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Section 9 - Protection from vilification and harassment on the basis of sexual orientation and sex and/or gender identity - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)

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.