6 December 2010
Australian Human Rights Commission
Level 8, Piccadilly Tower
133 Castlereagh Street
SYDNEY NSW 2000
By email to:
Dear Consultation Organisers
Consultation regarding federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity
The Law Institute of Victoria (LIV) is pleased to make this submission to the Australian Human Rights Commission on its consultation regarding federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity. Thank you for allowing us more time in which to prepare this submission.
The LIV is Victoria’s peak body for lawyers and those who work with them in the legal sector, representing over 14,500 members. The LIV is a constituent body of the Law Council of Australia (LCA). We support the LCA’s submission to this consultation and add the comments in this submission from a Victorian perspective.
The LIV strongly supports ‘Australia’s Human Rights Framework’ (the Framework), launched by the federal Attorney-General in April 2010.[1] We recognise that key aspects of the Framework – including combining federal anti-discrimination laws into a single Act to remove unnecessary regulatory overlap and make the system more user-friendly – will make an important contribution to human rights promotion and protection in Australia. We remain of the view, however, that any federal human rights policy initiatives and law reforms should be preceded by a National Human Rights Charter. We consider that the Victorian Charter of Human Rights and Responsibilities Act 2006 has greatly improved human rights protections in Victoria and we will continue to advocate for a federal Charter.
The LIV has consistently supported the principle of non-discrimination on the basis of sexual orientation and gender identity. The LIV adopted a policy on the ‘Removal of Discrimination against People on the Basis of Gender Identity or Sexual Orientation’[2] in June 2007 and has made submissions consistent with that policy at a state and federal level. In Victoria, for example, we were strong advocates for reforms that led to the enactment of the Relationships Act 2008 and the Assisted Reproductive Treatment Act 2008. We also raised sexual orientation and gender identity issues in the context of the review of Victoria’s equal opportunity laws.[3] Nationally, we have made submissions concerning sexual orientation or gender identity in the context, for example, of the National Human Rights Consultation, in relation to reforms recognising same-sex relationships and with respect to amendments to the Marriage Act 1961 (Cth).[4]
Against this background, we expect that a single anti-discrimination Act delivered under the Framework will deliver substantive equality for all people which is at least as strong as the new Equal Opportunity Act 2010 (Vic) with respect to all attributes, including sexual orientation and sex and/or gender identity. We would ask, however, that, unlike the Victorian Equal Opportunity Act 2010, the federal Act is not limited as to the fields of discrimination covered.[5]
Set out below are our comments with respect to the questions posed in the Discussion Paper.
Benefits and examples (Qns 1 and 3)
As noted in the Consultation’s Discussion Paper, people who identify as lesbians, gay, bisexual, transgender or intersex (LGBTI) face widespread discrimination on the basis of their sexual orientation and sex and/or gender identity. Australia's international human rights obligations require governments to take all necessary measures to eliminate such discrimination and provide effective remedies to those who suffer discrimination.[6]
However, current Victorian and federal law provides only limited protection against discrimination. There is also a lack of uniformity between state and territory laws seeking to provide protection. Moreover, some laws themselves discriminate against people on the basis of their sexual orientation or gender identity.
The benefits of properly drafted federal prohibitions on discrimination on the basis of sexual orientation and sex and/or gender identity would include:
· Filling gaps in the armoury of redress for all the many instances of discrimination experienced by LGBTI people, many of which are documented in the Consultation Discussion Paper.[7]
· Invalidating state laws, by virtue of s.109 of the Constitution, that discriminate against people on the basis of their sexual orientation or gender identity.
Examples of situations where federal protections are needed due to inadequate protection under state and territory laws include:
· The provision of Commonwealth public services, to the extent they are not, or there is some doubt as to whether, they are covered by state and territory anti-discrimination laws.
· Adoption laws, such as the Adoption Act 1984 (Vic) which discriminates against same-sex couples by limiting adoption by de facto couples to a relationship between a man and a woman (s.11(1) together with s.4). Recent jurisprudence provides only limited scope for adoption by an individual in a same-sex couple as opposed to adoption by same-sex couples.[8]
· Criminal laws that distinguish directly or indirectly between heterosexual and homosexual sexual intercourse in prescribing the age of consent for sexual activity. For example, in Queensland, there is a general prohibition on anal intercourse with a person who is under 18 which indirectly discriminates against young gay men.[9]
If federal protections were properly drafted for the purposes of s.109 of the Constitution, state legislation that discriminates against people on the basis of sexual orientation and sex and/or gender identity – such as the Victorian Adoption Act 1984 – could be invalidated. Section 109 states that ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’.
Terminology (Qns 6 and 7)
Appropriate terminology should be determined in consultation with LGBTI communities.
The LIV is generally supportive of the definition of ‘sexual orientation’ used in the Victorian Equal Opportunity Act 2010. Section 4 defines ‘sexual orientation’ to mean ‘homosexuality (including lesbianism), bisexuality or heterosexuality’. We consider that any references to discrimination on the basis of a person’s relationship status should be defined to include people in same-sex relationships. The LIV believes, for example, that the term ‘marital status’ in the Victorian Equal Opportunity Act 2010 should in fact be ‘relationship status’ to properly reflect that it includes people in same-sex ‘domestic’ or ‘registered’ relationships. Any references to ‘parental status’ should also be defined to include both parents in a same-sex relationship.
The LIV is of the view that ‘gender identity’ should not be defined according to the ‘birth sex’ of a person because discrimination generally occurs due to the fact that the ‘birth sex’, not the ‘affirmed sex’, is imputed to the person. A person’s ‘birth sex’ is the sex that a person has been raised as, as opposed to the sex they identify to be on a bona fide basis. The LIV would support a definition of ‘gender identity’ that respects the sex or gender that a person identifies as, without the suggestion that they are in fact of the other sex or gender.
