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 The purpose of this paper is to examine the extent of present discrimination against homosexuals (gays and lesbians) in Australia with particular reference to the objectives, basis, limitations and outcomes of anti-discrimination legislation. Accurately assessing the level and extent of discrimination against homosexuals in Australia is difficult because many homosexuals are reluctant to publicise their homosexuality. Anecdotal evidence and the complaints lodged suggest that discrimination is prevalent. In so far as society's attitudes are reflected in its laws, it is only recently that discrimination against homosexuals has been considered unacceptable. Australia's laws have tended to reinforce the ideal of the nuclear family and other stereotypes. In the past many laws were highly discriminatory, but this has slowly changed in parallel with society. Women gained the right to vote, Aboriginal people became recognised citizens of Australia and recently male homosexual activity has been decriminalised. There are still changes that need to be made before discrimination in legislation is eliminated entirely. In 1991 there were still discriminatory age of consent laws regarding anal intercourse in four of eight of Australia's main states . The Extent Of Present Discrimination One indication of the present level of discrimination is the experience of a gay teenager who was harassed and assaulted in school because of his sexuality. The school failed to protect him and he made a complaint which is under investigation. As leaders of public opinion prominent politicians at all levels of government have espoused their discriminatory views about homosexuality in the media. Pine Rivers Shire Council Mayor Yvonne Chapman tried to ban gays from her shire . Mr Kev Lingard, Queensland Minister for Families, Youth and Community Care tried to make it illegal for gay men to be foster fathers. When the Queensland Anti-Discrimination Tribunal decided in favour of a lesbian couple who wanted to be parents by IVF , Mr Tim Fischer, Deputy Prime Minister, and Mr Mike Horan, Health Minister, both said they would do what they could to stop ‘aggressive lesbians’ from gaining access to IVF programs. These examples help to heighten
public awareness of widespread homophobia. Letters to the editors of the
papers which published the articles variously supported and rejected the
politicians’ viewpoints. This suggests that discrimination against homosexuals
is not only prevalent but, at times, extreme.
Some progress is being made. In April 1997 a former diplomat successfully sued the federal government for denying his male partner the same special allowances afforded partners of the opposite sex . Recently the Uniting Church released its final report on sexuality which advocates consideration of same sex marriages and affirms that homosexuals can be ordained as ministers . The Catholic Church however still bans gays from its ministry. Laws about marriage, adoption, inheritance, superannuation and social security benefits still do not afford homosexual couples the same automatic recognition as heterosexual couples. Anti-Discrimination Legislation It is only in the last fifteen years that New South Wales (NSW), Queensland (Qld), South Australia (SA), the Australian Capital Territory (ACT) and the Northern Territory (NT) have passed legislation prohibiting discrimination on the basis of homosexuality, whether gay or lesbian. Victoria (Vic) has no specific provision covering homosexuality in its anti-discrimination legislation. Western Australia (WA) and Tasmania (Tas.) have no anti-discrimination legislation at all. Homosexuals in Vic, WA and Tas. who suffer from discrimination on the basis of their sexuality can resort to federal legislation, namely the Human rights and Equal Opportunity Commission (HREOC) Act but this act does not have the enforceability of the state legislation. Discrimination Defined Discrimination is more restrictively defined by the legislation than in the minds of the general public. Under the various jurisdictions discrimination is defined as the less favourable or unfavourable treatment of someone on the basis of specific characteristics in specific areas of life. Only discrimination against homosexuals in the areas of life covered by the legislation is unlawful. Subject to some exemptions, discrimination against homosexuals in employment, education, accommodation, registered clubs and the provision of goods and services is outlawed in those states which have covering legislation. Areas such as superannuation, insurance, professional trade and business organisations, employment agencies and partnerships are covered by only some jurisdictions. The terms homosexuality, sexuality and lawful sexual activity are used by different state laws to cover discrimination against gays and lesbians. Discrimination on the basis of a person’s homosexuality, presumed homosexuality and association with a person who is homosexual is covered by the laws in most states. Legislation prohibits both direct and indirect discrimination. This increases the effectiveness of the legislation in that it is broad enough to cover discrimination through the imposition of a condition which homosexuals have greater difficulty in meeting. For example, an employer who required senior executives to be married with families would be discriminating directly on the basis of marital status and family responsibilities and indirectly on the basis of sexuality as fewer homosexuals could meet the criteria. Aids Related Discrimination AIDS related discrimination is unlawful in NSW, Qld, SA, the ACT and the NT. For example, discrimination against a homosexual male because he is presumed to have AIDS would be directly discriminatory. Although AIDS related