Consultation on the protection
from discrimination on the
basis of sexual orientation and
sex and/or gender identity
Australian Human Rights Commission
GPO Box 1989, Canberra
ACT 2601, DX 5719 Canberra
19 Torrens St Braddon ACT 2612
Telephone +61 2 6246 3788
Facsimile +61 2 6248 0639
Law Council of Australia Limited
ABN 85 005 260 622
www.lawcouncil.asn.au
Dated 29 November 2010
2
Table of Contents
Acknowledgement .......................................................................................................... 4
Executive Summary ........................................................................................................ 5
Introduction ..................................................................................................................... 6
Terminology .................................................................................................................. 7
Background ................................................................................................................... 7
International Human Rights Context .............................................................................. 9
International Covenant on Civil and Political Rights (ICCPR) ....................................10
Other International Instruments.................................................................................11
Proposed UN Declaration on Sexual Orientation and Gender Identity ......................12
Yogyakarta Principles ...............................................................................................12
Domestic Context .........................................................................................................14
Progress towards federal legislation .........................................................................14
Human Rights Framework and Anti-Discrimination Legislation Consolidation ...........15
Constitutional issues .................................................................................................15
Commission Discussion Paper Questions: .................................................................16
Benefits of Prohibiting Discrimination on the Basis of Sexual Orientation and Sex
and/or gender Identity ..................................................................................................16
Existing Federal Coverage........................................................................................16
State and Territory Coverage ....................................................................................17
Application of State and Territory Legislation to the Commonwealth .........................19
Ability of federal legislation to cover the field.............................................................21
Benefits of Prohibiting Vilification and Harassment on the Basis of Sexual
Orientation and Sex and/or gender Identity ..................................................................22
Vilification .................................................................................................................23
Harassment ..............................................................................................................25
Terminology and scope of legislation ...........................................................................26
Special measures .........................................................................................................28
Complementary actions by the Australian Government ................................................29
General measures supporting the introduction of federal anti-discrimination laws.....29
Flow on Changes ......................................................................................................30
Consolidation of anti-discrimination legislation ..........................................................31
Same-Sex Marriage ..................................................................................................33
Legal Recognition of Sex in Documents and Government Records ..........................33
Conclusion .....................................................................................................................33
Attachment:
3
Profile of the Law Council of Australia ................................................35
Acknowledgement
The Law Council would like to acknowledge the assistance of the Law Institute of Victoria,
Queensland Law Society, Law Society of Western Australia, Law Society of South
Australia, New South Wales Bar Association and Victorian Women Lawyers in preparing
this
submission.
4
Executive Summary
Research shows that Australians who are lesbian, gay, bisexual, transgender or intersex
(LGBTI) face widespread levels of discrimination and abuse due to their sexual orientation
or sex and/or gender identity. This has direct and devastating consequences, including
high rates of depression and a greater risk of suicide. To help address this situation,
federal laws prohibiting discrimination, harassment and vilification on the basis of sexual
orientation and sex and/or gender identity are needed.
The current absence of comprehensive federal anti-discrimination laws on the grounds of
sexual orientation constitutes a failure by the Australian Government to meet its
international human rights obligations. It is also likely that the absence of such laws on
the grounds of sex and/or gender identity constitutes a similar failure. The case for
introduction of legislation is particularly compelling given Australia’s endorsement of the
proposed Declaration on Sexual Orientation and Gender Identity which was put to the UN
General Assembly in 2008. Enacting federal domestic legislation will help Australia to
demonstrate international leadership in addressing global violations of human rights which
are based on these attributes.
Current federal legislative protections against discrimination on the basis of sexual
orientation are patchy and lack enforceability. In the case of sex and/or gender identity,
they are close to non-existent. While all States and Territories have enacted legislation to
some extent on these issues, it is inconsistently worded and in some cases excludes key
groups of people. There are also doubts about the extent to which the Commonwealth is
bound by State and Territory laws. As well as providing redress in these situations, a
federal best practice model would also assist greatly in the harmonisation process of State
and Territory anti-discrimination legislation which is currently underway.
Because of the high levels of homophobia, verbal abuse, property damage and hate
motivated assault experienced by Australians who are LGBTI, the Law Council of
Australia also supports the introduction of federal anti-vilification and harassment laws.
These laws have an important educative role in signalling to the entire community that
such conduct is unacceptable.
Careful consultations with LGBTI communities will be important in ensuring that the
terminology and scope of federal laws are appropriate and not exclusionary. Such
consultations will also help to ensure that special measures provisions are effective in
their aim of achieving substantive equality for Australians who are LGBTI.
A number of Australian Government actions are needed to complement the introduction of
these laws. They include measures to increase compliance by the Australian Public
Service, audits and flow-on changes to other legislation and increasing the effectiveness
of anti-discrimination legislation overall. In addition, outstanding issues of particular
significance include same-sex marriage and the legal recognition of sex in documents and
Government records.
The Law Council welcomes the Australian Government’s recent confirmation that it will
introduce legislation to protect against discrimination on the basis of sexual orientation
and sex and/or gender identity, as part of its review and consolidation of federal antidiscrimination laws. In this context, the Australian Human Rights Commission’s current
consultation with stakeholders on such issues is particularly timely and valuable.
5
Introduction
1.
The Law Council of Australia is pleased to provide the following submission in
response to the Australian Human Rights Commission’s (the Commission’s)
consultation on discrimination on the basis of sexual orientation and sex and/or
gender identity.
2.
The Law Council is the peak representative body for the Australian legal profession
as outlined in the Attachment to this submission.
3.
The Commission’s consultation canvasses community views on the possible
inclusion of protections on the basis of sexual orientation and sex and/or gender
identity in federal anti-discrimination law. The Australian Government has recently
affirmed its commitment to introducing legislation to protect against these forms of
discrimination as part of its review and consolidation of federal anti-discrimination
laws.
4.
As part of its consultation, the Commission is seeking community views on issues
including:
(a)
the benefits of prohibiting discrimination, vilification and/or harassment on the
basis of sexual orientation and sex and/or gender identity;
(b)
examples of situations where federal protections are needed due to
inadequate protection under State and Territory laws;
(c)
the terminology which should be used to protect against discrimination on the
basis of sexual orientation, sex and/or gender identity under any federal laws,
including for people who identify as intersex;
(d)
what special measures designed to benefit specific groups based on sexual
orientation and sex and/or gender identity should be allowed; and
(e)
any other actions which should be taken by the Australian Government to
better protect and promote the rights of LGBTI people in Australia.
5.
In this submission, the Law Council has provided an overview of the case for, and
benefits of, introducing anti-discrimination legislation on the basis of sexual
orientation and sex and/or gender identity. This includes a discussion of Australia’s
position under international law and the inadequacy of current domestic protections
at the federal level.
6.
However, in this submission, the Law Council has not addressed in exhaustive detail
the terminology which should be used in enacting federal laws of this kind. It
anticipates that other groups and individuals are likely to go into depth on this issue
at this stage, given their particular experience and understanding of the area.
7.
In addition, the Law Council has canvassed only briefly the proposed grounds, areas
of discrimination, exemptions, special measures and remedies which would be
covered by federal legislation at this stage. However, it looks forward to further
opportunities to discuss these issues as a Bill is drafted.
6
Terminology
8.
9.
The Law Council acknowledges the significance of the use of terminology, and its
contestability, in describing individuals and groups of people. However, throughout
this paper the Law Council has generally adopted the terms used by the
Commission in its Protection from Discrimination on the Basis of Sexual Orientation
and Sex and/or Gender Identity: Discussion Paper (the Discussion Paper).1 These
terms include:

“sexual orientation”;2

“sex and/or gender identity”;

“trans” and “transgender”;

