The Anti-Discrimination Bill Inquiry Report

There are a total of 12 recommendations to come out of the Senate Inquiry Report. I posted about the deficiencies I noticed in the current draft recently, and so I’m going to address the four recommendations that relate to those inadequacies.

Recommendation 1
7.20 The committee recommends that the definition of ‘gender identity’ in clause 6 of the Draft Bill be amended to read:

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism.

Perfect! It does away with that troublesome genuine basis stuff and makes the definition more readily accessible to those who may be discriminated against for perceived gender identity difference.

Recommendation 2

7.21 The committee recommends that subclause 17(1) of the Draft Bill be amended to include ‘intersex status’ as a protected attribute. ‘Intersex’ should be defined in clause 6 of the Draft Bill as follows:

intersex means the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.

In my first read, I was provisionally happy with this definition. I’m not Intersex and while I haven’t had an issue with gender-diversity, the terminology is still kind of new to me. I have since noticed that this definition is verbatim the one suggested by Gina of OII. If OII suggested it, I know it’s going to be the right language. Well done OII!

Recommendation 11

7.80 The committee recommends that the Draft Bill be amended to remove exceptions allowing religious organisations to discriminate against individuals in the provision of services, where that discrimination would otherwise be unlawful. The committee considers that the Australian Government should develop specific amendments to implement this recommendation, using the approach taken in the Tasmanian Anti‑Discrimination Act 1998 as a model.

This is big. This is very big. This recommendation expands on the aged-care provisions in the Draft Bill and removes the religious exemption for people they are providing a service to…
That means that religious schools would have to accept, for example, the children of my Baptist Pastor friend even though they question his “commitment to Christianity.” They also would be unable to expel a student for being gay or pregnant.

On the very day this recommendation came out, the opposition called on Labor to rule out its implementation – not that they have any intention of supporting this bill anyway…

So reading through 11 good recommendations in a massive step forward, I was a bit thrown by the twelfth.

Recommendation 12

7.81 The committee recommends that clause 33 of the Draft Bill be amended to require that any organisation providing services to the public, and which intends to rely on the exceptions in that clause, must:

  • make publicly available a document outlining their intention to utilise the exceptions in clause 33;
  • provide a copy of that document to any prospective employees; and
  • provide access to that document, free of charge, to any other users of their service or member of the public who requests it.

What this means, dear readers, is that if you apply to work at a religious organisation, they must provide you with a copy of their discrimination policy. They’re simply obligated to tell you how they intend to mistreat you before you sign the contract. This is a step forward for transparency, I suppose. I hope that people will call out our religious providers for their policies. But unless this recommendation is fleshed out in legislation to require a clear explanation of which subsections of Section 33 the organisation intends to use and how, I expect that we’ll see a lot of policies that state that they “retain the right to discriminate on the basis of [the whole list], as outlined in Section 33 of the Bill.”

On the surface, this transparency is at least a start. It is quite sad though to think about all those people in industries like aged care which are dominated by religious groups. Those poor folks gain little from this legislation if all of the policies are as bad as each other. I’ve heard the opinion that this gives the public a chance to shame the organisation into fixing their policies… I don’t know if you’ve noticed, but religious groups are to renowned for moving with the times or even caring too much about public opinion. I think to think that they will be shamed into changing is naive unless some church groups release policies saying they do not intend to discriminate.

On this point, I would like to say thank you to UnitingJustice Australia – a social justice arm of the Uniting Church who supported the removal of blanket religious exemptions for the following: (pp58/59)

We acknowledge…that the exercise of religious freedom is subject to the regulatory norms that govern Australian society…

We do not believe that [clause 33] is necessary, in light of the need to balance the rights of the wider community with the freedoms to be afforded to religious groups…When religious bodies are provided [with] what amounts to a ‘blanket exception’, there is no incentive for that body to ensure that it does not discriminate, and no incentive to promote equality and inclusion in areas of employment and representation other than those leadership positions necessary to maintain the integrity of the religious organisation.

The Coalition dissenting report has recommended that the bill not be supported, but that:

1.35 Coalition Senators recommend that Part II of the Sex Discrimination Act 1984 be amended to include identity as a gay, lesbian, bisexual, transgender or intersex person as a protected attribute to which the Act extends.

Given they want to ensure that religious exemptions still apply, I view this second recommendations as a token statement designed to appease the GLBTIQ lobby without giving ground where it really matters.

I’m just left hoping the Greens, Independents, and other minor parties work to force the government to do the right thing with this bill, since it’s clear that neither major party will put the amendments forward…

There’s a petition being presented to the Attorney-General on Tuesday – go sign here: http://www.getup.org.au/campaigns/anti-discrimination/time-for-action/sign-the-petition
Don’t forget to write to your MPs, senators, and papers on this issue.

