Anti-discrimination laws on hold, but new LGBTIQ anti-discrimination laws

Federal Attorney-General Mark Dreyfus has announced today that he will withdraw attempts to have comprehensive Federal anti-discrimination laws, and try and rework them. Unlike the States, the Commonwealth does not have comprehensive anti-discrimination laws, and does not provide for specific laws against discrimination against LGBTIQ people.

Mr Dreyfus has announced however, that there will be amendments to the Sex Discrimination Act which will specifically prevent discrimination against LGBTIQ people [with the exception of marriage], and that this proposal has received the bipartisan support of the Coalition. It is hoped that the new laws will be enacted this week!

I have set out below the press release of Mark Dreyfus and Penny Wong and the transcript of his press conference.

The press release

NEW ANTI-DISCRIMINATION LAWS TO COVER SEXUAL ORIENTATION, 

GENDER IDENTITY AND INTERSEX STATUS 

The Gillard Government will introduce legislation this week to protect Australians against discrimination on the basis of sexual orientation, gender identity and intersex status.

“This reform is long overdue and too important to be delayed any further. The Government will proceed immediately with the new protection while detailed work continues on consolidating Australia’s anti-discrimination laws,” said Attorney-General Mark Dreyfus QC.  

“This new protection against discrimination for LGBTIQ Australians is an important next step to ensure equality for all Australians, regardless of their sexuality or gender identity,” said Senator Penny Wong. 

“This legislation honours a long-standing Labor commitment and I am proud that the Gillard Government is introducing this Bill.” 

“I urge the Parliament to debate and pass the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill to ensure gay, lesbian, bisexual, transgender and intersex people are afforded the same protections as everyone else under Commonwealth law,” said Mr Dreyfus. 

The new sexual orientation protection will build on the Labor Government’s reforms to 85 Commonwealth Acts which removed discrimination against same-sex couples and their children.

Those changes ensure that same-sex relationships are now treated in the same way as other de facto relationships for the purposes of Commonwealth entitlements and programs, including taxation, superannuation, health, aged care, immigration, child support and family law.

The Attorney-General also thanked the Senate Legal and Constitutional Affairs Committee for its report on the draft Human Rights and Anti-Discrimination Bill.

“The Committee’s inquiry into the draft Bill recommended significant policy, definitional and technical amendments which go well beyond the scope of the intended project. Nearly 100 recommendations were identified and will require deeper consideration in the process of consolidating five anti-discrimination acts into one piece of legislation,” said Mr Dreyfus. 

“Meticulous attention must be applied to striking the appropriate balance between the right to freedom of speech and the right to be protected from discrimination. This is fundamental to our democracy. As recommended by the Senate Committee, the Attorney-General’s department will continue working on this project  

“The Opposition’s only notable contribution to the anti-discrimination discussion has been its ugly threat to strip away protection against racial vilification, otherwise known as hate speech. 

“Hate speech has no place in modern Australia. Tony Abbott and Senator Brandis should be condemned for this incredibly irresponsible attack on laws that have worked effectively for nearly 20 years,”  said Mr Dreyfus. 

“Section 18C has been  used successfully in court action involving serious cases of racial abuse and intimidation, including cases where it had been asserted that the Holocaust never happened or that Indigenous people ‘faked’ their Indigenous heritage to gain beneficial outcomes. 

“Cynically promoting themselves as heroes of free speech, do Mr Abbott and Senator Brandis really believe there is any context in which Australians should be free to publicly racially vilify others?

“Anyone who thinks there should be no boundary to keep hate speech out of our democracy is leading our nation down a very ugly and misguided path.

“Labor would never support the repeal of laws protecting Australians from hate speech and persecution.”

 

The press conference

 

 

MARK DREYFUS: Thanks for coming today. I'm here to make two announcements regarding Australia's anti-discrimination laws. The first is that the Gillard Government will introduce legislation this week to protect Australians against discrimination on the basis of sexual orientation, gender identity and inter-sex status. It will ensure that gay, lesbian and transgender and inter-sex Australians are afforded the same protections under Australian law as all other Australians.

