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SDA Amendments

Identity LGBTI

Australian Public Service Human Rights Network

 

Acknowledgements

Good afternoon. Firstly, I would like to acknowledge the traditional owners of the land on which we meet – the Ngambri people - and their elders past and present.

Thank you David Fredricks for the introduction. It’s a pleasure for me to be here today.

 

My Role as Human Rights Commissioner

As you may have noticed, in February I was formally appointed the Human Rights Commissioner at the Australian Human Rights Commission (the Commission).

There are eight Commissioners at the Australian Human Rights Commission, including the President, as well as six other Commissioners that focus on Age, Sex, Race, Disability Discrimination, as well as the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Children’s Commissioner, as well as myself.

The role of Human Rights Commissioner differs to many of these portfolios that give specific focus through relevant pieces of Federal legislation.

There is no equivalent legislation directing my position as the Human Rights Commissioner and indeed, my role potentially touches on all areas of the work of other Commissioners.

Since starting as the Commissioner, I have assumed two distinct but complementary roles.

First, I work to instill in public discourse and amongst the wider Australian community a strong culture of rights and responsibilities.

Second, and fitting well within this broader framework, I am assuming responsibility for representing human rights as they relate to sexual orientation, gender identity and intersex status. As Australia’s first openly gay Commissioner, I welcome the opportunity to utilise my public position to advocate for the realisation of human rights in this context.

On this note I am impressed and heartened by the number of attendees here to contribute to, and to learn about the new Sex Discrimination Act amendments anti-discrimination protections. This is evidence of the lead role that the Australian Public Service can take in advancing human rights in this country.

Before I start, a quick note on terminology. I want to acknowledge that the Commission recognises that terminology can have a profound impact on a person’s identity, self-worth and inherent dignity. The use of inclusive and acceptable terminology empowers individuals and enables visibility of important issues.

The Commission supports the right of people to identify their sexual orientation, sex and gender as they choose. Indeed I was heartened to hear of the High Court ruling last week upholding that the Births, Deaths and Marriages Registration Act 1995 (NSW) permits the Registrar to register that a person's sex is "non-specific". This ruling is in line with the findings and recommendations of the Commission’s 2009 Sex Files Report on the legal recognition of sex in documents and government records.

The Commission also recognises that terminology is strongly contested. Issues concerning sexual orientation are quite different to issues concerning sex and/or gender identity.

Keeping this in mind, for the purpose of today’s speech I will use lesbian, gay, bisexual, trans* and intersex, or LGBTI, as a recognised umbrella term which I intend to be inclusive of all sexual orientations, sex and genders. I will use the terms sexual orientation, gender identity and intersex status to refer to the new protections in the SDA.

 

Introduction

Today I am going to discuss the recent changes to the Sex Discrimination Act 1984 which introduce protections against discrimination on the basis of sexual orientation, gender identity and intersex status in federal law. I will briefly address what these changes mean, in particular for the public service, and the importance of providing inclusive environments free from discrimination for LGBTI employees and service providers to help meet these obligations. Finally I will briefly touch on the Commission’s complaint function as this may be one of the ways employers interact with the Commission.

But first, a little about the Commission’s role in the SDA amendments to provide context for why I am here speaking about the changes.

Under our statutory mandate the Commission has several functions that are relevant to this:

  • We accept and try to resolve by conciliation individual complaints of discrimination and human rights under the five pieces of legislation. We receive over 17,000 inquiries and complaints a year; of those we attempt to conciliate, 65% are successfully resolved.[1]
  • We intervene in court proceedings that involve human rights issues and we examine laws relating to certain rights and often propose improvements to those laws (we intervened in the High Court in AB v AH re what is required under the Gender Reassignment Act (WA) for a person to be recognised as a particular gender).[2]
  • We conduct research and propose new policy and standards which would promote the enjoyment of human rights (eg Sex Files Report re the recognition of sex and gender in official documents).[3]
  • We conduct national inquiries to bring special attention to issues of concern (eg Same-Sex: Same-Entitlements Report 2007 re the equal treatment of same-sex couples in relation to financial and work-related entitlements).[4]
  • We provide education about human rights to improve awareness, understanding and respect for rights in our community (eg recent information workshops around the country on the new SDA protections)
  • We also work with a number of UN institutions like the treaty bodies and the Universal Periodic Review process in the UN Human Rights Council (eg, we are currently collaborating on the development of an LGBTI education resource for National Human Rights Institutions (NHRI) based in Africa within our role on the Commonwealth Forum of National Human Rights Institutions).[5]

In summary, the Commission is the body that receives complaints under the SDA and is the body charged with providing education to improve awareness, understanding and respect for rights in our community.

 

Non-discrimination in international human rights law

I believe that sexual orientation and gender identity raise classic legal issues of international human rights law, such as non-discrimination, equality before the law and the right to private life, amongst others. Indeed the question of sexual orientation and gender identity can be raised in relation to all human rights and fundamental freedoms.