complaints of discrimination have been accepted as coming under the grounds of discrimination on the basis of homosexuality, complaints on this basis have not always been successful. In the case of Ferguson - v - Central Sydney Area Health Service the Equal Opportunity Tribunal dismissed a complaint by a homosexual man who was refused minor elective surgery on the basis that he was in a high risk group for the AIDS virus. The case was decided on the basis that anyone, male/female, heterosexual/homosexual, would have been discriminated against in the same circumstances, that is if they belonged to a high risk group. The above case illustrates the subtle distinctions which can be made by anti-discrimination tribunals which limit the effectiveness of the legislation for homosexuals who are often associated in the public perception with the spread of HIV/AIDS. Discrimination Complaints Process The legislation is generally complaints based. In order for the anti-discrimination body to investigate, conciliate and attempt to resolve a complaint, a victim of discrimination must first lodge a written complaint. This complaints based process relies on an individual recognising that he/she has been discriminated against and has an avenue of complaint which he/she is prepared to pursue despite the time, effort, cost and notoriety involved. For homosexuals who may not have publicly - or even privately - declared their sexuality, this is an unrealistic expectation, and may explain the relatively low numbers of complaints lodged. In the years from 1993/4 to 1995/6, only forty-six complaints (between 2.5% and 3.1%) were received by the Qld Anti-Discrimination Commission on the basis of discrimination for lawful sexual activity, which includes discrimination on the basis of homosexuality . Groups of individuals who
have similar grievances can lodge a representative complaint. In this way
the legislation can be used to benefit a larger group. This would enable
gay and lesbian rights groups to lodge complaints on behalf of their members
who were effected by a discriminatory practice.
If the complaint doesn’t settle, it can be referred for a public inquiry where evidence must be presented to the tribunal to substantiate the complaint. If a complainant is successful in proving discrimination, they may need to take further proceedings in a court to enforce the tribunal’s decision. Of the new complaints closed by the Queensland Anti-Discrimination Commission in 1995/6 twenty three percent (23%) of the complaints lodged were withdrawn and ten percent (10%) were closed because the complainant lost interest. Twenty percent (20%) of complaints on hand which were closed by the Queensland Anti-Discrimination Commission in 1995/6 were withdrawn and thirty-one percent (31%) were closed because the complainant lost interest. The substantial dropout rate indicates that the process has failed to provide an effective recourse for many complainants. Unfortunately there are no figures available to show how many of these complainants were homosexual. State Legislation In NSW, SA and the NT discrimination on the basis of homosexuality and presumed homosexuality is unlawful in areas including employment, education, accommodation and the provision of goods and services. Homosexual vilification is also unlawful in those states. For example, in the NSW case of Daniels - v - Hunter Water Board the Equal Opportunity Tribunal found that an electrician who was the subject of name calling, derogatory comments, practical jokes, prank telephone calls and numerous assaults was discriminated against because of a presumption that he was homosexual. This presumption was based on his trendy haircut, the wearing of an earring in his left ear and his participation in jazz ballet, drama classes and modelling. As part of the outcome the electrician was not only awarded damages, but had the Anti-Discrimination Board’s facilities made available to the Hunter Water Board to raise awareness of anti-discrimination law in its workplace. In SA and the ACT the anti-discrimination legislation covers homosexuality, bisexuality and transsexuality. In this way it is broader than the NSW legislation which arguably does not include bisexuality and transsexuality. One limitation of the SA legislation is that it’s not unlawful to discriminate on the basis of appearance or manner of dress which is a characteristic or expression of homosexuality provided that it is reasonable to discriminate in all the circumstances. This may mean, for example, that employers can refuse to employ gays who wear earrings if it does not fit the image the employer requires. No case has yet suggested what might be "reasonable in all the circumstances." In the ACT, the NT and Qld there are numerous exceptions which permit discrimination on the basis of sexuality, for example in employment in a domestic household, in employment involving the residential care of children and in relation to some religious purposes. These exceptions reduce the effectiveness of the legislation for homosexuals both directly, by excluding specific avenues of complaint and by the message they give to the general public that it is acceptable to sometimes discriminate against homosexuals. The specific exemption relating to the care of children reinforces the misguided public perception that homosexuals are pedophiles. In this way the legislation may be seen to encourage discrimination and vilification of homosexuals in the current heightened level of concern about child sexual abuse. In Qld the legislation covers discrimination on the basis of "lawful sexual activity" which, though not defined, would arguably includes homosexuality, bisexuality and transsexuality provided that sexual activity is between consenting adults (18 and over). Commonwealth Legislation The HREOC