“people who identify as being intersex”; and

“LGBTI” as an abbreviation to describe people as lesbian, gay, bisexual, trans
or intersex.
In some cases, the Law Council has adopted slightly different terminology, for
example, when quoting the actual language used in legislation, cases or
commentary.
Background
10.
While Australia has made advances in terms of treating LGBTI communities with
greater fairness and respect, research shows that homophobia and transphobia is
still widespread. This includes personal insults, verbal abuse, threats of violence or
intimidation, physical violence, and harassing behaviour as well as less favourable
treatment in work, education and other spheres. Such discriminatory conduct has
been significantly associated with higher rates of anxiety and depression amongst
LGBTI communities, as well as a greater risk of suicide and self-harm.3
11.
Meanwhile, worldwide, people are subject to persistent human rights violations
because of their actual or perceived sexual orientation and sex and/or gender
identity. For example, several countries maintain the death penalty for consensual
same sex practices and people have been killed or sentenced to death on this basis.
Transgender people are particularly likely to be targeted for violence and have been
described as amongst the most vulnerable and marginalised people in society.
1
Australian Human Rights Commission, Protection from Discrimination on the Basis of Sexual Orientation and
Sex and/or Gender Identity: Discussion Paper, October 2010, available at
http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/discussion_paper.html, accessed
22 November 2010
2 The Law Council notes that the term “sexual orientation” is generally held to be preferable compared with
“sexual preference”, which implies choice: see for example, Australian Coalition for Equality’s (ACE’s) Policy
Paper regarding its proposed Equality (Gender Identity, Intersex and Sexual Orientation) Model Bill 2009;
15 June 2009; circulated by ACE in relation to the current consultation, 28 October 2010, page 8
3 See summary of research outlining discrimination and abuse in Australia in Australian Human Rights
Commission, Sexual Orientation and Sex and/or Gender Identity, Research Paper – October 2010 (the
Research Paper), page 4, available at
http://www.hreoc.gov.au/human_rights/lgbti/lgbticonsult/research_paper.html, accessed 12 November 2010
7
International cases of discrimination against LGBTI people in accessing economic,
social and cultural rights have also been widely documented.4
12.
The Law Council considers that federal laws are needed to address discrimination
against Australians in LGBTI communities. In enacting these laws, Australia has a
broader leadership role in addressing human rights violations against people in
LGBTI communities globally.
13.
The Law Council has a history of advocating the elimination of all forms of
discrimination and the promotion of equality in Australia. This is consistent with its
work to maintain and promote the fundamental principles which uphold the Rule of
Law. These principles include that:
14.
(a)
the law should be applied to all people equally and should not discriminate
between people on arbitrary or irrational grounds; and
(b)
everyone is entitled to equal protection before the law and no one should be
conferred with special privileges.
For example, in its 2009 Submission to the National Consultation on Human Rights,
the Law Council emphasised Australia’s obligation to protect and promote all human
rights contained in international treaties to which it is a party, including the rights to:
o
o
non-discrimination, equality before the law and the equal protection of the law
(Article 26 of the International Covenant on Civil and Political Rights (ICCPR));
and
marry and start a family, including equality of rights and responsibilities of
spouses during marriage and its dissolution (Article 23 of the ICCPR).5
15.
In this submission, the Law Council noted the failure of the existing federal legal
framework to guarantee adequate protection for fundamental human rights. In
particular, it emphasised that “current Commonwealth anti-discrimination laws do
not provide adequate protection against discrimination on the grounds of sexual
preference”.6
16.
More specifically, the Law Council has advocated removing discrimination against
same sex couples, particularly through removing legal restrictions on same sex
marriage, by:
o
o
writing to the Attorney-General and making a submission to the Commission in
2006 supporting policy changes on these issues;7
seeking major parties’ positions on same sex marriages in the lead-up to the
2007 election;8
See summary of human rights abuses in Michael O’Flaherty and John Fisher, Sexual Orientation, Gender
Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, Human Rights Law
Review 8:2 (2008), pages 207-248
5 Law Council of Australia, A Charter: Protecting the Rights of All Australians: Submission to the National
Consultation on Human Rights , 6 May 2009, pages 7-8 available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=576D5A42-1E4F-17FA-D260F75AF0309582&siteName=lca
6 Ibid, page 56
7 Law Council of Australia, Same Sex Entitlements Discussion Paper 2006: Human Rights and Equal
Opportunity Commission submission, available on request from the Law Council
8 Law Council of Australia, Federal Election 2007: Key Issues: Reponses, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=F4B05C9E-1E4F-17FA-D2F4B951CCFA0B74&siteName=lca
4
8
o
o
o
highlighting the discrimination experienced by same sex couples in its Shadow
Report to Australia’s Common Core Document for the United Nations Human
Rights Committee in 2008;9
providing submissions and evidence to the Senate Legal and Constitutional
Affairs Committee (the Senate Committee) on draft Bills to remove
discrimination against same sex couples in over 80 Commonwealth laws.10
The Law Council welcomed the passage of these Bills on 24 November
2008;11 and
lodging a submission to the Senate Committee on the Marriage Equality
Amendment Bill 2009, introduced by the Greens, which sought to permit
marriage equality for people regardless of sex, sexuality and gender identity.12
This Bill was rejected by the Senate on 25 February 2010.
17.
On 29 September 2010, the Greens introduced a new Marriage Equality
Amendment Bill 2010, which is substantially similar to its 2009 Bill. The Law Council
will provide its continued support for this Bill as a means to eliminate discrimination
for same sex couples.
18.
In this context, the Law Council welcomes:
(a)
the Australian Government’s recent confirmation that it will introduce
legislation to protect against these forms of discrimination as part of its review
and consolidation of federal anti-discrimination laws;13 and
(b)
the Commission’s current consultation on introducing federal laws for the
protection from discrimination on the basis of sexual orientation and sex
and/or gender identity. This consultation will be essential in determining the
application and scope of these laws.
International Human Rights Context
19.
While there is no international treaty that specifically deals with the human rights of
LGBTI people, a number of key international treaties support the recognition of
these rights. Australia has agreed to be bound by these treaties, which are detailed
below and to implement them domestically.
Law Council of Australia, Shadow Report to Australia’s Common Core Document: United Nations Human
Rights Committee 29 August 2008, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=8A45C5AA-1E4F-17FA-D281B36C6D0B996B&siteName=lca
10 Law Council of Australia, Inquiry into Same-Sex Relationships (Equal Treatment in Commonwealth Laws –
General Law Reform) Bill 2008: Senate Legal and Constitutional Affairs Committee submission, 16 September
2008, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=F16CD5351E4F-17FA-D27A-F44F71093EE5&siteName=lca; Law Council of Australia, Inquiry into Same-Sex
Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008: Senate Legal and
Constitutional Affairs Committee submission, 29 July 2008, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=6A1C9B60-1C23-CACD-22784A789B7384D1&siteName=lca
11Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 (Cth);
Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 ((Cth)
12 Law Council of Australia, Inquiry into the Marriage Equality Amendment Bill 2009: Senate Legal and
Constitutional Affairs Committee (28 August 2009), available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=37861B55-1E4F-17FA-D2E5A683CE9B7103&siteName=lca
13 Australian Government, Universal Periodic Review Final National Report – Australia, released
4 November 2010, available at http://www.ag.gov.au/upr, accessed 17 November 2010
9
9
International Covenant on Civil and Political Rights (ICCPR)14
20.
The ICCPR enshrines the rights of all people to non-discrimination, equality before
the law and the equal protection of the law:
(a)
Article 2 sets out the principle of non-discrimination “without distinction of any
kind such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status”; and
(b)
Article 26 sets out the principle of equality, including “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”.
21.
Other relevant rights set out in the ICCPR include the right to privacy (Article 17)
and the right to marry and found a family (Article 23).
22.
Article 2 of the ICCPR also places obligations on its signatories to:
23.
24.
14
(a)
guarantee all rights within the ICCPR to all individuals, including by adopting
such laws or other measures as may be necessary to give effect to the rights;
and
(b)
ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective, enforceable remedy.
Although the ICCPR does not specifically refer to sexual orientation, the United
Nations Human Rights Committee (Human Rights Committee) has found that its
Articles extend to an obligation to prevent discrimination on the ground of sexual
orientation:
(a)
In Toonen v Australia, 15 the Human Rights Committee found that Tasmanian
laws which criminalised consensual homosexual acts, even when they
occurred in a private home, breached the right to privacy (Article 17(1)). It
also noted that the reference to “sex” in Articles 2 and 26 were to be taken as
including sexual orientation.16
(b)
In Young v Australia,17 the Human Rights Committee concluded that the
distinction between the treatment of opposite-sex couples and same-sex
couples in relation to veterans’ entitlements was discrimination in breach of
article 26 of the ICCPR.18
The ICCPR also does not specifically refer to sex or gender identity. However, it is
likely that its principles would also extend to sex or gender identity under its “other
status” grounds.
International Covenant on Civil and Political Rights (New York, 19 December 1966; Aust TS 1980 No 23;
999 UNTS 171). The ICCPR is annexed to the Australian Human Rights Commission Act 1986 (Cth)
(Schedule 2)
15 Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92
16 This reference has been criticised by commentators, who argue that “sexual orientation” is better classified
under “other status” than as an aspect of one’s gender: S Joseph, J Schultz and M Castan, The International
Covenant on Civil and Political Rights; Cases, Commentary and Materials (2000), Oxford University Press,
page 530.
17 Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000
18 The Human Rights Committee made a similar decision in X v Colombia (1361/2005),
CCPR/C/89/D/1361/2005(2007)
10
25.
The Human Rights Committee has, for instance, placed an emphasis on the need
to:
(a)
protect transgender communities from violence, torture and harassment;19 and
(b)
recognise the right of people who are transgender to a change of gender by
permitting the issuance of new birth certificates.20
26.
International law experts Michael O’Flaherty and John Fisher consider it “untenable”
that transsexuals would have a lesser entitlement than other nominated persons to
protection under the ICCPR. They cite numerous instances in which the Human
Rights Committee and other treaty bodies have insisted on the entitlement of people
of diverse sexual orientations and gender identities to benefit from the protection of
human rights of general application.21
27.
Australia has been criticised in respect of its compliance with the ICCPR. In April
2009, the Human Rights Committee released its observations on Australia’s
compliance with the ICCPR.22 The Human Rights Committee noted that it:
“... remains concerned that the rights to equality and non-discrimination are not
comprehensively protected in Australia in federal law. (Art.2, and 26)”23
28.
The Human Rights Committee also recommended that Australia:
“... should adopt Federal legislation, covering all grounds and areas of discrimination
to provide comprehensive protection to the rights to equality and nondiscrimination.”24
Other International Instruments
29.
19
The right to non-discrimination on the basis of sexual orientation has been
recognised by United Nations (UN) committees responsible for the following
conventions:
(a)
the Convention on Economic, Social and Cultural Rights;25
(b)
the Convention on the Rights of the Child;26 and
(c)
the Convention on the Elimination of Discrimination Against Women.27
Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee, Russian Federation, 24 November 2009, CCPR/C/RUS/CO/6;
Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee, Colombia, 4 August 2010, CCPR/C/CO/6
20 Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee, Ireland, 30 July 2008, CCPR/C/IRL/CO/3
21
O’Flaherty and Fisher, above at n4, pages 221-222. See also S Joseph, J Schultz and M Castan, The
International Covenant on Civil and Political Rights; Cases, Commentary and Materials (2nd ed, 2004), which
discusses Human Rights Committee decisions suggesting that a clearly definable group of people linked by
their common status is likely to fall under the definition of “other status” (page 689).
22 Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the
Covenant: Concluding observations of the Human Rights Committee, Australia, CCPR/C/AUS/CO/5
(16 March – 3 April 2009)
23 Ibid at page 12.
24 Ibid.
25 Committee on Economic, Social and Cultural Rights, General Comment No 20 – Non-Discrimination in
Economic, Social and Cultural Rights, UN Doc E/C.12/GC/20 (2009)
26 Committee on the Rights of the Child, General Comment No 4: Adolescent health and development in the
context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC.2003/4
11
Australia has agreed to be bound by all of these Conventions.
30.
The Committee on Economic Social and Cultural Rights has also specifically stated
that gender identity is recognised as a prohibited ground for discrimination.28
31.
It is also likely that the protections in other treaties extend to the grounds of sex
and/or gender identity as well as sexual orientation. For example, the Committee on
the Rights of the Child has expressed concern that “transsexual, as well as
homosexual, young people do not have access to the appropriate information,
support and necessary protection to enable them to live their sexual orientation”.29
32.
Another relevant instrument is the International Labour Organization Convention
No 111 (the Convention),30 which was ratified by Australia in 1973. The Convention
prohibits employment-related discrimination on the grounds of race, colour, sex,
religion, political opinion, national extraction and social origin. Parties to the
Convention are permitted to add grounds for their own domestic purposes. In 1989
Australia added several grounds for its own purposes, including the ground of
sexual preference.31
Proposed UN Declaration on Sexual Orientation and Gender Identity
33.
On 18 December 2008, a proposed Declaration on Sexual Orientation and Gender
Identity was put to the UN General Assembly, reaffirming human rights and equality
for all people and condemning violence and violation of human rights based on
sexual orientation and gender identity. This document was endorsed by Australia
along with over 60 States.32
Yogyakarta Principles
34.
In 2007, a group of international human rights experts developed the Yogyakarta
Principles, which consider the application of international human rights law in
relation to sexual orientation and gender identity.33 While the Yogyakarta Principles
are not in themselves binding, they are highly persuasive in interpreting existing
international human rights obligations from this perspective.
35.
The Yogyakarta Principles reaffirm the rights of people to equality before the law
and the equal protection of the law, without discrimination on the basis of sexual
orientation or gender identity.34 They also set out actions that states should take to
implement these rights. These include:
27
Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding
Kyrgyzstan, 5 February 1999, A/54/38
28 Above at n25
29 Concluding Observations of the Committee on the Rights of the Child regarding the United Kingdom,
9 October 2002, CRC/C/15/Add.188
30 http://www.ilo.org/ilolex/cgi-lex/convde.pl?C111
31 http://www.hreoc.gov.au/human_rights/ilo/index.html
32 The proposed declaration was presented to the UN General Assembly on 18 December 2008. It was
originally intended to be adopted as a resolution but prompted an opposing statement backed by other
General Assembly members. Neither statement was adopted by the General Assembly: United Nations
Department of Public Information, General Assembly Adopts 52 Resolutions, 6 Decisions Recommended by
Third Committee on Wide Range of Human Rights, Social and Humanitarian Issues, (2008). Available at
http://www.un.org/News/Press/docs/2008/ga10801.doc.htm
33 http://www.yogyakartaprinciples.org/
34 Principle 2
12
36.
37.
35
36
(a)
embodying the principles of equality and non-discrimination on the basis of
sexual orientation and gender identity into national constitutions or other
appropriate legislation; and
(b)
adopting appropriate legislative and other measures to prohibit and eliminate
discrimination in the public and private spheres on the basis of sexual
orientation and gender identity.35
Other Yogyakarta Principles which are particularly relevant in the consideration of
areas in which people face discrimination and other detriments based on their
sexual orientation and gender identity, include the rights to:
(a)
the universal enjoyment of human rights;
(b)
recognition as a person before the law based on each person’s self-defined
sexual orientation and gender identity;
(c)
security of the person and protection by the State against violence or bodily
harm;
(d)
privacy, including the choice to disclose or not to disclose information relating
to one’s sexual orientation or gender identity;
(e)
work, including protection against discrimination;
(f)
social security and other social protection measures;
(g)
an adequate standard of living;
(h)
housing;
(i)
education;
(j)
health;
(k)
freedom of opinion and expression including through speech, deportment,
dress, bodily characteristics, etc;
(l)
found a family;
(m)
participate in public and cultural life; and
(n)
effective remedies and redress.36
The Law Council considers that the Yogyakarta Principles provide a useful tool for
assessing the kinds of Australian Government responses which are most needed to
realise substantive equality for LGBTI Australians.
Ibid.
Respectively, these are set out in Principles 1, 3, 5, 6, 12, 13, 14, 15, 16, 17, 19, 24, 25, 26 and 28
13
Domestic Context
Progress towards federal legislation
38.
There have been a number of public calls and commitments within Australia to
address the lack of federal anti-discrimination laws on the basis of sexual orientation
and sex and/or gender identity.
39.
Of particular interest is the detailed 1997 parliamentary inquiry by the Senate
Committee into Democrat Senator Sid Spindler’s Sexuality Discrimination Bill 1995
(Cth) (the Senate Sexuality Bill Inquiry).37
40.
After developing draft legislation on these issues in opposition,38 the federal Labor
Government came to office in 2007 promising to legislate to address discrimination
and prejudice on the basis of gender identity and sexual orientation.39
41.
More recently, the Senate Committee recommended in its 2008 Inquiry into the
effectiveness of the Sex Discrimination Act 1984 (Cth) (the Senate SDA Inquiry) that
the Commission examine the merits of incorporating additional grounds of
discrimination, such as sexual orientation or gender identity, under Commonwealth
law.40
42.
The 2009 Report on the Consultation into Human Rights in Australia chaired by
Father Frank Brennan AO (the Brennan Report) noted that this issue continued to
attract significant public support. It stated that public submissions frequently called
for national legislation to be enacted.41
43.
In its Final National Report to the UN Human Rights Council conducting the
Universal Periodic Review of Australia, the Government has recently affirmed its
commitment to introducing legislation to protect against discrimination on the basis
of a person’s sexual orientation or gender status as part of its review and
consolidation of federal anti-discrimination laws.42
44.
The Law Council welcomes this affirmation as a fundamental step following the
Government’s earlier progress made through the 2008 passage of legislation to
remove discrimination against same sex couples in over 100 areas of
Commonwealth law.
37
Senate Legal and Constitutional Affairs Committee, Inquiry into Sexuality Discrimination, available at
http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/199699/citizens/report/contents.htm, accessed 17 November 2010
38
An exposure draft of Labor’s Sexuality Discrimination Bill 2006 was released by then shadow AttorneyGeneral Nicola Roxon MP.
39
Labor stated that it supported the enactment of legislation to amend provisions that unfairly discriminate
against any person on the grounds of sexuality or gender identity: Australian Labor, National Platform and
Constitution 2007, page 207 available at http://www.nit.com.au/downloads/files/Download_161.pdf; accessed
17 November 2010
40
Senate Legal and Constitutional Affairs Committee, Inquiry into the effectiveness of the Sex Discrimination
Act 1984 (Cth) in eliminating discrimination and promoting gender equality, 2008, Rec 43, available at
http://aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm
41Father Frank Brennan AO (Chair), Mary Kostakidis, Tammy Williams and Mick Palmer AO APM, National
Human Rights Consultation Report, September 2009, available at http://www.humanrightsconsultation.gov.au/
42
Above at n13. This follows Labor’s 2009 statement that it supported the enactment of legislation prohibiting
discrimination on the basis of a person's sexual orientation or gender status: Australian Labor National
Platform and Constitution 2009, Chapter 7, page 16, available at http://www.alp.org.au/australian-labor/ourplatform/, accessed 18 November 2010
14
45.
The Law Council equally welcomes the Opposition Leader’s 2010 statement
providing his “in-principle support” for federal anti-discrimination legislation which
covers sexuality and gender diversity.43
Human Rights Framework and Anti-Discrimination Legislation Consolidation
46.
The Australian Government’s new Human Rights Framework (the Framework) was
announced in April 2010 as part of the Government’s response to the 2009 National
Human Rights Consultations.
47.
Its key principles include reaffirming a commitment to Australia’s human rights
obligations, and improving the human rights protections available in the community
through positive and practical action.44 Addressing the gap in federal antidiscrimination law on the basis of sexual orientation and gender/sex identity is an
obvious element of implementing the Framework.
48.
The Government has also announced its intention to streamline federal antidiscrimination law into one single comprehensive law. This work will provide a basis
for the development of harmonised State and Territory anti-discrimination laws
which is currently being progressed through the Standing Committee of AttorneysGeneral (SCAG).
49.
These efforts provide additional impetus for action on sexual orientation and
gender/sex identity issues.
Unless this issue is addressed federally, the
harmonisation of laws will be incomplete, given that all State and Territory laws
cover these issues to some extent. Unless federal legislation is achieved, the major
objectives of the streamlining of anti-discrimination law – to provide clarity of
individuals’ rights and overcome bureaucracy and red tape for business – will
remain unaddressed.45
Constitutional issues
50.
43
While reiterating its strong support for the introduction of federal anti-discrimination
laws on the grounds of sexual orientation and sex and/or gender identity, the Law
Council considers that it may be prudent for the Commission to seek specific advice
regarding the available powers under the Australian Constitution (the Constitution)
to support the enactment of these laws and their anticipated scope. This advice is