This reform to the Sex Discrimination Act is long overdue and much too important to be delayed any longer.  

The new sexual orientation protection honours a long-standing Labor commitment. It builds on the Labor Government's reforms to some 85 Commonwealth Acts of Parliament which removed discrimination against same-sex couples and their children. 

Because of those changes to those 85 acts of Parliament, same-sex relationships are now treated in the same way that different sex de facto couples are treated for the purposes of Commonwealth entitlements and programs, taxation, superannuation, health, aged care, immigration, child support and family law.

I should say that the Opposition has indicated its support for this new protection, this additional ground that's to be added to the Sex Discrimination Act so there should be no excuse for delay or rejection.  

And while the Government proceeds with this single and very important reform, detailed work by my department will continue on consolidating Australia's anti-discrimination laws. And that's the second announcement that I'm making here today. 

The purpose of this project to consolidate Australia's anti-discrimination laws was always to consolidate the five acts that together make up the body of Australian anti-discrimination law into one single piece of legislation and it's a consolidation that must strike a very careful balance between freedom of speech and the right to be free from discrimination.  

They are complementary freedoms and both are necessary for a properly functioning democracy. These laws are a foundation for Australia's tolerance, fairness and respect, the culture of tolerance, fairness and respect that we have.  

It's critically important to get that balance right. This is no small task. Our anti-discrimination laws have evolved over the last 40 years to protect and strengthen people's rights in the areas of race, sex, disability and age.

We must make the language in the single piece of legislation that we are aiming for consistent.  

We must remove the overlaps but without diminishing the substance, without diminishing the protections that we've built up and created over the last 40 years.  

The aim remains to make it easier for everyone, particularly employers and workers, to understand their rights and responsibilities and of course to be able to find as quickly and efficiently as possible. 

The Senate Legal and Constitutional Affairs Committee, which has released its report last month recommended closer examination of nearly 100 recommendations from a number of organisations.  

From my own examination and taking into account some of the more considered views and suggestions that have emerged, I'm not satisfied that the bill, in its current form, passes the test of striking the right balance. 

There are significant policy, definitional and technical points that require deeper consideration. 

In line with the recommendation of the committee, I've asked my department to continue working on this project by conducting an examination of the committee's recommendations and by looking at the evidence and the submissions that were provided to the committee. 

And I just want to say one other thing about the Opposition's approach to this anti-discrimination consolidation project.  

And I have to say that the Opposition's only contribution to the anti-discrimination discussion has been its vow to repeal the racial vilification laws.  

Be under no illusion about what this really means. 

It means stripping away people's protection from hate speech, it means stripping away the protection against persecution that we have in Australian law. And I want to make it clear.  

Hate speech has no place in modern Australia. Tony Abbott and George Brandis should be condemned for this incredibly irresponsible attack on laws that have worked effectively for nearly 20 years. 

They are masking themselves as heroes of free speech but do Senator Brandis and Mr Abbott really believe that there's any context in which Australians should be free to publicly vilify others, that there's any context in which someone should be free to deny that the Holocaust ever happened? To deny to a Holocaust survivor that the Holocaust actually happened? Or to falsely claim that indigenous people faked their indigenous heritage to gain favourable outcomes?

I say the answer to that is no. Anyone who thinks that there is no boundary to keep hate speech out of our democracy is leading our nation down a very ugly and misguided path. 

These people are not defenders of free speech. What they are doing is defending hate speech.  

They are supporting a no rules, free-for-all approach to persecution.  

And I want to be very clear on this point. There is no place for hate speech in this country. 

Under a Labor Government there will never be any place for hate speech in our country. Labor would never support the repeal of laws that protect Australians from hate speech and from persecution. Thank you. 

QUESTION: Mr Dreyfus, is the fact that you're deferring the consolidation of these bills is a concession that the Government perhaps went too far in its initial plan or that this was, you know, the judgement on this was wrong?

MARK DREYFUS: Not at all. What I'm making clear today is that we are now going to consider the very lengthy report and the detailed recommendations and suggestions made by the Senate Committee. 

This is a pretty standard process of law reform but we've got a particularly complex project here. 