Act empowers the Human Rights Commissioner to conciliate any complaint of a breach of a human right under the International Covenant on Civil and Political Rights (ICCPR). Article 2 of the ICCPR is wide enough to cover sexuality. The HREOC Act is most useful for homosexuals who are unfortunate enough to live in states that do not have specific or adequate legislation. Homosexuals can use the HREOC Act to supplement their rights under state laws. The major limitation of the HREOC Act is that if the attempt at conciliation of the complaint is unsuccessful there is no enforcement provision. The only recourse available is for a report to be made to the Attorney-General who can then name respondents in Parliament. First Optional Protocol If a complainant has exhausted all avenues of redress under Australian legislation, a complaint can be lodged with the United Nations through the use of the First Optional Protocol of the ICCPR. This process was used effectively by Rodney Croome and Nick Toonen from the Tasmanian Gay and Lesbian Rights Group. They were found to have been discriminated against as homosexuals because of a breach of their right to privacy through the criminalisation of homosexual activity between consenting adults in their own home. Australia is a signatory to the First Optional Protocol but is not bound to follow the United Nations ruling, however Australia's international human rights reputation would be damaged by non-compliance with any ruling.. The High Court has since upheld the complainants’ challenge to the anti-gay laws of Tasmania, despite political opposition to such a decision. The necessity to exhaust all local avenues of complaint before lodging a complaint with the United Nations is a limitation on the effectiveness of this process. In addition, it usually takes in excess of two years for a complaint to be heard by the United Nations. Given the nature of the proceedings, it is a slow, expensive and complicated procedure beyond the reach of most potential complainants. The Educative Role Another important role of the anti-discrimination bodies throughout Australia is their educative function. This function is specifically set out in the objects of the legislation. Through dissemination of library resources, publications, community education and publicity about individual cases, the anti-discrimination bodies seek to inform the general public about anti-discrimination laws and their application. Where cases are referred for an inquiry, the proceedings are held in public. While the tribunals have the power to withhold identifying details of the parties, this discretion is exercised in a way which does not detract from the central role of educating the public about discrimination. Media attention to a number of high profile cases does much to further the effectiveness of the legislation, beyond the benefit to the complainant/s involved. It is particularly useful in addressing institutionalised discrimination by publicly questioning laws, processes and policies which effect larger groups in society. Conclusion It is difficult to assess the extent of discrimination on the basis of homosexuality in Australia because of the lack of accurate information. Media reports and individual case studies indicate that discrimination is widespread and serious. Discrimination against homosexuals occurs on an individual basis and through systemic prejudices enshrined laws, policies and processes. While anti-discrimination laws covering homosexuality have been introduced in most Australian jurisdictions over the last fifteen years, the laws do not cover all discriminatory behaviour. The complaints process discourages people from making complaints as borne out by HREOC statistics indicating low numbers of complaints lodged on the basis of discrimination against homosexuals. There are no statistics to indicate how many homosexuals have not made a complaint because of their unwillingness to make public their sexuality. For these reasons it is hard to quantify the effectiveness of anti-discrimination legislation. The legislation would have greater impact if it was uniform and comprehensive in all states, with fewer exemptions and if it covered homosexual vilification. Federal legislation with adequate enforcement procedures is still needed to cover the Commonwealth government. The complaint process should be faster, simpler and should provide more legal and practical support for complainants. While the educative functions of the anti-discrimination bodies are valuable, there are insufficient resources to prevent discrimination. The anti-discrimination bodies need to move from their current reactive complaints based processes to a pro-active approach which would allow them to investigate potential sources of complaints and take preventative action without the need for a complainant to come forward. This is particularly important in the area of homosexual discrimination because of the reluctance of many homosexuals to publicly reveal themselves. Despite the inadequacies in the legislation, laws are an important tool in any struggle for social justice for homosexuals in Australia. Even in those states such as NSW where there has been strong legislation in place since 1982, discrimination against homosexuals still occurs. When Australian laws have reached the stage that there is no need for the First Optional Protocol and Australian society has reached the stage that there is no need for anti-discrimination laws, we will then have achieved equality for all regardless of issues such as sexuality. Bibliography Website
Newspaper Articles Courier Mail, 7/5/97 ‘Chapman
orders gays out of shire’
Other Information Human Rights & Equal
Opportunity Commission. Annual Report for 1995/96, Canberra, AGPS, 1996
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