The positive developments I’m discussing are a major step forward for the Australian Government to fulfil its international human rights obligations towards LGBTI people. The International Covenant on Civil and Political Rights (ICCPR) enshrines the rights of all people to non-discrimination and equality before the law.[6] The right to the equal protection of the law without discrimination requires State Parties to prohibit discrimination and take action to protect against discrimination.[7] A number of UN Committee decisions and statements have confirmed that this right to non-discrimination extends to sexual orientation and gender identity.[8]

 

Discrimination against LGBTI people

The Commission has advocated strongly for these changes over many years. In 2010 the Commission commenced a public consultation to canvas the experiences and views of people who may have been discriminated against on the basis of their sexual orientation, gender identity or because they are intersex.[9]

Participants revealed personal stories of discrimination, vilification and harassment that provided compelling evidence of the need for federal protection. Just before I outline the legal changes in more detail, I want to share some of their stories today. Often we can get lost talking about the mechanics of legal and policy change. But it is through understanding the experiences of discrimination, vilification and harassment that we can really appreciate the importance of discrimination protection for LGBTI people in Australia.

Robert and Matthew alleged they were dismissed from their cleaning job...because they were a gay couple. The couple alleged that their employer regularly brought up the topic of their sexuality in work conversations, reduced their hours, and told them they wouldn’t be given older people’s houses to clean because they would not be acceptable to older people.[10]

In another example a transgender individual described:

I was working in a local retailer when I first began my social transition from female to male. I cut my hair very short, and started using my current name. The general manager of the company sent a photograph of me, and my new name in an email to all the managers in the group. I wasn’t comfortable with this, but he said that the rest of the group needed to know who they were talking to over the phone and email. I had been hired for an assistant manager position, so that made sense. I was horrified a few weeks later when I was told that I was not only being demoted from the position I was hired for, but being made a casual staff member (with no rostered shifts) because I wasn’t ‘fit for full time work’. I protested, and he said: ‘face it, you aren’t the girl we hired’.[11]

Case studies such as these demonstrate that discrimination on the grounds of sexual orientation, gender identity and intersex still exits. These examples give us cause to be vigilant and reflective of our own practices to ensure that we are taking the appropriate steps to not only comply with the law but to proactively support LGBTI people in Australia.

Up until August last year, the law in this area was primarily covered at the state and territory level. The Commission could only accept complaints of discrimination on the basis of ‘sexual preference’ in employment and the matter could not proceed to court.

In 2011, as a result of its consultation, the Commission released its consultation report Addressing sexual orientation and sex and/or gender identity discrimination recommending these new grounds be protected in federal discrimination laws.

 

Changes in federal discrimination law

This brings me to the new protections. I will briefly touch on this now, and Jodie Ball our next speaker will extrapolate on the more technical aspects of the amendments.

In March 2013 the former Attorney-General announced that further consideration was required for the Human Rights and Anti-Discrimination Bill 2012. This was the process that sought to consolidate the five pieces of federal discrimination legislation into one Act. However he announced that he would introduce amendments to the Sex Discrimination Act which would provide protections against discrimination on the basis of sexual orientation, gender identity and intersex status as well as extending coverage to same-sex couples.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (SDA Amendment Act) commenced on 1 August 2013. This Act amended the Sex Discrimination Act to introduce these new protections. This was the first time intersex status was protected in Australian anti-discrimination laws.[12]

Discrimination on the basis of the new attributes is unlawful in the same circumstances as the existing grounds in the SDA which include sex, breastfeeding, family responsibilities and pregnancy. The new changes do not affect the existing grounds of discrimination and they will continue to operate unchanged.

Employers and service providers who were already covered by the SDA will now have obligations with respect to the new grounds. These include federal government departments and agencies, private companies, small businesses, incorporated and unincorporated bodies, partnerships and recruitment and employment agencies to name a few.

 

What does this mean for you?

In general the changes mean that, unless you are a state instrumentality, you will have some new obligations under the SDA. It also means that LGBTI people can now bring relevant complaints to the Commission, although a complaint cannot be made to both a state and the federal body.

Most states and territories have some form of protection against discrimination on the basis of sexual orientation and gender identity.[13] However the SDA Amendment Act introduces more inclusive definitions than the state and territory laws, introduces the new ground of intersex status, and if you’re a federal government employer, you have obligations for the first time.

Importantly, the changes establish a national standard for protection against discrimination on the basis of sexual orientation, gender identity and intersex status. This national standard ensures that LGBTI people are protected by anti-discrimination legislation regardless of their postcode and for employers and service providers this is useful as a consistent standard across jurisdictions.

As is currently the case relevant employers and service providers will have to comply with the provisions of the SDA as well as relevant state and territory anti-discrimination laws in their jurisdiction. If there are different standards between the jurisdictions, best practice would be to comply with the higher standard.

 

So, what should you do?

As public servants you should become familiar with the changes to the SDA and review their policies, processes and training to ensure that you do not discriminate against people on the basis of their sexual orientation, gender identity, intersex status or their relationship status.

The policies of your workplace should make it clear that discrimination on these new grounds is unlawful, outline complaint mechanisms and be clear about employees’ rights and responsibilities. These policies should be distributed widely and reviewed regularly.