Due to some technical difficulties…

Dear Readers,

Due to technical difficulties (mainly the government altering the release date of the report) I won’t be reading the Anti-Discrimination Bill Senate Inquiry Report  until the new release date of the 21st.  

We will be returning to your regularly scheduled articles on or around the 22nd.

End Transmission!

Living in fear of Liberals

I cast my mind back to the 2nd of February when I and a group of other gay, lesbian, and straight ally constituents, spoke to Teresa Gambaro. [Thanks Phil for reminding me that we had Straight allies there]

The thing that stands out for me is a statement that one of us made “I am afraid that the Liberals will get in to government.”

To date, I know one gay person who has said that he wants the Liberals in. ONE. And I have to say, he’s not thinking about rights when he says that either.  Even he doesn’t believe the GLBTI community would be better off under the Liberals – he believes that Australia as a whole would be – and he’s willing to take the personal rights cost of that.

But I digress. There are some people who haven’t voiced an opinion one way or the other, but the overwhelming theme since I took my place in the community has been fear of the Liberals.  We couldn’t let them get back in, and we couldn’t let them take power again.  We daren’t.  Especially after Howard’s game-changing, discrimination-enshrining amendment to the Marriage Act in 2004.  QLD Queers are even more afraid of Liberal Party ascendancy. Having seen Campbell Newman’s LNP handiwork we’re justifiably concerned that attacks on the queer community might be carried out federally. Again.

Gambaro pointed out that the Liberal party voted for the same-sex de facto recognition in 2008. As they should have. But did they table it?  Was it something a Liberal government would have done? I don’t believe so.  Federally, the Liberal Party really haven’t been allies of the GLBTIQ community, grudgingly giving when they couldn’t prevent things anyway, but never pushing for actual reform.

Even now, in the face of groundbreaking anti-discrimination legislation with a couple of deficiencies, before the Senate Inquiry findings are released complete, they have announced that they will vote against it and not seek any amendments.

They are voting against the first ever Federal Anti-discrimination act, the first federal protection of sexuality, gender identity, women, and multiculturalism, rather than trying first to fix the problems with it.  I believe the bulk of submissions were made around 5 points – that’s 5 amendments, to small portions of the bill – but we’ll find this out tomorrow, when I read and comment on the report.

I would like to take this opportunity to explain that for some (seemingly bizarre) reason I thought that the Liberals would buck the trend and become an effective opposition who appeared to take serving the people seriously.  That this legislation might be free from the partisan “she says up, so he says down” that has defined the Liberal Party and Tony Abbott in their terms as the Opposition. And for the record, I would have been happy with Liberal performance on this bill if they simply pushed for the amendments and then if the govt said no, voted against it. To not push for reforms is the lazy way out.

Is it any wonder we fear a party who refuses to make an effort for the disadvantaged ?  Is it any wonder we fear a party whose platform on gay marriage legislation introduced by another party is a unanimous “no” vote?  Is it any wonder we fear a party who within the last decade and in their most recent term of government introduced discrimination to the Marriage Act?

Anti-discrimination Exposure draft – the issues

I have realised that I have been remiss in my blogging, having completely missed out the Exposure Draft Human Rights and Anti-discrimination bill put forward by ex-Attorney General Nicola Roxson.

On the whole, it’s a good idea, and it’s basically an effort to harmonise state discrimination legislation to a high standard.  It will be the first federal anti-discrimination legislation in Australia.

There are, however, some problems with the draft, which need to be rectified before it should be passed.

Early on in the bill, in the definitions section in fact, we note that there is no entry for “intersex”.  This is a group of people who can and do experience discrimination based upon a vast array of genetic conditions.  The closest they get to being covered under this bill is under gender identity.  From the draft legislation (Chap 1, Part 1-2, Division 2, Section 6 – p15)

gender identity means:
(a) the identification, on a genuine basis, by a person of one sex
as a member of the other sex (whether or not the person is
recognised as such):
(i) by assuming characteristics of the other sex, whether by
means of medical intervention, style of dressing or
otherwise; or
(ii) by living, or seeking to live, as a member of the other
sex; or
(b) the identification, on a genuine basis, by a person of
indeterminate sex as a member of a particular sex (whether or
not the person is recognised as such):
(i) by assuming characteristics of that sex, whether by
means of medical intervention, style of dressing or
otherwise; or
(ii) by living, or seeking to live, as a member of that sex.

