Section 9 - Protection from vilification and harassment on the basis of sexual orientation and sex and/or gender identity (2011)
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Addressing sexual orientation and sex and/or gender identity discrimination
Consultation Report
2011
Section 9 - Protection from vilification and harassment on the basis of sexual orientation and sex and/or gender identity
There are no protections from vilification and harassment on the basis of sexual orientation or sex and/or gender identity in federal law. The potential benefits of such protections are described in Section 6 above. This part describes:
- current protections from vilification and harassment on the basis of sexual orientation and sex and/or gender identity in state and territory law
- how protections from vilification and harassment on the basis of sexual orientation and sex and/or gender identity might be included in federal law.
9.1 Current protections from vilification and harassment on the basis of sexual orientation and sex and/or gender identity in state and territory law
In addition to prohibiting discrimination on the grounds of sexual orientation, gender identity and relationships, New South Wales, Queensland, the Australian Capital Territory and Tasmania also prohibit vilification on these grounds.[212] Vilification refers to communications made in public that incite ‘hatred towards, serious contempt for, or severe ridicule of’, a person or group of people on the ground of their sexual orientation or sex and/or gender identity. This may include graffiti, comments made on radio or television, web pages with public access or verbal abuse in a public place.[213]
It is very difficult to prove vilification. It is not sufficient that the respondent’s conduct conveyed hatred or expressed serious contempt. Rather, it must be shown that the respondent’s conduct was capable, in an objective sense, of urging or arousing other people to feel hatred towards the complainant, on the ground of their sexual orientation or sex and/or gender identity.[214]
Only the Northern Territory and Tasmanian statutes prohibit harassment, and these prohibitions are very limited. The Northern Territory statute prohibits ‘harassment’ on the ground of sexuality,[215] whilst the Tasmanian statute prohibits harassing behaviour on the ground of the person’s relationship.[216] The remaining state and territory anti-discrimination statutes are silent on the issue of harassment related to sexual orientation, gender and relationship status.
9.2 How protection from vilification and harassment on the basis of sexual orientation and sex and/or gender identity might be included in federal law
A significant number of participants supported laws protecting from vilification and harassment on the grounds of sexual orientation.[217] For example, the Victorian Equal Opportunity & Human Rights Commission supports strengthening civil and criminal provisions protecting people from vilification on the basis that:
In the Commission’s view, such remedies are necessary because hate crime and hate conduct have a disproportionate impact on particular groups and their ability to realise other human rights. This should apply to attributes that include sex, sexual orientation and gender identity.[218]
The Commission did not specifically seek feedback on the form of vilification and harassment laws, however some participants felt compelled to comment on this issue.
Several participants suggested that anti-vilification and harassment laws on grounds of sexual orientation should be similar provisions in the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act.[219]
Some participants expressed concern about anti-vilification and harassment laws because of the impact it might have on freedom of speech and freedom of religion.[220] Other participants raised specific concerns about religious groups engaging in vilification.[221]
[212] Anti-Discrimination Act 1977 (NSW), pt 3A div 5 (‘transgender’ vilification), pt 4C div 4 (‘homosexuality’ vilification); Anti-Discrimination Act 1991 (Qld), s 124A (vilification on grounds of ‘sexuality’ and ‘gender identity’); Discrimination Act 1991 (ACT), pt 6 (‘sexuality vilification’); Anti-Discrimination Act 1998 (Tas), ss 3 (‘public act’ (inciting hatred on the ground of ‘sexual orientation’)), s 19. These vilification provisions do not extend to the relationship grounds.
[213] Anti-Discrimination Act 1977 (NSW), ss 38R, 49ZS, 49ZT(1); Anti-Discrimination Act 1991 (Qld), ss 4A, 124A; Discrimination Act 1991 (ACT) ss 65, 66; Anti-Discrimination Act 1998 (Tas), s 19.
[214] See eg, Turner v State Transit Authority [2004] NSWADT 89; JM and JN v QL and QM [2010] NSWADT 66; M v S and G [2008] QADT 24; Menzies v Owen [2008] QADT 20.
[215] Anti-Discrimination Act 1992 (NT), s 20(1)(b) (in that context harassment is not defined or explained).
[216] The Tasmanian Act provides that a person must not engage in any conduct which ‘offends, humiliates, intimidates, insults or ridicules’ a person on the ground of their relationship, in circumstances in which a reasonable person would have anticipated that the complainant would be ‘offended, humiliated, intimidated, insulted or ridiculed’: Anti-Discrimination Act 1998 (Tas), s 17(1). This approach is similar to the legislative formulation of sexual harassment. See, for example, Sex Discrimination Act 1984 (Cth), s 28A.
[217] NSW Gay & Lesbian Rights Lobby, Comment 94; Victorian Women Lawyers, Comment 93; Freedom! Gender Identity Association, Comment 90; GRAI (GLBTI Retirement Association Inc), Comment 140; Law Council of Australia, Comment 132; Victorian Child Safety Commissioner, Comment 138; Anti-discrimination Commission Queensland, Comment 131; Women’s Legal Centre (ACT & Region), Comment 106; Victorian Equal Opportunity & Human Rights Commission, Comment 121; Hawkesbury Nepean Community Legal Centre, Comment 97.
[218] Victorian Equal Opportunity & Human Rights Commission, Comment 121, p 9.
[219] ACON, Comment 109; Victorian Child Safety Commissioner, Comment 138; Law Council of Australia, Comment 132; Hawkesbury Nepean Community Legal Centre, Comment 97. See Racial Discrimination Act 1975 (Cth), pt IIA; Sex Discrimination Act 1984 (Cth), pt II div 3.
[220] See Section 6.4, Concerns about legal protection from discrimination on the basis of sexual orientation and sex and/or gender identity.
[221] See for example, National LGBTI Health Alliance, Comment 112.