With respect to the new protections, training, policies and practices should give consideration to whether any employee benefits or entitlements available to staff discriminate on the new grounds.

 

Information provision

The Commission has developed a number of information sheets on the new changes. We have also held information workshops specifically for business in Sydney and Melbourne and our staff are currently delivering workshops on the changes in other cities around the country including here today.

The Commission is also developing a web portal providing practical resources to assist employers to support workplace diversity and meet their obligations under discrimination law generally.  The portal will host:

Factsheets on

  • discrimination, harassment and bullying, age, sex, race, disability and sexual orientation, gender identity and intersex discrimination
  • vicarious liability
  • federal and state discrimination provisions
  • business and human rights

 
Good practice guidelines on

  • recruitment and selection
  • internal complaint processes
  • creating a fair and inclusive workplace
  • developing a workplace discrimination and harassment policy

 
The portal will be:

  • easy to navigate and search by topics relevant to employers provide links to other useful resources developed by the Commission and others
  • be up and running mid this year.

 

Engaging in our process

Finally I wanted to take this opportunity to briefly talk about our complaint service, which Jodie will elaborate on, further in a moment.

In some cases, despite best practice policies and practices, individual circumstances occur and complaints can arise.

Since the new protections commenced in August 2013, the Commission has received a small but steady number of phone and email enquiries about gender identity, intersex status, relationship status and sexual orientation. The Commission has also received complaints on these grounds during this time. While the numbers are relatively small, it is new legislation and we expect the numbers to increase.

 

Conclusion

I would like to finish with this. In the beginning of my presentation I spoke of real people facing real situations of discrimination. While the federal protections in the SDA would enable these individuals to make a complaint, it is the role of employers and service providers such as those in the public service, taking strong, concrete steps to create a safe, supportive and inclusive environment for LGBTI people that will help prevent incidents such as these from happening in the first place. Policies and training will help ensure that individual staff know their obligations, help ensure that LGBTI people know their rights, and help the entire Public Service create a culture that is safe, respectful and supportive of human rights. The protections in the SDA can provide a framework to assist you.

I thank you all for your attendance here today, and I am heartened by the efforts I see today and I encourage you all to continue on this journey.

Thank you.

 


[1] Australian Human Rights Commission, Annual Report 2012-2013 (2013), p 11. At https://www.humanrights.gov.au/publications/annual-report-2012-2013 (viewed 29 November 2013).
[2]AB v Western Australia 244 CLR 390.
[3] Australian Human Rights Commission, Sex Files: The legal recognition of sex in documents and government records (2009). At http://www.humanrights.gov.au/sex-files-legal-recognition-concluding-paper-sex-and-gender-2009 (viewed 29 November 2013).
[4] Human Rights and Equal Opportunity Commission, Same-sex: Same entitlements – National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits (2007). At http://www.humanrights.gov.au/publications/same-sex-same-entitlements (viewed 29 November 2013.
[5] See http://www.humanrights.gov.au/news/stories/call-formalised-international-lgbti-rights-action
[6]International Covenant on Civil and Political Rights 1966, arts 2(1), 26.

[7] Human Rights Committee, General Comment No. 18, paras 10 and 12.

[8] Human Rights Committee, Young v Australia, Communication No. 941/2000, UN Doc CCPR/C/78/D/941/2000 (2003), at http://www.unhchr.ch/tbs/doc.nsf/0/3c839cb2ae3bef6fc1256dac002b3034?Opendocument (viewed 26 March 2013), and see generally Nowak, note 17, pp 623–626. Discrimination on the grounds of sexual orientation is also prohibited under art 2(2) of the ICESCR: Committee on Economic, Social and Cultural Rights, General Comment No. 18 – the Right to Work, UN Doc E/C.12/GC/18 (2005), para 12(b)(i),at http://tb.ohchr.org/default.aspx?Symbol=E/C.12/GC/18 (viewed 26 March 2013), and Committee on Economic, Social and Cultural Rights, General Comment No. 14 – the Right to the Highest Attainable Standard of Health, UN Doc E/C.12/2000.4 (2000), para 18. At http://www2.ohchr.org/english/bodies/cescr/comments.htm (viewed 26 March 2013). Also see Committee on Economic, Social and Cultural Rights, General Comment No. 20 – Non-discrimination in economic, social and cultural rights, UN Doc E/C.12/GC/20, para 32 (viewed 22 July 2013).
[9] Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: Consultation report (2011), p 1. At http://www.humanrights.gov.au/publications/consultation-protection-discrimination-basis-sexual-orientation-and-sex-andor-gender (viewed 29 November 2013).
[10] Ibid, 9.
[11] Ibid, 10.
[12] Intersex discrimination is now also covered in the Anti-Discrimination Act 1998 (Tas).
[13] For example, see Australian Human Rights Commission, Addressing sexual orientation and sex and/or gender identity discrimination: Consultation report (2011), app 2. Note that amendments have been made to some laws since the publication of this report.

Tim Wilson, Human Rights Commissioner

See Also