Mr Brian Greig
Senator for Western Australia
Australian Democrats
Unit 1, 151 Brisbane Street
Perth WA 6000
By email: [email protected]
Dear Senator Greig,
Sexuality Anti-Vilification Bill 2003
Australian Lawyers for Human Rights Inc (ALHR) is a network of Australian
lawyers active in practising and promoting furthering awareness of human
rights in Australia. The ALHR membership of over 600 is national, with
active National, State and Territory committees. Through training, information,
submissions and networking, ALHR promotes the practice of human rights
law in Australia, and works with Australian and international human rights
organisations to increase awareness of human rights in Australia. ALHR
has extensive experience and expertise in the principles and practice
of international law, and human rights in Australia.
ALHR supports the
concern of the Australian Democrats to protect and defend the human rights
of lesbian, gay, bisexual, transgender and intersex people in Australia.
We have some reservations however about the drafting of the Sexuality
Anti-Vilification Bill 2003, and hope that our comments below are
helpful to you.
Background
To date, legislative efforts in Australia to prohibit vilification
on the grounds of sexuality and transgender status have been piecemeal.
Such legislation now exists in New South Wales, Tasmania and as of 29
November 2002, in Queensland. The Australian Capital Territory has now
released its report paper on gay, lesbian, bisexual, transgender and intersex
people in the ACT.
At a Federal level,
we note that the Government and the ALP did not support the Democrats’
comprehensive Sexuality Discrimination Bill, which has been on
the Notice Paper since 1995 and the subject of an extensive Senate
Committee Inquiry that provided recommendations in December 1997.
Turning to the provisions Sexuality Anti-Vilification Bill 2003,
we make the following comments:
Constitutional power
As you know, Article 26 of the ICCPR provides that all persons
are equal before the law and are entitled without any discrimination
to the equal protection of the law. There is no doubt that the Commonwealth
Government has the power to enact legislation giving effect to the obligations
under article 26.
However it is only arguable, and by no means clear, that legislation prohibiting
vilification is supported by this power. Current members of the High Court
have given indications that they are not inclined to a broad reading of
the Commonwealth’s powers derived from ratification of international
instruments. If it has not been done already, we suggest that a strongly
argued case for the constitutional power be prepared should the issue
arise.
Drafting
- The
Bill refers to but does not define sexuality or transgender status.
We suggest that the terms be defined. The New South Wales Anti-Discrimination
Act is a model which provides a definition of a transgender person
at section 38A, discussed recently in the matter of Lawarik v Chief
Executive Officer, Corrections Health Service [2003] NSWADT 16.
Further, the new provisions of the Queensland Anti-Discrimination
Act define 'sexuality' as heterosexuality, homosexuality or bisexuality.
We also draw your attention to the recommendations of the Senate
Committee Inquiry into Sexuality Discrimination on the issue of
definitions.
- It
appears from your Second Reading Speech that the prohibition of vilification
is intended to cover lesbian, gay, bisexual and transgender people.
However, the Bill prohibits vilification on the ground of sexuality,
but does not appear to prohibit vilification on the ground of transgender
status. We suggest that it should do so.
- The
Bill provides for an additional offence of serious sexual vilification.
Again, perhaps by oversight, the drafting of this offence does not appear
to extend to serious transgender vilification. We suggest that it should
do so.
- In
relation to the offence of serious vilification, we suggest that the
provisions might better be modelled more closely on the New South Wales
Anti-Discrimination Act. The NSW Act differentiates vilification
from serious vilification in the following ways:
- The
usual defences of fair report and acts done reasonably in good faith
for academic, artistic, religious, scientific or research purposes do
not apply to the offence of serious vilification. This is because serious
vilification includes threatening physical harm or inciting others to
threaten physical harm towards the person, group of persons or their
property.
- Maximum
penalties are set out in the case of an individual and a corporation.
Further, a person is not to be prosecuted for an offence unless the
Attorney General has consented to the prosecution. We note that under
the new provisions of the Queensland Act, this consent can be obtained
from the Attorney General or the Director of Public Prosecutions.
- The
Bill provides for complaints to be dealt with by the Human Rights and
Equal Opportunity Commission (HREOC). However, the Bill also provides
that Chapter 2 of the Criminal Code will apply to offences against
the Act. It is not clear when and in what circumstances Chapter 2 of
the Criminal Code will operate, especially in the context of
HREOC's handling of complaints. We suggest that this could be clarified.
We hope that our comments
on the Sexuality Anti-Vilification Bill 2003 are useful.
Yours sincerely,
Simon Rice
President
Australian Lawyers for Human Rights
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This page last updated 11th September 2004
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