Reported Star Observer, 25 March 2010
http://www.starobserver.com.au/news/2010/03/25/abbottsupports-gay-anti-discrimination-legislation/23235; see also Coalition response in Law Council of Australia’s
Federal Election 2010 Key Issues: Responses, in which it recognised that “amendments to Commonwealth
legislation may be necessary in respect of discrimination on the basis of sexual orientation.” available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=44C4FD11-F3B6-5F75-8D7431DE489CAADD&siteName=lca
44 Attorney-General Hon Robert McClelland MP, “Australia’s Human Rights Framework,” media release,
21 April 2010, available at
http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter
_21April2010AustraliasHumanRightsFramework?open&query=Australia%C2%92s%20Human%20Rights%20Framework%
20media%20release; accessed 17 November 2010
45
Attorney-General Hon Robert McClelland MP and Minister for Finance and Deregulation Hon Lindsay
Tanner MP, “Reform of Anti-Discrimination Legislation – Joint Media Release”, 21 April 2010, available at
http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter
_21April2010-ReformofAnti-DiscriminationLegislation?open&query=Reform%20of%20AntiDiscrimination%20Legislation%20%C2%96%20Joint%20Media%20Release, accessed 17 November 2010
15
particularly important if Australia is to rely extensively on the external affairs power
set out in section 51 ((xxix) of the Constitution in implementing these laws.46
51.
In the time available for the current consultation, the Law Council has not had an
opportunity to consider this issue comprehensively. However, it notes that the issue
of available constitutional powers attracted some debate when considered by the
Senate Sexuality Bill Inquiry. For example, different views were submitted by the
federal Attorney-General’s Department, legal experts and the Commission on the
possible scope of any anti-discrimination laws.47
52.
The Law Council considers that the Australian Government is obliged to introduce
legislation incorporating the broadest scope of coverage possible under its
Constitutional Powers. This is particularly the case given that the Australian
Government has made its views on these issues clear on the international stage, for
example by endorsing the 2008 Declaration on Sexual Orientation and Gender
Identity put before the UN General Assembly.
Commission Discussion Paper Questions:
Benefits of Prohibiting Discrimination on the Basis of Sexual
Orientation and Sex and/or gender Identity
Existing Federal Coverage
53.
There is no federal law which comprehensively prohibits discrimination, harassment
and vilification on the grounds of sexual orientation and sex and/or gender identity.
54.
The current level of federal coverage is patchy and lacks enforceability. In the case
of discrimination due to sex and/or gender identity, it is close to non-existent. The
relevant federal legislation is set out below:
(a)
(b)
Human Rights and Equal Opportunity Commission Act 1984 (Cth):
(i)
Under this Act, the Commission may investigate matters and conciliate
complaints regarding discrimination on the basis of “sexual preference”
only in the context of employment. These provisions do not cover
gender/sex identity or related areas of discrimination.48
(ii)
The Commission is limited to reporting its findings to the AttorneyGeneral, who is not obliged to respond. There is no avenue to seek a
tribunal or court hearing and the Commission cannot enforce its
recommendations.
SDA:
(i)
46
The SDA prohibits discrimination on the basis of “sex”.
The
interpretation of this term does not extend to sexual orientation. 49 The
SDA’s definitions of a “man” and a “woman” also do not appear to
A number of Constitutional heads of power are potentially available in this context.
See Chapter 3 generally, above at n37
48 Australian Human Rights Commission Regulations 1989 (Cth) reg 4(a)(ix). These regulations have effect
under the Australian Human Rights Commission Act 1986 (Cth).
49 See Research Paper for a broader discussion of the limitations of the SDA, above at n3, page 21.
47
16
recognise a person who is intersex, and it is uncertain whether the SDA
would cover discrimination on the basis of gender identity.50
(ii)
(c)
(d)
The SDA protection for discrimination on the basis of “marital status”
does not extend to same-sex relationships. The Senate Committee
2008 report recommended that this term be replaced with “marital or
relationship status” which would include people in same-sex
relationships.51 However, in its response, the Government merely noted
this recommendation, stating that it required further consideration given
that it may impact on the private sector and State and Territory laws
relating to adoption, artificial conception and the recognition of sex.52
Disability Discrimination Act 1992 (Cth) (DDA):
(i)
As the Commission has noted, the DDA can cover discrimination against
people on the basis of their HIV or AIDS status.53
(ii)
The Commission has also noted the DDA could be interpreted to have
some coverage in relation to, for example, “transsexualism”. 54 However,
the Law Council agrees with the Commission’s view that forcing
individuals to rely on DDA for this purpose, because they lack alternative
mechanisms, is inappropriate.55
Fair Work Act 2009 (Cth) (the Fair Work Act):
(i)
While the Fair Work Act incorporates a number of welcome innovations
to address discrimination in the workplace (see discussion below), its
coverage is only partial. The Act prevents employers taking adverse
action against employees on the basis of attributes including “sexual
preference”, and “sex”.56
(ii)
“Sex” is undefined and, as for the SDA, the Fair Work Act’s provisions
may not extend to discrimination on the basis of sex or gender identity.
State and Territory Coverage
55.
All States and Territories have now introduced legislation which goes some way
towards protection against discrimination on the basis of sexual orientation. Some
have also led the field with landmark features which address discrimination more
generally. For example, the new Victorian regime has been welcomed for the
introduction of a positive duty on employers to prevent discrimination and for
The Research Paper states that this has not been tested legally – Ibid.
Rec 4, above at n40
52 Australian Government Response to the Senate Standing Committee on Legal and Constitutional Affairs
Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and
Promoting Gender Equality, available at
http://aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/gov_response.pdf, accessed 18 November 2010
53
Commission, “Frequently asked questions: Who is protected by the DDA?”, available at
http://www.hreoc.gov.au/disability_rights/faq/Who_is_protected_/who_is_protected_.html#transsex, accessed
18 November 2010
54 See Commission’s discussion under “Does the DDA apply to discrimination based on transsexualism”, Ibid.
55 Ibid. However, the view of AIS Support Australia, a support group for people affected by intersex
conditions, is noted. According to the Research Paper, this group is in favour of conceptualising
discrimination against people with intersex conditions as discrimination on the ground of disability/impairment:
see page 23, above at n3.
56s.351, Fair Work Act 2009 (Cth)
50
51
17
enhanced Commission powers to investigate systemic discrimination (see
discussion below).
56.
57.
58.
57
However, the coverage provided by State and Territory legislation regarding
discrimination on the basis of sexual orientation is inconsistently worded and not
comprehensive. For example:
(a)
the New South Wales law refers to “homosexuality” only. This means that it
does not cover heterosexuality and has only limited application to bisexuality
(that is, covering only the homosexual aspects of a person’s life);57 and
(b)
some states refer to “sexuality”58, while others refer to “sexual orientation”.59
Most States and Territories have enacted legislation which identifies sex and/or
gender identity as a separate ground of discrimination. This lacks consistency and in
some cases, the terminology used is inadequately narrow and excludes certain
people. For example:
(a)
the Western Australian Act is very narrow and only prohibits discrimination on
the ground of “gender history” against a “gender reassigned person”.60 This
limits the coverage to people who have obtained legal recognition of their
preferred sex, which requires a reassignment (medical or surgical)
procedure.61 This does not cover people who do not wish to, or are unable, to
undergo this procedure;62
(b)
neither the NT Act nor the Tasmanian Act contains a separate gender identity
ground.
Both include “transsexuality” within their sexuality or sexual
orientation ground. This may be considered inappropriate given that a
person’s sex or gender identity is a distinct matter from their sexuality; 63
(c)
no State or Territory refers to “intersex”, although several refer to
“indeterminate sex”.64 The exceptions are WA, the NT and Tasmania, which
are silent on this ground. The position of people who are intersex in these
jurisdictions is therefore uncertain.65
Queensland, Tasmania and Victoria also provide for “lawful sexual activity” as a
ground of discrimination.66
s. 4(1), Anti-Discrimination Act 1977 (NSW) (NSW Act)
s.7(n) Anti-Discrimination Act 1991 (Qld) (Qld Act); pt3 Equal Opportunity Act 1984 (SA) (SA Act); s.7(1)(b)
Discrimination Act 1991 (ACT) (ACT Act); s.19(1)(c) Anti-Discrimination Act (NT) (NT Act)
59 s.26 Equal Opportunity Act 1995 (Vic) (Current Victorian Act); s.6(1) Equal Opportunity Act 2010 (Vic) (New
Victorian Act, whose key provisions will come into effect on 1 August 2011; pt IIB Equal Opportunity Act 1984
(WA) (WA Act); s.16(c) Anti-Discrimination Act 1998 (Tas) (Tasmanian Act)
60 Part IIAA, s4(1) and s435AA WA Act
61 s3, Gender Reassignment Act 2000 (WA)
62 Neil Rees, Katherine Lindsay and Simon Rice, Australian Anti-Discrimination Law: Text, Cases and
Materials (The Federation Press, 2008), page 382
63 Ibid.
64 s 38A, NSW Act; s.4(1) Current Victorian Act; Dictionary (“gender identity”), Qld Act; s.5(5) SA Act; s 2, ACT
Act; Dictionary (“gender identity”), Western Australian Act.
65 The Discussion Paper notes that the Northern Territory and Tasmania may cover intersex conditions under
their disability/impairment provisions, but that this is not clear. It also states that disability/impairment
discrimination provisions may also be relevant more generally, as intersex conditions are seen as genetic
conditions: above at n1, footnotes 40-41, page 17
66 s.7(1) Qld Act; s.16(d) Tasmanian Act; s.6(d) Current Victorian Act
58
18
59.
The exemptions provided in State and Territory anti-discrimination legislation also
vary widely, resulting in uneven protection and inconsistent outcomes between
jurisdictions. For instance:
(a)
the NSW Act includes an exemption for discrimination in employment by a
small business (that does not exceed five employees),67 while this does not
exist in, or is being phased out of,68 other State and Territory legislation;
(b)
the Victorian Act includes a broad exemption which makes discrimination
lawful where “necessary” for the respondent to “comply with the ...
[respondent’s] genuine religious beliefs or principles”69. In other States and
Territories, religious exemptions tend to be more qualified and contained, for
example, to service provision by religious institutions; and
(c)
the Queensland Act has an exemption which applies in the context of
employment, if the discrimination is reasonably necessary to protect physical,
psychological, or emotional wellbeing in the care or instruction of children. 70
This exemption seems particularly inappropriate given its underlying
assumptions about people who are gender diverse. Some commentators
have remarked that it is “cruel and unreasonable and puts transgender and
intersex people alongside sex workers and people convicted of child sex
offences”.71
Application of State and Territory Legislation to the Commonwealth
60.
61.
67
An important limitation on State and Territory legislation is the extent to which it
covers people who are either:
(a)
employed by the Commonwealth; or
(b)
dealing with the Commonwealth, for example, by receiving Commonwealth
services or benefits.
While the extent of any limitation depends on the framing of individual legislation
within each jurisdiction, the recent case of Commonwealth v Anti-Discrimination
Tribunal72 illustrates the potential failure of State and Territory legislation to apply in
such circumstances:
(a)