If using the definition of ‘gender identity’ in the Victorian Equal Opportunity Act 2010 as a model for a federal definition, the LIV would suggest inserting the words ‘raised as being’ before ‘of one sex’ in paragraph (a) of the definition in s.4 so that the opening phrase reads: ‘the identification on a bona fide basis by a person raised as being of one sex as a member of the other sex (whether or not the person is recognised as such)’. Other definitions of ‘gender identity’, such as those discussed in the Law Council of Australia submission, may, however, be preferred by the LGBTI communities.
Special measures (Qn 9)
Special measures designed to benefit specific groups based on sexual orientation and sex and/or gender identity should be allowed by federal anti-discrimination law. The LIV would support a description of special measures that makes it clear that they do not constitute discrimination but are part of a necessary strategy to achieve substantive equality for some groups in the community. To this end, the LIV does not consider the drafting of special measures in the Victorian Equal Opportunity Act 2010 to be an appropriate model for federal legislation.
Instead, and consistent with section 8(4) of the Victorian Charter of Human Rights and Responsibilities Act 2006, the LIV supports a definition that states that ‘special measures’:
(a) are measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination; and
(b) do not constitute discrimination.
Moreover, consistent with international law, special measures must be ‘designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities’.[10]
We thank you for the opportunity to contribute to your Consultation and would appreciate the opportunity of providing further input as the Consultation proceeds. Please contact Alice Palmer, Lawyer for the Administrative Law and Human Rights Section, on (03) 9606 9381 or , in relation to this matter.
Yours faithfully
Steven Stevens
President
Law Institute of Victoria
3
[1]Attorney General’s Department (Cth), Australia’s Human Rights Framework (April 2010) at http://www.ag.gov.au/humanrightsframework(accessed 1 December 2010)
[2] Law Institute of Victoria, LIV Policy Statement: Removal of Discrimination against People on the Basis of Gender Identity or Sexual Orientation (21 June 2007) at http://www.liv.asn.au/PDF/About/Governance/2007DiscriminationPolicyStatement(accessed 1 December 2010)
[3]Law Institute of Victoria to Scrutiny of Acts and Regulations Committee, Equal Opportunity Bill 2010 (Vic) (18 March 2010)http://www.liv.asn.au/getattachment/39d1263c-565a-48cf-b65c-080ffc188696/Equal-Opportunity-Bill-2010-(Vic).aspx(accessed 1 December 2010); Law Institute of Victoria to Scrutiny of Acts and Regulations Committee, Inquiry into the Exceptions and Exemptions in the Equal Opportunity Act1995 (17 July 2009) at http://www.liv.asn.au/Membership/Practice-Sections/Administrative-Law---Human-Rights/Submissions/Inquiry-into-the-Exceptions-and-Exemptions-in-the-?glist=0&rep=1&sdiag=0 (accessed 1 December 2010); Law Institute of Victoria to Shadow Attorney-General (Vic),Submission on Victorian Assisted Reproductive Treatment Bill 2008 (6 October 2008) athttp://www.liv.asn.au/Membership/Practice-Sections/Administrative-Law---Human-Rights/Submissions/Assisted-Reproductive-Treatment-Bill-2008.aspx?rep=1&glist=0&sdiag=0&h2=1&h1=0 (accessed 1 December 2010); Law Institute of Victoria to Attorney-General for Victoria, Relationships Act 2008 (8 Jul 2008) athttp://www.liv.asn.au/getattachment/f7086dc7-4c76-42ee-95a0-261168090a2d/Relationships-Act-2008.aspx (accessed 1 December 2010).
[4]Law Institute of Victoria to the National Human Rights Consultation Committee, National Human Rights Consultation(15 June 2009) athttp://www.liv.asn.au/Membership/Practice-Sections/Administrative-Law---Human-Rights/Submissions/National-Human-Rights-Consultation.aspx?rep=1&glist=0&sdiag=0&h2=1&h1=0 (accessed 1 December 2010); Law Institute of Victoria to Senate Standing Committee on Legal and Constitutional Affairs, Submission on Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Bill 2008 (19 September 2008) athttp://www.liv.asn.au/Membership/Practice-Sections/Family-Law/Submissions/Inquiry-into-the-Same-Sex-Relationships-Bill-2008.aspx?rep=1&glist=0&sdiag=0&h2=1&h1=0 (accessed 1 December 2010).
[5]The Victorian Act is limited, for example, to discrimination in employment or the provision of goods and services.
[6]See for example UN Committee on the International Covenant of Civil and Political Rights, Young v Australia, (941/2000) 6 August 2003, UN Doc. CCPR/C/78/D/941/2000 (2003);UN Committee on the International Covenant of Civil and Political Rights, Toonen v. Australia, (488/1992)31 March 1994, U.N. Doc CCPR/C/50/D/488/1992(1994).
[7] Australian Human Rights Commission, Protection from discrimination on the basis of sexual orientation and sex and/or gender identity, Discussion Paper – October 2010,Part5.
[8]In the matter of an Application pursuant to s 11(3) Adoption Act (Vic) 1984AB and Victorian Equal Opportunity & Human Rights Commission and Department of Human Services and Separate Representative of J [2010] VCC AD-10-003 (6 August 2010) [para 122].
[9]Criminal Code Act 1899 (Qld) s 208. The Criminal Code Act 1995 (Qld) which amended these provisions has never been proclaimed. See further Australian Law Reform Commission, Seen and heard: priority for children in the legal process Report No 84(1997) at http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC84.pdf (accessed 1 December 2010).
[10]UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation no. 32, The meaning and scope of special measures in the International Convention on the Elimination of All Forms [of] Racial Discrimination, 24 September 2009,CERD/C/GC/32 (2009).