Rights Commission, Professor Gillian Triggs

[i] “Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission” July 12, 2015: https://alastairlawrie.net/2015/07/12/why-we-need-a-full-time-lgbti-commissioner-at-the-australian-human-rights-commission/

[ii] “Religious freedom and same-sex marriage need not be incompatible” The Australian, 6 July 2015 http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[iii] “Religious freedom isn’t a trump card, but it does need to be a part of marriage equality debate” Sydney Morning Herald, 21 October, 2015 http://www.smh.com.au/comment/religious-freedom-isnt-a-trump-card-but-it-does-need-to-be-a-part-of-marriage-equality-debate-20151020-gkecyn.html

[iv] For more on this issue, see my “Submission on AHRC proposal to create a religious freedom roundtable” September 25, 2015: https://alastairlawrie.net/2015/09/25/submission-on-ahrc-proposal-to-create-a-religious-freedom-roundtable/

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

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Mr Tim Wilson

Australian Human Rights Commissioner

C/- rights@humanrights.gov.au

Friday 25 September 2015

Dear Mr Wilson

Submission on Religious Freedom Roundtable Proposal

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

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

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

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

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

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

The ALRC went on to comment that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

Alastair Lawrie

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

[ii] Ibid.

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

[iv] Ibid, para 4.39, page 104.

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

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

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

[viii] Ibid.

Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission

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As I have written previously, the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 was a major achievement for lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Australia[1].

It provided anti-discrimination protections for LGBTI people under Commonwealth law for the first time – including historic world-first specific protections for people with intersex variations.

However, one thing this legislation did not do was establish a statutory position for a Commissioner for Sexual Orientation, Gender Identity and Intersex (SOGII) Issues within the Australian Human Rights Commission (AHRC) – unlike existing positions for race and sex (indeed, the Sex Discrimination Commissioner is created in section 96 of the same act in which LGBTI anti-discrimination protections now live[2]).

This means there is no guaranteed advocate for LGBTI equality within the AHRC. The current President of the AHRC, Gillian Triggs, has sought to overcome this serious shortcoming by asking the Human Rights Commissioner, Tim Wilson, to also accept responsibility for SOGII issues, in addition to his existing priorities.

Nevertheless, this essentially stop-gap measure does not reconcile the challenges presented when his ‘part-time’ role – his responsibilities for LGBTI matters – conflicts with his full-time role – he was appointed by the Commonwealth Attorney-General, Senator George Brandis, with the explicit mandate to advocate for ‘freedoms’, by which he meant traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

Over the past 18 months, this tension has played out in a variety of ways, including through the failure of the otherwise worthy Resilient Individuals: Sexual Orientation, Gender Identity & Intersex Rights 2015 Report[3] to adequately address the issue of state-sanctioned discrimination by religious organisations against people simply for being LGBT.

However, this conflict has come to a head in a column which Mr Wilson wrote for The Australian last week on the topic “Religious freedom and same-sex marriage need not be incompatible”[4], in which he argued that, should marriage equality legislation be passed in Australia, new rights should be created to allow not just ministers of religion, but also businesses involved in providing wedding-related services (and yes, that includes businesses selling wedding cakes), to discriminate against customers.

Through this column, Mr Wilson has indicated that his first priority is protecting the freedom to discriminate, and that the right of LGBTI Australians not to be discriminated against comes second (and even then arguably by some distance). He has therefore demonstrated that his roles as Human Rights Commissioner, and ‘part-time’ responsibility for SOGII issues, are incompatible.

In the short-term, lesbian, gay, bisexual, transgender and intersex Australians deserve a Commissioner within the AHRC whose existing responsibilities do not cause them to advocate against their interests. In the medium-term, we need a stand-alone full-time Commissioner for SOGII issues within the Commission, to avoid these problems arising in the future.

I have written below two letters, one to the President of the AHRC, Gillian Triggs, calling for Mr Wilson’s responsibilities for LGBTI matters to be reallocated within the Australian Human Rights Commission.