In this case, Mr Nichols, a Centrelink customer, made a complaint under the
Tasmanian Act that Centrelink had discriminated against him on the basis of
his disability. Mr Nichols had prostate cancer, but had been asked to wait in a
queue with other customers at a Centrelink Service Centre. When asked,
Centrelink officers failed to provide Mr Nichols with a seat as a more
comfortable alternative.
(a)
On 13 June 2008, the Full Court of the Federal Court of Australia declared that
the correct interpretation of the Tasmanian Act was that there was no intention
s.38C(3)(a), s.40(3)(b); s.49ZH(3)(b)
Exists in s. 21 (see also s.20) Current Victorian Act, but is not contained in New Victorian Act, whose key
provisions commence 1 August 2011.
69 s.77, Current Victorian Act; retained in s. 84, New Victorian Act (key provisions commence 1 August 2011)
70 s. 28 Qld Act
71 R Mortensen, “A Reconstruction of Religious Freedom and Equality: Gay, Lesbian and De Facto Rights and
the Religious School in Queensland” (2003) 3(2) Queensland University of Technology Law Journal 320,
quoted in Rees, Lindsay and Rice, above at n62, page 383
72 (2008) 169 FCR 85
68
19
to bind the Commonwealth, and that the Commonwealth was not a 'person' to
which the Tasmanian Act applies. Justice Kenny also held, obiter dictum, that
the Tasmanian Anti-Discrimination Tribunal was not a “court of the state” and
therefore, could not exercise Commonwealth judicial power under the
Constitution. On this logic, the Tribunal could only exercise State judicial
power and could not bind the Commonwealth.
62.
The Nichols case raises questions about the extent to which the Commonwealth is
bound by State and Territory anti-discrimination legislation.73
63.
In this regard, it is worth noting that in this instance, Mr Nichols had an alternative
legislative mechanism – the DDA - by which he could have brought an action
against the Commonwealth. However, if his allegations of discrimination against
Centrelink had been on the basis of his sexual orientation or sex and/or gender
identity, instead of his disability, he would have had no enforceable legal recourse.
64.
This is of great concern when the extent of the Commonwealth’s public presence,
and the myriad of ways in which it can affect people’s lives, are considered. For
example:
65.
(a)
Centrelink serves 7.02 million customers annually and has 27,305
employees;74
(b)
Medicare pays in excess of $40 billion annually in benefits and has 5,705
employees;75 and
(c)
the Australian Public Service employs 162,009 people.76
Bearing this in mind, it is possible to imagine a variety of everyday situations in
which unfair discrimination occurs against individuals who are likely to have little
legal recourse under existing federal legislation. These include:
(a)
An employee in a Commonwealth department who is discouraged by the
Senior Executive from applying for promotion due to his transgender status;
(b)
a person who is subjected to sustained, intrusive and intimidating questioning
by the Australian Federal Police about her lesbian background, despite its lack
of relevance to the crime of which she is suspected (fraud);
(c)
a Medicare customer who is publicly ridiculed by counter staff for his
“effeminate” behaviour; and
(d)
an Australian Public Service (APS) employee applicant for a national security
clearance who is refused on the basis that her history of gender reassignment
surgery could expose her to blackmail, despite referees attesting to her steady
and reliable nature.
See discussion in Gabrielle Appleby, “Discrimination above the Law”, Alt LJ (2008) Vol 33:4, 235; Brendan
Gogarty and Benedict Bartl, “Binding the Monolith – Can state tribunals still hold the Commonwealth to
account following Nichols' case?” 260 Alt LJ Vol 34:1 2009; Geoffrey Kennett, “Fault Lines in the
Autochthonous Expedient: The problem of State tribunals” (2009) 20 PLR 152; Casenote: State AntiDiscrimination Law and the Commonwealth (2009) 83 ALJ 8; Human Rights Commission, Federal
Discrimination Law, p19, accessed at http://www.hreoc.gov.au/legal/FDL/index.html
74 Centrelink Annual Report 2009-2010, accessed at www.centrelink.gov.au
75 Medicare Annual Report 2009-2010, accessed at www.medicare.gov.au
76 APS Commission, State of the Service 2008-2009 Report, accessed at
http://www.apsc.gov.au/stateoftheservice/index.html
73
20
66.
The impact on individuals of such everyday incidents is damaging and ongoing. For
example, The Gender Centre has documented incidents in government service
provision where transgendered people have decided against claiming their welfare
entitlements because they have experienced unfair or insensitive treatment from
Centrelink in the past. Others are reluctant to attend health services or residential
services such as refuges, even where it is essential to their health and wellbeing. 77
This leaves people vulnerable to homelessness, poverty and violence.
67.
The Law Council considers that federal laws are needed to redress these kinds of
situations. Formal prohibitions direct attention to LGBTI issues and set values and
principles that reflect the basis on which all Australians should be treated. Laws and
policies educate the wider population on acceptable standards of behaviour.
68.
Hopefully, formal federal prohibitions will also decrease the number of people who
are LGBTI – particularly youth – who are currently over-represented in statistics of
homelessness, depression, mental health disorders and suicide.
Ability of federal legislation to cover the field
69.
The Law Council considers that it is, however, important to highlight to stakeholders
that any new federal legislation will not automatically replace State and Territory
legislation, and may not override any defects.
70.
This will depend on:
(a)
the scope of powers available under the Australian Constitution. While the
Commonwealth does have a number of heads of power which are relevant,
the States and Territories may be able to legislate on a broader range of
subject matter than the Commonwealth.78 There may also be restraints on any
application to State bodies and State employees, although most federal antidiscrimination laws bind States and State instrumentalities;79 and
(b)
the way in which the instrument is drafted.
71.
Federal legislation can have an impact on the validity of State or Territory legislation
to the extent that the latter is inconsistent with the Commonwealth law. Under
section 109 of the Constitution, the law of the Commonwealth prevails and the law
of the State is inoperative to the extent of this inconsistency.80 A section 109
inconsistency can arise where there is a direct conflict between the State and
Commonwealth law,81 or a textual collision between the laws.82
72.
A section 109 inconsistency can also arise if the Commonwealth Parliament
demonstrates an intention to make a law which will completely, exhaustively or
exclusively govern the particular conduct or matter to which it is directed, and a
77
The Gender Centre, Concerns for Clients When Accessing Government Agencies or Service Providers,
available at http://www.gendercentre.org.au/concerns_for_clients_kit.htm, accessed 12 November 2010
78 See discussion of Constitutional powers above.
79 See s.13(1) DDA; s.6 RDA; s.13 ADA, cf. s.12(1) SDA. The Australian Government noted in its Senate
Standing Committee on Legal and Constitutional Affairs Effectiveness of the SDA in Eliminating Discrimination
and Promoting Gender Equality: Government Response that the ADA, DDA and RDA all bind States and
State instrumentalities, while the SDA does not bind the States and State instrumentalities unless expressly
provided for. The Government recognised that the other Commonwealth anti-discrimination legislation has a
wider coverage than the SDA and undertook to consider this recommendation as part of its consolidation
project: Rec 11, page 7; above at n52.
80 Butler v Attorney-General (Victoria) (1961) 106 CLR 268.
81 University of Wollongong v Metwally (1984) 158 CLR 447 at 455-6 per Gibbs CJ, at 483-4 per Dawson J.
82 Miller v Miller (1978) 141 CLR 269 at 275 per Barwick CJ.
21
State Parliament attempts to govern the same conduct or matter.83 This type of
inconsistency is sometimes described as arising from the Commonwealth’s intention
to ‘cover the field’.84
73.
Generally, the Commonwealth approach is to state expressly that the federal
legislation is not intended to “cover the field”:85
(a)
For example, this approach was taken in the context of the RDA following the
decision in Viskauskas v Niland,86 in which the High Court considered the
relationship between the Commonwealth Act and the Anti-Discrimination Act
1977 (NSW).
(b)
In Viskauskas, the High Court found that there was an inconsistency apparent
from the fact that both legislatures had enacted laws upon the same subject
matter in a manner that displays an intention to ‘cover the field’.
(c)
In an attempt to avoid or at least limit the extent of inconsistency disclosed by
Viskauskas, the Commonwealth Government inserted section 6A into the RDA
to make its legislative intentions clear. Section 6A provides that the RDA is
not intended to “exclude or limit the operation of a State or Territory that
furthers the objects of the Convention and is capable of operating concurrently
with this Act”.
74.
An express statement of this kind by Parliament has been found by the High Court
to be a strong indication of whether or not the Commonwealth does in fact intend to
“cover the field”.87
75.
However, a federal law in this area would greatly assist the harmonisation process
of State and Territory legislation being undertaken by SCAG. Providing a federal
best practice model for the prohibition of discrimination based on sexual orientation
and sex and/or gender identity could also facilitate a roll-on effect at State and
Territory level.
Benefits of Prohibiting Vilification and Harassment on the Basis
of Sexual Orientation and Sex and/or gender Identity
76.
A range of social research has found that LGBTI Australians experience high levels
of stigma, homophobia, verbal abuse, property damage and hate-motivated
assault.88 This has direct and devastating results, including high levels of
depression and suicide amongst LGBTI communities.
77.
The Law Council considers that federal anti-vilification and harassment laws should
be introduced to prohibit this conduct specifically. It considers that such legislation
has an important educative role in signalling to the community that such actions are
unacceptable. It notes that this role was advocated by several witnesses at the
83
Ex parte McLean (1930) 43 CLR 472 at 483 per Dixon J.
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489 per Isaacs J.
85 See SDA ss.10(3), 11(3), 11A(3); DDA s.13(3) (but see s.13(3A); s.12(3) ADA
86 (1983) 153 CLR 280.
87 See for example University of Wollongong v Metwally (1984) 158 CLR 447, 446 per Gibbs CJ; 460-1 per
Mason J; 469 per Murphy J; 472 per Wilson J; 474 per Brennan J; 483 per Dawson J. Cf Greg McCarry,
‘Landmines Among the Landmarks: Constitutional Aspects of Anti-Discrimination Laws’ (1989) 63 Australian
Law Journal 327.
88
Summarised in the Research Paper, above at n3
84
22
Senate Sexuality Bill Inquiry of 1997 in response to arguments that the existing
legislation prohibiting violence and assault provided sufficient redress.89
Vilification
78.
Vilification90 generally refers to communications made in public that incite “hatred
towards, serious contempt for, or severe ridicule” of a person or group of people on
the ground of their sexual orientation and sex and/or gender identity. This may
include graffiti, comments made on radio or television, online material or public
verbal abuse.91
79.
New South Wales, Queensland, the Australian Capital Territory and Tasmania
prohibit vilification on the grounds of sexual orientation and gender identity.92
Except for Tasmania, all of these jurisdictions make a distinction between vilification,
which is a civil wrong, and serious vilification (for example, threatening physical
harm to person or property), which is a criminal wrong.93
80.
As with discrimination prohibitions, there are differences in coverage between the
States and Territories which include provisions against vilification. For example:
(a)
in relation to sexual orientation, NSW only covers homosexual vilification and
it is therefore not unlawful to vilify people on the ground of their
heterosexuality;94
(b)
Tasmania covers gender identity under “sexual orientation”.95 As discussed
above, this may be considered inappropriate.
(c)
