3RD BIENNIAL (FIRST NATIONAL) LGBTIQ DOMESTIC VIOLENCE CONFERENCE 2011
By Stepan Kerkyasharian AO
President
Anti-Discrimination Board of New South Wales
Draft Speech
Introduction
In 2011 ACON published a GAP analysis of NSW domestic violence support services in relation to gay, lesbian, bisexual, transgender and intersex (GLBTI) communities in NSW. One of the key findings of the report was that there is a significant variation in the services provided regarding their competence and confidence in working with GLBTI community members and understanding their specific needs, while some service providers lacked basic awareness.
One of the main themes emerging from the ACON survey was that that some service providers adopted a non-discriminatory approach that frequently resulted in a justification for not seeking to identify gender, sex or sexuality of those people seeking support. Also many services appeared to lack an understanding of the difference between sex and sexuality particularly in relation to intersex and transgender people.
When faced with inadequate or inappropriate service provisions, it is important that members of the GLBTIQ community know what can be done about it including how to use the Anti-Discrimination Act 1977 (NSW) and seek redress when there is discrimination in the delivery of services in the domestic violence context.
Or when you are a victim of domestic violence this can have a dramatic impact on your employment. If you think about it you may need to take some time off because at the very least you will be under a great deal of stress, you may have an injury as a result of domestic violence or have an appointment with the police a counsellor a court date; How is your employer going to treat you if you are a member of the LGBTIQ community. Will you be treated less favourably than a straight employee in the same or similar circumstances?
Overview of Talk
At this First National LGBTIQ domestic Violence Conference I wanted to talk to you about how the Anti Discrimination Act 1977 works in the context of LGBTIQ community and domestic violence; including discussing the grounds of discrimination and the areas of life in which the law applies and the most appropriate way in which the Anti-Discrimination Act 1977 and the Anti-Discrimination Board can help you. I will then talk about the numbers of complaints we received in our last financial year 2009-2010 and how I believe that these statistics do not necessarily reflect what is really happening. Finally I will talk about the other ways in which the Anti-Discrimination Board works with the LGBTIQ community to address discrimination in all areas of life.
Substantive Part of talk
The Anti-Discrimination Act – Grounds and Areas Appropriate for Domestic Violence
If a person in the GLBTIQ community suffers from domestic violence and needs to access vital services such as medical support through hospitals or medical centres, or protection from the police, or access to the administration services of courts or seeks legal advice, they are entitled to expect and receive the same appropriate treatment as anyone else in the community.
If there is domestic violence at home and the only option is to leave immediately with the clothes on your back, no-where to live and very limited resources, members of the LGBTIQ community need to be able to access a refuge, a safe haven away from the violence, or the threat of violence, or if the police are called for help and assistance, you need to know that you will be treated with respect, taken seriously, that the standard discriminatory stereo-typing is not applied in your circumstances.
You want to know that members of the LGBTIQ community will be treated with credibility and given the same domestic violence referrals to support services in the same way anyone in the community would be. That the duty solicitor will attend to your application for an interim Apprehended Violence Order and you will be treated as seriously as someone who is not member of the LGBTIQ community.
How can NSW Anti-discrimination Law Help
If frontline or support services are discriminatory in the provision of the goods or service, there are provisions in NSW law for you to make a complaint on the basis of discrimination. And it is critical for people in the LGBTIQ community that suffer from this type of discrimination take the appropriate action, as it makes the organisation, institute, or employer address discrimination more effectively, as there is nothing more threatening to some employers as the threat of legal action and negative publicity can cause very negative impacts on the business. Think about the cases you have heard about in the media.
The Anti-Discrimination Law in New South Wales in the Domestic Violence Context
There are two ways where the law in NSW can assist a member of the LGBTIQ suffering from domestic violence. In the Anti-Discrimination Act 1977 (NSW) deals with complaints that relate to discrimination in the delivery of goods or services or discrimination in the employment relationship. The Anti-Discrimination Board of New South Wales administers this legislation.
But before I describe what and how to go about making a discrimination complaint in the delivery of services or in employment in the domestic violence context, it is important to know how discrimination is defined in New South Wales; who it applies to and in what areas. Once I have provided some detail about that I will tell you about the complaint process and some of the possible outcomes.
In New South Wales discrimination means treating people ‘less favourably’ because they belong to a particular group or category of people. This is what is referred to as direct discrimination.
Indirect discrimination is where there is a rule or policy that seems fair for everyone but has a disproportionate effect on one group over another.
The Anti-Discrimination Act in this State covers the following relevant grounds of discrimination:
· Homosexuality, when some is discriminated against unfairly because they are a lesbian or gay or someone thinks they are lesbian or gay.
· Transgender status, when someone is discriminated against unfairly because they are transgender or someone thinks they are transgender
· Sexual harassment,
· Marital or domestic status (when someone is discriminated against unfairly because they are single, married, defacto, separated or widowed and includes same sex couples.