And I have written a second letter to the Shadow Attorney-General, Mark Dreyfus, asking him to support a resolution at the upcoming ALP National Conference to amend the Labor Party Platform to include a commitment to create a new Commissioner for Sexual Orientation, Gender Identity and Intersex Issues within the AHRC.

I have chosen not to write or send a third letter, to the current Attorney-General, George Brandis, given he likely agrees with the actions of Mr Wilson, and it is extremely unlikely that someone who axed funding for the position of Disability Commissioner (and therefore ended the role of the highly-respected disability rights advocate Graeme Innes) last year, would somehow find funding for the creation of a SOGII Commissioner today.

As always, I will publish any responses I receive from Ms Triggs and Mr Dreyfus.

Professor Gillian Triggs

President

Australian Human Rights Commission

GPO Box 5218

SYDNEY NSW 2001

Sunday 12 July 2015

Dear Professor Triggs

PLEASE REALLOCATE RESPONSIBILITY FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the allocation of responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission (AHRC).

Specifically, I call on you to reallocate these responsibilities, which currently lie (informally at least) with the Human Rights Commissioner, Mr Tim Wilson, to another of the Commissioners within the AHRC.

I do so because I believe that the stance which Mr Wilson has adopted, in advocating for traditional freedoms like freedom of religion, has taken precedence over and is increasingly incompatible with the responsibility to advocate for the equal rights, and freedom from discrimination, of lesbian, gay, bisexual, transgender and intersex Australians.

I cite as evidence the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

Mr Wilson may well respond to the above description of his column by indicating he is performing his primary role, which is to advocate for traditional rights and freedoms, including the freedom of religion. I am not disputing that view.

However, I submit that, in doing so, he is not fulfilling his ‘part-time’ responsibilities, which include advocating for the removal of discrimination against lesbian, gay, bisexual, transgender and intersex people.

LGBTI Australians deserve better than to have a ‘part-time’ Commissioner for whom, when potential conflict arises between freedom of religion and their freedom from discrimination, as it does in this situation, the former takes precedence.

I urge you to reallocate the responsibility for sexual orientation, gender identity and intersex issues within the Australian Human Rights Commission from Mr Wilson to another Commissioner, hopefully to one where there is less apparent conflict between their primary role and these additional functions.

The only way in which such a conflict can be resolved on a permanent basis would be for the amendment of the Sex Discrimination Act to create, and for Government to appoint, a full-time Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the AHRC. I therefore also urge you to advocate for the creation of such a position by the Government.

Thank you in advance for your consideration of this correspondence.

Sincerely

Alastair Lawrie

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

President of the Australian Human Rights Commission, Professor Gillian Triggs, should reallocate responsibility for LGBTI issues within the Commission.

Hon Mark Dreyfus QC, MP

Shadow Attorney-General

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 12 July 2015

Dear Mr Dreyfus

PLEASE SUPPORT THE CREATION OF A COMMISSIONER FOR SEXUAL ORIENTATION, GENDER IDENTITY AND INTERSEX ISSUES WITHIN THE AHRC

I am writing to you about the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

Specifically, I call on you to help address one of the outstanding issues of this historic legislation – namely, the failure to create a new statutory position of Sexual Orientation, Gender Identity and Intersex (SOGII) Issues Commissioner within the Australian Human Rights Commission (AHRC).

Without such a position, the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians are not being as effectively promoted as they could be, and certainly not as effectively as the rights promoted by the statutory Race and Sex Discrimination Commissioners, also within the AHRC.

For example, currently, and in the absence of a statutory position, responsibility for SOGII issues has been allocated, on a ‘part-time’ basis, to the Human Rights Commissioner, Mr Tim Wilson, whose primary role is to advocate for ‘freedoms’, meaning traditional civil liberties as opposed to more contemporary rights like freedom from discrimination.

This means that, not only do issues of discrimination that confront LGBTI Australians not receive sufficient time and resources, but they are also secondary to, and sometimes incompatible with, the promotion of other rights like the freedom of religion.