Tasmania also covers “lawful sexual activity”.96 This could be broad enough,
for example, to cover the vilification of promiscuous people or legal sex
workers.
At the federal level, vilification is most heavily emphasised in the RDA context.97 Under
the RDA, vilification is a civil rather than a criminal wrong.98 The Law Council notes,
however, that criminal sedition offences based on factors including race exist under the
federal Criminal Code.99
89
Chapter 4, paragraph 4.4, above at n37
This section assumes that the introduction of vilification provisions has a Constitutional basis of power. The
Law Council notes that this issue caused some debate in the Senate Sexuality Bill Inquiry of 1997: Chapter 2
and Chapter 3, paragraph 3.18, Ibid.
91 As described in Discussion Paper, above at n1, page 12
92 Pt3A Div 5 (“transgender” vilification) & Pt 4C Div 4 (“homosexuality” vilification) NSW Act; s.124A (grounds
of “sexuality” and “gender identity”) Qld Act; pt 6 (“sexuality” vilification); ACT Act; s. 19 (“public act inciting
hatred on ground of sexual orientation”) Tasmanian Act
93 ss.49ZTA and 38T of the NSW Act; ss.124A(1) and 131A(1) of the Qld Act; ss.66 and 67 of the ACT Act
94 Pt 4C, Div 4, NSW Act
95 s.19, Tasmanian Act
96 Ibid.
97 Part IIA, RDA
98 The Senate rejected an attempt to enact Commonwealth criminal racial vilifications in 1994 – Rees, Lindsay
and Rice, above at n62, p 528.
99 These are currently contained in subsection 80.2(5) of the Criminal Code, which makes it an offence to urge
a group or groups distinguished by race, religion, nationality or political opinion to use force or violence against
another group or groups distinguished by the same factor, in circumstances where the use of force or violence
would threaten the peace, order and good government of the Commonwealth. Schedule 1, Item 35 of the
National Security Legislation Amendment Bill 2010 replaces this offence with four new offences, which include
force or violence against either groups or individuals distinguished by race, religion, nationality, national or
ethnic origin or political opinion, in circumstances including where the peace, order and good government of
the Commonwealth is unthreatened. The Bill was passed by the House of Representatives on
90
23
81.
It is a criminal offence under the DDA to incite the doing of an act that is unlawful
(for example, discrimination).
This is punishable by up to six months
imprisonment.100
82.
Generally, there is an attempt in existing anti-vilification laws to balance the right to
live free from vilification with the right to communicate freely. This is done, for
example, by placing an emphasis on public rather than private conduct, and
providing exemptions where the conduct has been made in circumstances which
were “reasonable” and “in good faith”. These may include:
(a)
public acts done for academic, artistic, scientific or research purposes, or
otherwise in the public interest;
(b)
communications which are subject to a defence of absolute privilege in a
defamation proceeding; and
(c)
fair reports of vilification acts, for example, by journalists.101
83.
The Law Council also notes the comments in the Discussion Paper that vilification
has generally been difficult to prove in State and Territory jurisdictions, given the
necessity to show that the respondent’s conduct was objectively capable of urging
or arousing other people to feel hatred towards the complainant. It is insufficient to
show that the respondent’s conduct merely conveyed his or her own hatred or
serious contempt.102
84.
It is important to ensure that any federal anti-vilification laws can be used effectively
for the purpose for which they are introduced. In this regard, it may be useful to
consider factors such as:
(a)
whether the grounds of sexual orientation and vilification need be the sole
reason for the public conduct – under the RDA, for example, race needs to be
only one of the reasons, and not necessarily the dominant reason, for the
conduct;103
(b)
the applicable standard of objectivity – this could, for example:
(i)
emphasise that this should be viewed from the perspective of a
reasonable member of the target group, rather than the general public;
(ii)
require regard to be given to the history of prejudice and discrimination
against the target group;104 and
20 October 2010 and the Senate on 15 November 2010, but had yet to receive Royal Assent on
22 November 2010. The Law Council has previously submitted that these new offences should not be colocated in the Criminal Code, but are best considered as part of federal anti-vilification laws. For more
information, see Law Council of Australia, National Security Legislation Amendment Bill 2010 & Parliamentary
Joint Law Committee on Law Enforcement Bill 2010: Senate Legal and Constitutional Affairs Committee
Report 10 May 2010, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=93E49F25-1E4F-17FA-D2A8A2E4BFB7D50B&siteName=lca
100 s 43, DDA. Victimisation provisions in the federal anti-discrimination legislation are also criminal offences –
for example, s.42 of the DDA.
101 See for example s.66 of the ACT Act
102 Above at n1, page 12
103 Section 18B, RDA
104This is the approach suggested in the ACE Policy Paper, above at n2, page 11
24
(c)
providing the Commission with the power to instigate its own inquiries into acts
of vilification, instead of relying on individuals to bring forward complaints (see
further discussion below).
Harassment
85.
While harassment most frequently refers to sexual harassment, harassment more
generally may be conduct which offends, humiliates, intimidates, insults or ridicules
another person on the basis of a protected attribute, in circumstances in which a
reasonable person would have anticipated that this would occur.105
86.
At the Commonwealth level, only the SDA106 and DDA107 specifically prohibit
harassment.
87.
In State and Territory law, only the Northern Territory and Tasmanian Acts
specifically prohibit harassment:
(a)
the Northern Territory Act prohibits harassment on the grounds of sexuality; 108
and
(b)
the Tasmanian Act prohibits harassing behaviour on the ground of the
person’s relationship.
88.
In the other jurisdictions, a person may be able to demonstrate that conduct which
involved harassment based on his or her sexual orientation or sex and/or gender
identity amounted to unlawful discrimination,109 if he or she suffered some detriment
in an area of activity governed by the legislation.110 In this respect, however, it is
worth considering that in relation to sexual harassment, the accepted emphasis is
on the behaviour itself as a wrong, and that the additional need to demonstrate
some other disadvantage unnecessarily narrows the range of behaviour which
should be proscribed.111
89.
Given the level of prejudice, harassment and abuse experienced by LGBTI people, it
is perhaps surprising that more jurisdictions have not introduced harassment
provisions into their legislation. This may be because the vilification and/or
discrimination provisions are intended to cover this field.
90.
However, as previously discussed, establishing vilification on the grounds of sexual
orientation and sex and/or gender identity has been particularly difficult under
existing State and Territory legislation.
105
See, for example, s.17 of the Tasmanian Act
Pt2, Div3, SDA;
107 ss.35-40 DDA
108 s. 20(1)(b)NT Act
109 For example, in Daniels v Hunter Water Board (1994) EOC 92-626, a complaint of discrimination on the
ground of homosexuality in employment was successful. The relevant conduct involved constant taunting and
pranks by the complainant’s workmates based on his perceived homosexuality. This was found to be a
detriment in his employment which could have been prevented by his employer.
110 This is the case in NSW for example. The Anti-Discrimination Board of NSW advises that harassing
conduct on grounds other than sex would be considered under its broader discrimination provisions – advice
provided 12 November 2010. As well as the possibility of making out harassment or vilification in Victoria
under the definition of “discrimination” pursuant to the current Victorian Act, the Victorian Women Lawyers
also draw attention to the limited availability of civil injunctive relief under the Personal Safety Intervention
Orders Act 2010 (Vic) (in limited circumstances and with limited remedies): advice provided
12 November 2010.
111 Rees, Lindsay and Rice, above at n62, page 495
106
25
91.
There are also differences in the way in which vilification and harassment apply. For
example:
(a)
vilification may be more difficult to establish, given that it generally refers to
“hatred”, “serious contempt” or “severe ridicule”. By comparison, harassment
generally refers to behaviour where a reasonable person, having regard to all
the circumstances would have anticipated that the complainant would be
“offended, humiliated, intimidated, insulted or ridiculed”; and
(b)
vilification places an emphasis on “public” acts, whereas harassment can
extend to behaviour which is more covert; and
(c)
harassment is more likely to be directed at individuals rather than groups of
people.112
92.
For these reasons, the Law Council considers that it would be appropriate to
introduce federal provisions prohibiting harassment on the grounds of sexual
orientation and sex and/or gender identity, in addition to anti-vilification provisions.
This was also the majority view taken in the Senate Sexuality Bill Inquiry of 1997.113
93.
In a different context, the Law Council has previously advocated changes to
increase the effectiveness of sexual harassment provisions of the SDA. It has
proposed that harassment can be established where it occurs “in circumstances
where a reasonable person would have anticipated the possibility that the other
person would have been offended, humiliated or intimidated by the conduct”. This
recommendation has been adopted by the Senate SDA Inquiry and the Australian
Government.114
94.
The Law Council supports a similar definition being adopted in any provisions which
prohibit harassment on the basis of sexual orientation and sex and/or gender
identity.
95.
It is also worth considering the introduction of a positive duty on employers in certain
circumstances to take steps to prevent harassment – see discussion below.
Terminology and scope of legislation
96.
Noting that other groups are likely to go into depth on the kinds of terminology which
should be used in laws prohibiting discrimination, vilification and harassment on the
grounds of sexual orientation and sex and/or gender identity,115 the Law Council
does not propose to do this at this stage. In particular, it considers that careful
consultation with LGBTI communities will be important in ensuring that the
terminology employed in federal legislation is appropriate and not exclusionary.
97.
Nor does the Law Council, at this stage, intend to address in exhaustive detail the
proposed grounds, areas of discrimination, exemptions and remedies to be covered
by federal legislation. It anticipates that there should be further opportunities to
discuss this as a Bill is drafted.
Although the vilification provisions can generally include vilification of individuals, as well as groups – see
above description.
113 Chapter 2, Rec 1, above at n37
114 Rec 15 and Response, above at n52
115 For example, the Gay and Lesbian Rights Lobby, and the Australian Council for Equality have both drafted
papers addressing terminology issues.
112
26
98.
The Law Council considers that the Yogyakarta Principles offer useful guidance
when considering the scope of federal legislation of this kind. This extends to
guidance on the areas in which people are most likely to experience discrimination
and other detriments (see the discussion of these Principles at page 12 above).
99.
Throughout this submission the Law Council has pointed out areas in which
inconsistency creates legal uncertainty within individual jurisdictions and/or excludes
groups of people who should be entitled to protection.
100. In this context the Law Council suggests that it is worth considering:
(a)
specifically emphasising that federal legislation covers people who are
transsexual, transgender, gay or homosexual, lesbian, bisexual, heterosexual
and intersex;
(b)
the coverage of people who have relationships with persons with protected
attributes (including spouses, partners, relatives, colleagues and other
associates);
(c)
the coverage of characteristics, past or present, which are imputed or
assumed (whether or not the person actually has that attribute);
(d)