Looks good right?  On the surface, the right words are there – there’s a second clause which exists for people of indeterminate sex.  But read it a bit harder, and you’ll see where the problem is – “the identification, on a genuine basis, … as a member of a particular sex”.  Gender identity does not permit intersex people (or any people, for that matter) to identify as neither, or both, or indeterminate, or anything except either male or female and still receive the benefits of the anti-discrimination legislation.

“We’ll help you, but you have to pick one.  Until you pick a side, you’re fair game.”  No room for a Switzerland in the gender divide, it seems.

So this is one of the major failings of the draft.  Another is the inclusion of the wording “on a genuine basis” – There are going to be some interesting judgment calls over the next while on what exactly “a genuine basis” might be.  How will someone prove that they genuinely identify as a member of the opposite gender – and how do they challenge the assertion that they don’t genuinely identify?

And then there’s the other thing I have a major problem with: (Section 33, pp48-49)

Exceptions for religious bodies and educational institutions
Protected attributes to which these exceptions apply

(1) The exceptions in this section apply in relation to the following
protected attributes:
(a) gender identity;
(b) marital or relationship status;
(c) potential pregnancy;
(d) pregnancy;
(e) religion;
(f) sexual orientation.
Exception for conduct of body established for religious purposes
(2) Subject to subsection (3), it is not unlawful for a person (the first
person) to discriminate against another person if:
(a) the first person is a body established for religious purposes,
or an officer, employee or agent of such a body; and
(b) the discrimination consists of conduct, engaged in in good
faith, that:
(i) conforms to the doctrines, tenets or beliefs of that
religion; or
(ii) is necessary to avoid injury to the religious sensitivities
of adherents of that religion; and
(c) the discrimination is on the ground of a protected attribute to
which this exception applies, or a combination of 2 or more
protected attributes to which this exception applies.
(3) The exception in subsection (2) does not apply if:
(a) the discrimination is connected with the provision, by the
first person, of Commonwealth-funded aged care; and
(b) the discrimination is not connected with the employment of
persons to provide that aged care.
Exception for conduct of educational institution conducted in
accordance with tenets etc. of a religion
(4) It is not unlawful for a person (the first person) to discriminate
against another person if:
(a) the first person is an educational institution that is conducted
in accordance with the doctrines, tenets, beliefs or teachings
of a particular religion, or an officer, employee or agent of
such an institution; and
(b) the discrimination is connected with employment by the
educational institution, or with the provision of education or
training by the institution; and
(c) the discrimination consists of conduct, engaged in in good
faith, that:
(i) conforms to the doctrines, tenets or beliefs of that
religion; or
(ii) is necessary to avoid injury to the religious sensitivities
of adherents of that religion; and
(d) the discrimination is on the ground of a protected attribute to
which this exception applies, or a combination of 2 or more
protected attributes to which this exception applies.

In short: Schools, Employment agencies, and in fact any religiously affiliated body can choose to withhold services from people on the basis of:    gender identity; marital or relationship status; potential pregnancy; pregnancy; religion; sexual orientation.

So if your church believes only those women who cannot get pregnant should be teachers, in their school, they can discriminate on those grounds.  They get to discriminate in their disability services, choosing not to provide services to transgender or gay clients – provided they can make the claim that it’s a belief of their religion.  If living together unmarried is a sin, they can choose not to hire you – or for that matter, refuse to accept your children into the school.  These organisations can choose not to provide services that the government pays them to provide on the basis of attributes otherwise protected by federal law. (Unless they’re providing aged care – aged care institutions are not allowed to discriminate against clients)

And it doesn’t stop there – oh no. They can also discriminate when it comes to hiring staff – even if they’re an aged care provider. We are seeing people fired for being pregnant out of wedlock, for being found out as being gay, for “living in sin”.  Whether they’re a cleaner, a teacher, a nurse, or a receptionist, people the government have identified as being at risk of discrimination are not being protected against Religious Organisations who are some of Australia’s biggest employers.

Some people have suggested that Section 32 is a problem as well.  I don’t. It basically permits religions to discriminate how the like when it comes to appointing their ministers.  I think that it *is* reasonable to discriminate for these positions as having someone that does *not* fit your belief-mold is a bit hypocritical when they then espouse the conflicting tenet.  They get to pick and choose on 11 of the 17 protected attributes.

I think concern about s32 is misplaced.  I wouldn’t want to dictate who could be a minister of religion – that *is* a religious decision.

Other people have also raised concerns about the inclusion of offence as part of the discrimination act – I can see their point, but I don’t think it’s as important as the two points I’m writing about tonight.

So there’s a report out on the 18th, which I’ll be reading and forming an opinion on for you shortly afterward!