One example of this incompatibility comes from the column which Mr Wilson wrote for The Australian newspaper, published on Monday 6 July 2015, titled “Religious freedom and same-sex marriage need not be incompatible.”

In this piece, Mr Wilson does the following four things:

First, he argues that the legislation which finally introduces marriage equality in Australia should include new provisions which provide a substantive right to discriminate against couples, not just for ministers of religion (which are already proposed), but also for businesses that provide wedding-related services.

Second, the argument for this appears to be primarily to allow businesses the ability to discriminate against LGBTI couples (so that the individuals who operate these businesses are not “forced to act against their conscience”).

Not only is Mr Wilson raising this issue now as part of the broader discussion around making marriage non-discriminatory on the basis of sexual orientation, gender identity or intersex status – but, just as importantly, there does not appear to be any other public calls for a greater right to discriminate for wedding service providers outside of the marriage equality debate.

Third, the ‘solution’ which he offers, which would allow discrimination by wedding service providers on the basis of the religious (or not) nature of the wedding involved, would allow increased discrimination against a wide range of couples – in practice, this would inevitably include a detrimental impact on some LGBTI couples (although of course they would not be the only ones affected).

Fourth, at a time when one of the last major legal sources of discrimination against LGBTI Australians are the wide-ranging exceptions to anti-discrimination laws which are offered to religious organisations, instead of advocating for the curtailment of these exceptions, Mr Wilson is arguing for establish new rights to discriminate in a key area of public life.

In my opinion as an LGBTI advocate, it is simply not good enough that, when there is a conflict between the freedom of religion and freedom from discrimination, the person with responsibility for SOGII issues within the AHRC promotes the former at the expense of the latter.

The issues of homophobia, biphobia, transphobia and intersexphobia which confront LGBTI Australians, every day, are both real and serious. We deserve a full-time Commissioner within the AHRC to help address these problems – and certainly not a ‘part-time’, informal appointee, whose primary responsibilities can conflict with, and in some instances override, LGBTI rights.

I understand that, at the upcoming ALP National Conference in Melbourne, on July 24-26 2015, there will likely be a resolution to amend the Labor Party Platform to include a commitment to create a new Sexual Orientation, Gender Identity and Intersex Issues Commissioner within the Australian Human Rights Commission.

This resolution is based on recent developments in Victoria, where the new Labor Government has committed to appointing Australia’s first Gender and Sexuality Commissioner within the Victorian Equal Opportunity and Human Rights Commission (VEOHRC)[5].

I call on you, as Shadow Attorney-General, to support moves to amend the Platform in this way, so that the Federal Labor Party can establish the first stand-alone SOGII Commissioner at Commonwealth level when it returns to Government.

Thank you in advance for your consideration of this correspondence.

Sincerely,

Alastair Lawrie

[1] Highs & Lows of 2013, No 2: Australia finally adopts federal anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex people: https://alastairlawrie.net/2013/12/26/no-2-australia-finally-adopts-federal-anti-discrimination-protections-for-lesbian-gay-bisexual-transgender-and-intersex-people/

[2] “Section 96. Sex Discrimination Commissioner. (1) There shall be a Sex Discrimination Commissioner, who shall be appointed by the Governor-General.”

[3] The Resilient Individuals Report is available here: https://www.humanrights.gov.au/our-work/sexual-orientation-sex-gender-identity/publications/resilient-individuals-sexual

[4] http://www.theaustralian.com.au/opinion/religious-freedom-and-same-sex-marriage-need-not-be-incompatible/story-e6frg6zo-1227429558684

[5] VEOHRC Media Release welcoming Budget funding for this appointment: http://www.humanrightscommission.vic.gov.au/index.php/news-and-events/media-releases/item/1225-commission-welcomes-funding-for-lgbti-community-in-state-budget

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

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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.

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

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

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

Mr Tim Wilson

Human Rights Commissioner

Australian Human Rights Commission

c/- rights2014@humanrights.gov.au

Monday 27 October 2014

Dear Commissioner Wilson

SUBMISSION TO RIGHTS & RESPONSIBILITIES 2014 CONSULTATION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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