· By association such as sex of a friend or family member, when someone is discriminated against unfairly because of the sex, pregnancy, race, age marital status, homosexuality, disability or transgender status of one of their relatives, friends or colleagues.
· Victimisation, treating a person unfairly because they have made a complaint or if you think they are going to complain or made an inquiry or a witness to a complaint
These grounds of discrimination are only against the law if it happens in one of the following areas:
· Employment
· Public education
· Accommodation
· Registered clubs
· In the provision of Goods and Services, by refusing to provide the person with those goods or services or in the terms on which the other person is provided with those goods and services
Most of these areas speak for themselves, however the definition of service includes:
· services relating to banking,
· insurance and the provision of grants, loans credit or finance;
· services relating to entertainment, recreation or refreshment,
· Services relating to transport or travel,
· Services of any profession or trade,
· Services provided by a council or public authority,
· Services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
The definition of services has been interpreted broadly by the Courts and would include: the police, court administration, refuge facilities, hospitals, medical centres, solicitors, doctors and other domestic violence support services.
In other words, if you or you know someone in the LGBTIQ community, who has, or who is, suffering from domestic violence and has been treated less favourably by a service provider that could be either a public authority or a council or a profession, or any of the services listed above, because they are a member of the LGBTIQ community, there could be a discrimination complaint.
I cannot stress enough how important it is to make a complaint if you believe the circumstances I described are relevant, or encourage your friend or member of the LGBTIQ community to make a complaint, or at least contact the Anti-Discrimination Board’s enquiry line and get some further information.
How do you make a complaint to the Anti-Discrimination Board
In order to make a valid discrimination complaint, it has to fall under one of the grounds I talked about earlier and in one of the particular areas. If you are not sure whether your complaint is valid you can call the Anti-Discrimination Board’s enquiry line and talk to one of the Board’s enquiry officers who will talk to you about the complaint, the grounds and the areas and importantly, time limits.
Your call is confidential, free and impartial service. The Board does not take action on your enquiry but will give you information that may assist you in dealing with the situation.
If you do have a complaint, the next step is to lodge a complaint in writing and there are contact details on our website at:
www.lawlink.nsw.gov.au/adb
It is important to know that the person and/or organisation you are complaining about will be notified. However, you are protected from victimisation provisions in the legislation.
How will the complaint be treated
We will generally investigate your complaint to make sure that what has happened to you is against the law. If this is the case, we will try to conciliate your complaint. This means we will try to help you and the person or organisation you are complaining about to reach a private settlement that you both agree on. The Board is impartial in this process and does not take sides.
The settlement will depend on the circumstances of your case, on what the other parties are willing to offer and what you are willing to accept. It could be an apology, financial compensation, getting your job back, getting the service you were denied, changes to your working arrangements, and so on.
We treat all complaints confidentially, but we have to inform the organisation or person you are complaining about of the complaint. This is so we can give them a fair chance to respond to your complaint. We will not release information about your complaint to anyone else except with your permission or if law requires us to.
Most complaints are conciliated. If yours isn’t, you may go to the Equal Opportunity Division of the Administrative Decisions Tribunal. It provides a legal judgment that must be followed. Very few cases need to go to the Tribunal and in some circumstances you can ask for your details to be kept confidential.
Domestic Violence - Employment and the LGBTIQ Community
Domestic violence does affect your employment, whether it is because as a victim you are unable to attend work, or if you do you may be very stressed and upset and not able to concentrate effectively. It is extremely difficult for employees to disclose to their employer the issues they have in relation to domestic violence, but it can be even more difficult for a member of the LGBTIQ community to go to their employer and disclose issues related to domestic violence. Victims of domestic violence are reluctant to disclose it in the work place because they fear it will impact their job or career, they will be stigmatised or that their employer will not be responsive.
Employers must not respond to requests, made by members of the LGBTIQ, for leave to deal with health and legal domestic violence issues, less favourably because they belong to a particular group and that they are treated the same as other employees who are in similar domestic violence circumstances.
If a person is treated less favourably, because they belong to a particular group, when they disclose to their employer issues related to domestic violence, or requested leave etc, this may be grounds for a complaint and can be dealt with in the same way I described earlier. Again contact our enquiries line for information about employment and discrimination.
The Board’s Statistics 2009-2010
It is generally accepted that only a small percentage of discrimination is ever reported and even less the subject of a formal complaint particularly in the area of goods and services.
Also we know that many victims of discrimination are in a vulnerable or disadvantaged position and the process of making a formal complaint and seeing it through are prohibitive, for many reasons: the nature and complexity of the process, the unequal positions of power and access to resources between the parties particularly in employment cases, fear of victimisation, financial, health or other reasons. Many people simply do not want to rock the boat or be labelled a troublemaker fearing the impact this may have on their careers and livelihoods in the future.