emphasising that individuals should not be required to disclose information
about their sexual orientation or sex and/or gender identity, where it is
irrelevant or unnecessary;116 and
(e)
emphasising that where people make their views clear about their preferred
sex or gender identity, a refusal to treat them as such constitutes
discrimination and/or harassment.117
101. The Law Council considers that there may be value in adopting the terminology in
relation to “gender identity” in the Bill for the Employment Non-Discrimination Act of
2009 currently before the United States Senate, and set out in the Discussion
Paper:
116
(a)
In the Bill, “gender identity” refers to “the gender-related identity, appearance,
or mannerisms or other gender-related characteristics of an individual, with or
without regard to the individual’s designated sex at birth”.118
(b)
As the Discussion Paper states, this definition has advantages over existing
narrower Australian State and Territory definitions that only protect people
who identify as a member of the “opposite” or “other” sex.
(c)
It also avoids fixed, permanent notions of gender identity.119 This moves away
from definitions under which a person “lives, or seeks to live, as a member of
his or her preferred gender.”120 A plurality of gender identities may exist.121
See recommendations in Australian Human Rights Commission, Sex Files: the Legal Recognition of Sex in
Documents and Government Records: Concluding Paper of the Sex and Gender Diversity Project March 2009
Report, page 5, available at http://www.hreoc.gov.au/genderdiversity/SFR_2009_Web.pdf, accessed
12 November 2010
117 This was raised as an example of unfavourable treatment by a number of witnesses appearing before the
Senate Sexuality Bill Inquiry in 1997.
118 Set out in page 11 of the Discussion Paper, above at n1
119 The Law Council notes, however, the advice of the Victorian Women Lawyers that the definition of “gender
identity” has been problematic in Victorian legislation is it tends to imply that there are only two clear genders,
and denies the plurality of identities that occur in reality: above at n110.
120 Page 7, Research Paper, above at n3
27
For example, many cross-dressers live and identify as one sex, but regularly
take on the appearance of the opposite sex to satisfy a deep personal need.122
Their cross-dressing, however, could result in unfair discrimination.123
102. Another way to address this could be by incorporating the term “gender expression”,
as proposed by the Australian Coalition for Equality.124
103. The Victorian Women Lawyers have emphasised that linking LGBTI discrimination
to “sex and/or gender identity” also draws attention to the fact that much community
discrimination is based on inflexible, binary gender stereotypes of how women and
men ought to behave and interact. Not only does this discriminate against persons
within LGBTI communities, it also fundamentally limits all members of society. 125
Special measures
104. The Law Council supports the view, which is generally accepted across antidiscrimination legislation that circumstances exist in which special measures
provisions are appropriate to achieve substantive equality within the community.126
These provisions are designed to enable particular groups of people to overcome
entrenched and historical disadvantage. They are a means by which policies and
programs can be implemented to ensure equal enjoyment of human rights and
fundamental freedoms.
105. In this context, it notes that Article 2 of the ICCPR requires States to “adopt such
laws or other measures as may be necessary to give effect to the rights recognized
in the present Covenant.”127 International law experts discussing the principle of
equality set out in Article 26 of the ICCPR have also commented that:
“When certain groups of the population have traditionally been subjected to
especially grievous detrimental treatment at the hands of State organs or other
groups of the population, then mere statutory prohibitions of discrimination are
often insufficient for guaranteeing true equality. In these cases, States must
also resort to positive measures of protection against discrimination such as
temporary privileges for traditionally disadvantaged groups.”128
106. The Law Council considers that such provisions should be framed as a necessary
part of a strategy for LGBTI Australians to achieve substantive equality within the
In a similar vein, people can experience sexual orientation as a fluid concept – for example, those who
identify as LGBTI later in life.
122 Gender Identity Centre, Cross-Dressing Fact Sheet, accessed 8 November 2010 at
http://www.gendercentre.org.au/cross_dressing_information.htm; see also The Seahorse Society of NSW
Q&A Factsheet at http://www.seahorsesoc.org/faqs.html, accessed 8 November 2010
123 The Law Council notes, however, that this was a contentious issue in the 1997 Senate Sexuality Bill
Inquiry. The Inquiry recommended that people who did not identify as and seek to live as a member of the
opposite sex should not be covered by legislation. It considered that there was a need for certainty and
validity of a change of status, and that gender identity was generally considered amongst respondents to be
long term or well established. Concerns were also raised by the Attorney-General’s Department regarding the
extent to which the ICCPR would cover transgender people with a less permanent gender identity. Senate
Sexuality Bill Inquiry, Chapter 1, Rec 5 and Chapter 2 discussion, above at n37.
124 Above at n2, page 6
125 Above at n110
126 Rees, Lindsay and Rice, above at n62, page 455
127 Article 2.2, ICCPR, above at n14
128 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (1993) N.P. Engel,
Strasbourg, pp.459-460. As part of his discussion of Article 26, Nowak also states that “the spectrum of State
measures to protect against discrimination range from appropriate education in elementary school to criminal
prohibitions of advocacy of racial hatred or religious discrimination”. This lends support to the view that antivilification measures could be adopted to help meet Australia’s international obligations under the ICCPR.
121
28
broader community. They should not be viewed as an exception to the principle of
non-discrimination, but integral to the meaning of the principle.
107. Relevant examples which could constitute special measures include the provision of
LGBTI-specific services, such as support groups, medical services, accommodation
providers and legal services. Employment and hiring policies which specifically
support LGBTI employees are also possible examples.
108. It also notes that in the international racial discrimination law context, special
measures must be “designed and implemented on the basis of prior consultation
with affected communities and the active participation of such communities.”129
109. The Law Council considers that this principle should apply to the framing of special
measures more generally.
Complementary actions by the Australian Government
110. The Discussion Paper asks whether there are any other actions which should be
taken by the Australian Government to protect and promote the rights of LGBTI
people more effectively in Australia.
111. The Law Council considers that the Yogyakarta Principles, which outline actions that
States should take to address discrimination based on sexual orientation and sex
and/or gender identity, provide useful guidance in this context.
112. More specifically, the Law Council proposes that the actions set out below should
form a high priority for complementary Australian Government action. It notes that
there are opportunities to incorporate such actions into the development of the new
Australian Government Action Plan on Human Rights,130 and in some cases, the
consolidation of federal anti-discrimination legislation.
General measures supporting the introduction of federal anti-discrimination laws
113. General measures to increase the new legislation’s effectiveness and improve
compliance amongst the community against Australians who are LGBTI could
include the establishment of a new Australian Human Rights Commissioner for
LGBTI issues. The Commissioner’s duties under the new laws would include
increasing education and awareness of these issues amongst the broader
community.
114. A focus on how the APS can improve its own compliance as it develops and
implements programs affecting LGBTI Australians is fundamentally important. This
requires action to be taken at a number of levels, including specific, achievable
targets. Measures to achieve this goal could include:
129
Committee on the Elimination of Racial Discrimination, General Comment 32: The meaning and scope of
special measures in the International Convention on the Elimination of Racial Discrimination, page 5, available
at http://www2.ohchr.org/english/bodies/cerd/comments.htm, accessed 20 November 2010
130 Attorney-General Hon Robert McClelland MP and Minister for Foreign Affairs Hon Stephen Smith MP,
“Reaffirming our Commitment to International Human Rights Obligations”, Joint Media Release, 21 April 2010,
available at
http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter
_21April2010-ReaffirmingourCommitmenttoInternationalHumanRightsObligations; accessed
20 November 2010
29
(a)
introducing an Australian Government agency or unit with responsibility for
LGBTI issues. This would best be placed in a central agency such as the
Department of the Prime Minister and Cabinet;
(b)
conducting APS training on LGBTI issues at all levels, both for program and
policy staff;
(c)
auditing the extent to which Commonwealth (and Commonwealth-funded)
services provide fair treatment and access to Australians who are LGBTI;
(d)
incorporating measurable, monitored targets on LGBTI issues, including as
Key Performance Indicators in Senior Executive Staff performance
agreements; and
(e)
introducing support schemes for APS employees who are LGBTI.
115. Several of these initiatives could be implemented as part of the broader APS human
rights training and performance measures which the Law Council considers are vital
if the Government is to meet its human rights commitments in response to the
National Human Rights consultations.131
116. The Law Council notes that there are precedents within the APS for the kinds of
comprehensive measures set out above, particularly as part of targeted efforts to
address Indigenous disadvantage.132 Such strategies are particularly needed in
relation to LGBTI communities, given that:
(a)
service providers often worry that they lack the knowledge to deal sensitively
and appropriately with LGBTI communities;133 and
(b)
people within these communities have experienced difficulty in accessing fair
and sensitive treatment from government service providers.134
Flow on Changes
117. Flow-on changes to other legislation are necessary to support the introduction of
these new anti-discrimination laws.
118. Changes to the SDA are required to protect same sex couples from discrimination
on the basis of their relationship status. To achieve this, the Senate SDA Inquiry
has previously recommended that references in the SDA to “marital status” should
be replaced with “marital or relationship status”. The Government has responded
that it intends to consider this recommendation further, noting that there may be
131
Law Council of Australia, Refining the Australian Public Service Values: Australian Public Service
Commissioner, 2 August 2010, available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=5446C54C-F0EE-4611-12DC261193C5E464&siteName=lca
132 For example, see the Department of Education, Employment and Workplace Relation’s Reconciliation
Action Plan for 2009-2011, at
http://www.deewr.gov.au/Department/Documents/Publications/ReconciliationActionPlan_2009-2011.pdf,
viewed 11 November 2010; also W Gray and WG Sanders, “Views from the Top of the “Quiet Revolution”;
Secretarial Perspectives on the New Arrangements in Indigenous Affairs: Discussion Paper No 282/2006”;
Centre for Aboriginal Economic Policy Research, Australian National University
133 The Gender Centre, Concerns for Service Providers When Assisting Transgender Clients Paper, available
at accessed 12 November 2010
134 Above at n77
30
effects on State and Territory laws relating to adoption, artificial conception
procedures and the recognition of changes of sex on cardinal documents.135
119. Changes are also needed to the Fair Work Act to clarify that:
(a)
the protections against discrimination in employment extend to grounds of sex