In short, Section 6’s lack of Intersex and Section 33’s broad application to clients and employees of religious organisations alike I find disturbing.  I had hoped that the Abbott and the Opposition might make efforts to force amendments to the bill in these areas, but they’ve indicated they’re just going to vote no instead.  I guess they couldn’t afford to look like an effective opposition.

Meeting Teresa Gambaro

On Saturday, I went with a group of people who live in the Electorate of Brisbane to talk to our MP, The Honourable Teresa Gambaro, a Liberal, about her position on Marriage Equality.  Specifically, why she voted in opposition to 73% of her electorate, as indicated by a survey her office conducted.

I viewed the meeting with Ms Gambaro as having a number of positive outcomes and being an overall positive experience.  She made a few statements I disagreed with, and a couple I sadly recognise as realistic.

I confess that I did not take notes, and I am relying on my memory of the event.  At the time, I had not intended to blog about it.

She explained why she voted against Marriage Equality:

She is a member of the Liberal Party Executive (She is Shadow Parliamentary Secretary for two portfolios, International Development Assistance, and Citizenship and Settlement)

The Liberal Party were not granted a conscience vote.  This meant that members of the Executive, such as Teresa and Malcolm Turnbull, were not permitted to cross the floor like the backbenchers were.  This is saddening and frustrating, but it’s the reality of politics. 

When asked whether she would have voted for Marriage Equality if a conscience vote was granted, she replied that she was in favour of Civil Unions, and that she saw Civil Unions as the logical next step towards Marriage Equality and a way to bring the community with us on the Marriage Equality journey.  I can see the logic to her view on Civil Unions, and I won’t deny that they may be a stepping stone – but every government who has implemented them has used them as a way of stalling on same sex marriage, so while I acknowledge the realism here, I’m not happy about it.  She did not indicate clearly whether she would have voted for Marriage Equality if she was granted a conscience vote.  Again, she can’t actively stand against her party platform while in the executive, so I understand her reticence to answer this question directly, however frustrating it may be.

I believe that she committed to talking to her colleagues about the possibility of raising Civil Unions Legislation in the next parliamentary term.  Again, while that may not be the outcome I expressly want, she sees this as part of the journey to marriage equality, and would represent a significant change to party platform if she was to succeed.

On the topic of her survey on Marriage Equality,  she and her staff member Kris (Spelling?) were very fast to assert that “73 per cent of 1 per cent of the electorate are in favour of marriage equality.” The survey on this topic had a response of 1532 people in an electorate of 110,000 (1.5% response rate).  1120 (1% of her electorate and 73% of respondents) indicated that they were in favour of Marriage Equality. These statements suggest that she and her office do not think that the survey sample accurately reflected her electorate – which may be true, the sample was self-selected from those people who heard about her survey in the media or by her electorate newsletter and were motivated enough to respond. http://teresagambaro.com/2011/07/same-sex-marraige-survey-results/

That said, if you run a survey (and she reminds us that she didn’t have to ask), I believe that you have some level of obligation to stand by the survey result or declare at the time of publication of result the flaws you believe your methodology to have had.

Teresa committed to introduce the issue of Same Sex Marriage on her new-to-the-electorate survey to help her more accurately gauge the opinion in her electorate.  She tells us that these surveys go out to 800-1000 people per month.

She asked us about our experiences of discrimination in society, and seemed truly shocked and upset at the incidents we described.  We explained to her that we believed that publicly displayed attitudes like Tony Abbott’s are partly responsible for these incidents, giving Australians someone to point to in the Parliament who on the surface seems to agree with them.

She committed to us to take these stories, views and experiences back to her colleagues and discuss them.

Finally, she also agreed to meet one-on-one with Phil Browne and instructed Kris to make sure that it happened.  This meeting is with a view to building partnership and open and honest dialogue.

To reiterate: the positives from the meeting:

  • Ms Gambaro intends to raise the possibility of Civil Union legislation for the next Parliamentary term, believing as she does that it is the next step towards Marriage Equality.
  • She committed to include same sex marriage on her new-to-the-electorate survey, which should eclipse the original Marriage Equality Survey response rate within 6 months
  • She committed to take our stories of discrimination and homophobia back to Canberra for further discussion
  • She committed to meet with local activist Phil Browne to discuss how they can work together on this issue.

I would like to thank The Honourable Teresa Gambaro for taking the time to talk to us, and hope to have further opportunities to talk to her about this and other issues of importance in the future.  I encourage everyone to open a dialogue with their MPs and candidates.  If you live in the Electorate of Brisbane, Teresa Gambaro is your MP and you can contact her at http://teresagambaro.com/contact-teresa/ 

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