Australian Human Rights Commission

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6.2A wider range of remedies for discrimination

    A number of participants observed that protection from discrimination on the basis of sexual orientation and sex and/or gender identity would provide a wider range of remedies for people who experienced discrimination. Participants argued that there should be the same avenues as there are for people who are discriminated against on the basis of their sex, race, disability or age under existing federal anti-discrimination laws.92 The Commission heard that this would have a significant positive impact. For example:

    People would feel more secure in their workplace because they know their rights would be protected and their job would be safe.93

The consultation also heard that the investigation and conciliation service provided by the Commission is an important mechanism for addressing discrimination. For example:

    The strengthening of civil protections in this area would also provide those groups with less formal and more accessible means of redress through the dispute resolution services offered by the Australian Human Rights Commission. In our experience, such service can provide a quick and appropriate remedy for victims of hate conduct, but can also have a broader, educative effect on all parties involved in the dispute.94

6.3National consistency in anti-discrimination protection

    A large number of participants observed that federal legislation might lead to greater national consistency in anti-discrimination protection.95

    Many participants observed that there is gap in protection from discrimination as Commonwealth agencies are currently not bound by state and territory anti-discrimination laws. This was a particular concern for trans and intersex participants as there are no federal protections from discrimination on the basis of gender identity.96 One participant observed:

    It is self-evident that in the absence of federal anti-discrimination protections, it is very difficult for [transgender, transsexual and intersex] people to respond to any discrimination they encounter when interacting with federal departments such as Medicare, Centrelink, the Australian Taxation Office, or the Australian Passports Office.97

    The Law Council of Australia provided some examples of potential everyday situations in which unfair discrimination might occur against individuals who are in contact with Commonwealth agencies. For example:

  • An employee in a Commonwealth department who is discouraged by the Senior Executive from applying for promotion due to his transgender status.

  • A person who is subjected to sustained, intrusive and intimidating questioning by the Australian Federal Police about her lesbian background, despite its lack of relevance to the crime of which she is suspected (fraud).98

    Further, a number of participants commented on the inconsistency in state and territory laws prohibiting discrimination on these grounds. For example:

    Federal Laws would allow for all Australian LGBTI people to be protected and have the same rights, compared to the mismatched State-based legislation that currently exists.99

    Some participants were hopeful that federal legislation would ‘fill the gaps’ in terms of where state legislation does not adequately protect people.100

    [S]uch a law would close certain gaps that currently exist in relation to protection of people from discrimination on the basis of sexual orientation and sex and/or gender identity. ... not all states have the same degree of protection from discrimination; for example, under New South Wales law, only homosexuality is a prohibited ground of discrimination.101

    For trans people and intersex people, there are currently a large number of ‘holes in the net’ for people to fall through. Federal legislation can make sure that there is one set of consistent rules that would cover all people, regardless of geography. There is currently a significant lack of legal protection for a trans person.102

    The Victorian Bar also noted that federal legislation could provide protection against discrimination that comes under the very broad exemptions in some state and territory legislation, depending on the way in which the federal law was drafted and the exemptions that it included. 103

6.4Concerns about legal protection from discrimination on the basis of sexual orientation and sex and/or gender identity

A number of participants raised concerns about the introduction of federal laws and how these laws might impact on other human rights, including freedom of religion and belief, and freedom of expression.

Many of these submissions supported legal protection from vilification and harassment in principle, provided that it is balanced with competing rights.104 Other participants simply urged caution in considering such laws.105

For example, a pastor commented:

I have known many homosexuals and lesbians as friends over the course of my ministry … The teaching of Christianity means that I am to love the person, but I have no right to hate or attack or vilify them for their behaviour … individuals must be protected [by law] from the effects of hatred and in this case, homophobia, but at the same time, I must (in good conscience) be free to state what the Bible teaches also.106

Another person noted:

Without question some people do experience unwarranted discrimination due to sexual orientation and or gender identity. Hopefully measures could be implemented to assist these people … Yet [at] the same time, religious freedom is also an important right and one that needs to be protected.107

Some participants considered that existing laws already adequately protect a person from vilification and harassment on the basis of sexual orientation and gender identity and there was no need to change the laws.108 Others strongly opposed any changes to the law.109

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