or gender identity, as well as “sexual preference” and “sex”;136 and
(b)
the ground of “marital status” is amended in line with the SDA changes in the
paragraph above.
120. There may be additional instances in which changes to federal legislation are
needed to support the new anti-discrimination laws. Existing legislation may operate
to exclude inadvertently, or otherwise discriminate against, Australians who are
LGBTI. It may also be inconsistent with State and Territory terminology:
(a)
For example, the definition of “de facto partner” in the Acts Interpretation Act
1901 (Cth), refers to persons “of the same sex, or a different sex”.137 This may
operate to exclude persons of indeterminate gender from being recognised as
de facto partners.
(b)
By way of contrast, the comparable Queensland legislation includes a broader
definition. It states “de facto partners” will be recognised “regardless of
gender”.138
121. In 2007, the Commission undertook a review of federal legislation which led to
amendments to over 80 Commonwealth laws to remove discrimination against same
sex couples.139 A similar audit should be considered in relation to sexual orientation
and sex and/or gender identity-based discrimination, noting that the Australian
Government has supported removing discriminatory legislation.140 The Commission
will require adequate resources to undertake this work.
Consolidation of anti-discrimination legislation
122. The Australian Government has announced its intention to combine federal antidiscrimination laws into a single comprehensive Equality Act (the Equality Act).
Therefore, legislation to address discrimination on the basis of sexual orientation
and sex and/or gender identity will form part of the Equality Act.
123. As part of this consolidation process, the Law Council supports the consideration of
new mechanisms which will increase the Equality Act’s effectiveness in eliminating
discrimination and promoting equality.
124. These include providing expanded powers to the Commission to address systemic
discrimination and promote substantive equality. The Law Council has recently
supported introducing such powers in a submission on the Sex and Age
Discrimination Legislation Amendment Bill 2010, to:
135
Rec 4, page 4, above at n52
See discussion above
137 s. 22A, Acts Interpretation Act 1901 (Cth)
138 s. 32DA(5) Acts Interpretation Act 1954 (Qld)
139 Commission, Same Sex: Same Entitlements Inquiry Report (2007), available at
http://www.hreoc.gov.au/human_rights/samesex/index.html, accessed 18 November 2010
140
In 2009, Australian Labor supported the removal of discrimination on the basis of a person’s sexual
orientation or gender status from Commonwealth legislation: Australian Labor National Platform and
Constitution 2009, Chapter 7, page 16, available at http://www.alp.org.au/australian-labor/our-platform/,
accessed 18 November 2010
136
31
(a)
empower the Sex and Age Discrimination Commissioners to investigate
systemic and/or pervasive discriminatory practices at their own initiative,
without needing to rely on a formal individual complaint and without requiring
the Commission’s consent; and
(b)
enable the Commissioners to report to the Attorney-General on any
organisation that fails to implement the recommendations of the
Commissioners following an investigation.141
125. Such changes would help bring federal laws into line with other legislative regimes
which are directed at preventing and prohibiting discrimination through proactive
compliance mechanisms. For example:
(a)
under the Equal Opportunity Act 2010 (Vic) (the New Victorian Act), the
Victorian Equal Opportunity and Human Rights Commission is empowered to:
(i)
investigate serious systemic discrimination;
(ii)
engage directly with employers and other duty holders and require
compliance or an enforceable undertaking to address discrimination; and
(iii)
conduct public inquiries into serious discrimination issues of public
significance with the consent of the Attorney-General.142
126. The New Victorian Act also expresses a positive duty on employers in certain
circumstances to take reasonable and proportionate measures to eliminate
discrimination, sexual harassment and victimisation.143
127. Under the Commonwealth Fair Work Act, the Fair Work Ombudsman is also
empowered to enforce compliance with the provisions of the Act and investigate
complaints of adverse action by an employer against an employee on a prohibited
ground, without requiring an individual complaint.144
128. The Law Council considers that such powers would be particularly valuable tools in
the current context, given that relatively few complaints are lodged under State and
Territory anti-discrimination statutes on the grounds of sexual orientation and sex
and/or gender identity.145 This is the case despite evidence of widespread
discrimination on the basis of these attributes. The current legislation may place an
undue onus on individuals who are already in vulnerable situations.
As
Anna Chapman writes, “people may be reluctant to pursue a complaint under the
legislation due to factors such as fear of coming out, fear that complaining will lead
to retaliation and a lack of knowledge of the legal protections that are available”.146
141Law
Council of Australia, Sex and Age Discrimination Legislation Amendment Bill 2010: Submission to
Senate Committee on Constitutional and Legal Affairs, pages 24-26; available at
http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=532A7A5C-C91E-AA92-A10202FEBC627269&siteName=lca
142 New Victorian Act, Part 9, Division 1 (key provisions commence 1 August 2011)
143 s15, New Victorian Act
144 Fair Work Act Part 5-2(in particular, s.682(1)(c)). The Fair Work Act also reverses the proof for
discrimination claims, so that where an employee alleges that they have been the subject of prohibited
adverse action by their employer, it is presumed that the action was taken for that reason or with that intent
unless the employer proves otherwise: s.361.
145 Research paper page 5, above at n3
146 Ibid.
32
Same-Sex Marriage
129. The Law Council welcomes all efforts to remove formal discrimination against samesex couples and to ensure that such couples have access to the same benefits and
entitlements as heterosexual couples.
130. Federal laws prohibiting discrimination, vilification and harassment on the basis of
sexual orientation and sex and/or gender identity would form an important step in
this regard.
131. However, the Law Council believes that without amendment to the Marriage Act
1961 (Cth) (the Marriage Act), at least one form of discrimination will remain.
132. The Law Council believes that marriage is a civil right which should be made
available to all people regardless of their sex.
133. The Law Council welcomes the current Government’s swift move to amend a range
of laws which discriminate against same-sex couples but does not support its
position that it will not amend the Marriage Act. Instead, the Government
encourages the development of nationally consistent, state-based relationship
recognition legislation.
134. A relationships register is not an appropriate substitute for same-sex marriage. A
relationships register still allows the State to preserve a privileged class of
relationships not open to same-sex couples.
135. As previously stated, the Law Council will provide its continued support for the
Marriage Equality Amendment Bill 2010 (Cth) as a means to eliminate discrimination
for same-sex couples.
Legal Recognition of Sex in Documents and Government Records
136. The Law Council notes that gaining legal recognition of sex in documents and
government records is a key concern of many people who are sex and gender
diverse.147
137. The Commission’s Sex Files: the Legal Recognition of Sex in Documents and
Government Records: Concluding Paper of the Sex and Gender Diversity Project
report explores this issue in depth, and makes a number of recommendations for
responses at both the Commonwealth and State and Territory Government levels.
138. The Law Council supports consideration of this report by all levels of government.
Conclusion
139. The Law Council considers that federal legislation to address discrimination,
vilification and harassment would allow LGBTI communities to engage in an equal
society, free from fear of violence, exclusion or humiliation. Such prohibitions are
particularly important in public settings where institutionalised discrimination is
widespread, such as schools and workplaces.
147
Australian Human Rights Commission, Sex Files: the Legal Recognition of Sex in Documents and
Government Records: Concluding Paper of the Sex and Gender Diversity Project March 2009 Report, page 5,
available at http://www.hreoc.gov.au/genderdiversity/SFR_2009_Web.pdf, accessed 12 November 2010
33
140. Introducing this federal legislation is also important in assisting Australia to meet its
international human rights obligations and act as an international leader in the field.
141. While legislation is not the only answer, it is an integral part of realising positive
change. This point was well summarised by the Australian Council for Lesbian and
Gay Rights (Western Australia) in its evidence before the 1997 Senate Sexuality Bill
Inquiry, as follows:
“... there are really two different issues in relation to this legislation. One is the
fact that it provides legal remedy when you are discriminated against. But, in
some ways more importantly, it sets a benchmark, it takes a stand and says,
“This discrimination is unacceptable”... When the parliament takes a stand on
behalf of the community and says, “Look, this is wrong. We are providing a
beacon, a sentinel of what is just”, that is often more important than the actual
practicality of the bill itself”.148
142. The Law Council notes that evidence of Australian community support adds weight
to the view that these changes are well overdue. For example, this was
demonstrated in a 2009 Galaxy Poll conducted on behalf of the Australian Coalition
for Equality. Of the 1,100 respondents surveyed, 85 per cent supported introducing
federal laws protecting Australians from discrimination on the grounds of sexual
orientation and gender identity. In comparison, just ten per cent of surveyed
participants opposed such laws.149
143. The Law Council looks forward to further opportunities to discuss in more detail the
drafting of new federal legislation prohibiting discrimination, vilification and
harassment on the basis of sexual orientation or sex and/or gender identity.
148
Evidence, Australian Council for Lesbian and Gay Rights (WA), page 570, quoted at Chapter 2,
paragraph 2.112, above at n37
149 Community Attitudes to Discrimination Legislation Report, prepared by Galaxy Research for the Australian
Coalition for Equality, June 2009, available at http://www.coalitionforequality.org.au/GalaxyPollAntiDiscrimination.pdf; accessed 12 November 2010. Galaxy Research surveyed the attitudes of 1,100
respondents aged 16 years and older distributed throughout Australia. The data was weighted by age, gender
and region and quotas based on these attributes were applied.
34
Attachment:
Profile of the Law Council of Australia
The Law Council of Australia is the peak national representative body of the Australian
legal profession. The Law Council was established in 1933. It is the federal organisation
representing approximately 50,000 Australian lawyers, through their representative bar
associations and law societies (the “constituent bodies” of the Law Council).
The constituent bodies of the Law Council are, in alphabetical order:

Australian Capital Territory Bar Association

Bar Association of Queensland Inc

Law Institute of Victoria

Law Society of New South Wales

Law Society of South Australia

Law Society of Tasmania

Law Society of the Australian Capital Territory

Law Society of the Northern Territory

Law Society of Western Australia

New South Wales Bar Association

Northern Territory Bar Association

Queensland Law Society

South Australian Bar Association

Tasmanian Bar Association

The Victorian Bar Inc

Western Australian Bar Association

LLFG Limited (a corporation with large law firm members)
The Law Council speaks for the Australian legal profession on the legal aspects of
national and international issues, on federal law and on the operation of federal courts and
tribunals. It works for the improvement of the law and of the administration of justice.
The Law Council is the most inclusive, on both geographical and professional bases, of all
Australian legal professional organisations.
35