This is putting together five acts of Parliament enacted over four decades. Inevitably when you've got that situation, you've got different acts with different concepts using different language. It's sometimes just a matter of drafting styles changing over time. And to put them all together is a complex process.

The Government started this process with a discussion paper, followed it up with a consultation draft of the bill and I'd stress, it's a consultation draft, it's not a bill that was introduced to Parliament as the final form. 

It's a consultation draft that has drawn out a range of criticisms in the hundreds of submissions that were made to the Senate Committee. 

We've now got the senate report and we're going to consider all of that. But we are moving forward with the single, very important reform to the Sex Discrimination Act.

QUESTION: You mentioned you weren't satisfied the balance had been struck. So are you effectively admitting it wasn't just a consolidation - the bill actually went further than just consolidating what exists?

MARK DREYFUS: No, no. What I'm saying is that when you are putting together the Aged Discrimination Act, the Sex Discrimination Act, the Racial Discrimination Act, the Disability Discrimination Act, which use somewhat different concepts and different language, it's very important to make sure you've come out with the right result. 

The right result being that we are not surrendering any of the protections that have been built up over the last four decades. They are important protections and that we are getting the balance right. Because this tension between protecting free speech and protecting vulnerable groups in our society against discrimination is a permanent tension. It's one that will be found in every piece of legislation like this and it's always necessary to get the balance right.

QUESTION: Isn't it the case that given the exemptions that currently exist in the act, that even though you introduce a new ground of discrimination, there'll be large exemptions for people in employment, housing and the like, which are provided by non-government organisations, which have a religious affiliation? I mean, isn't there a great big hole in the act even you're introducing this new ground of discrimination?

MARK DREYFUS: No. We haven't proposed a change to the exemptions that have been there for religious organisations for many years other than, and I'd stress this, the removal of the exemption for aged care services. And that's government policy. 

That's something that was clearly set out in the bill. We drew attention to it.

It's something I'd add that the responsible minister for aged care services, Mark Butler, has spent a lot of time consulting about.

And we would be proposing to go forward with that, not least because there was very, very little criticism, very few of the hundreds of submissions to the Senate Committee raised any objection at all to the removal of the exemption for religious institutions that provide aged care services.

QUESTION: [Indistinct] … meeting with some of your own colleagues in your caucus yesterday. Are you comfortable with those exemptions given that some of your colleagues… [indistinct]

MARK DREYFUS: I'm not going to comment on what happened in caucus, but I don't accept your characterisation of any of that. 

What the Senate Committee did, and this is on the public record, is call for an extension of the limiting of the exemption if I can put it in that way. And I can assure you that the Government will not be making changes in this area without very extensive consultation and consideration.

But clearly this is an area in which there are people interested in reform, this is an area in which there are people continually pressing for change. 

We think it's an area that you need to take care in, we think it's an area that you need to give very detailed consideration to change to the law. That's the process we're presently engaged in. 

But what is clear is that we can now move forward directly with a simple change to the Sex Discrimination Act to add protection for gay, lesbian, trans-gender and inter-sex Australians.

QUESTION: Minister, on another matter, and you probably know what I'm going to ask, does the Prime Minister still enjoy the party [indistinct] of support?

MARK DREYFUS: Oh absolutely. And you should ask another question because I'm here to talk about the introduction of a new ground of discrimination in the Sex Discrimination Act.

QUESTION: You say absolutely but, I mean, this is not good for the Government, this constant leadership speculation is it?

MARK DREYFUS: Well that's stating the obvious, but I say absolutely and you should ask me about another question that deals with the Sex Discrimination Act, or deals with the anti-discrimination package.

QUESTION: Minister, regarding the anti-discrimination package as a whole, how soon do you think you can actually put that entire package [indistinct]?

MARK DREYFUS: I'm not going to put a time limit on it. It is a complex project and one in which we've got to take into account the many hundreds of submissions that we've received in the course of this consultation project. 

The very detailed comments that have come from the Senate Legal and Constitutional Affairs Committee, we think it's appropriate that they be given the kind of consideration they deserve and, at the risk of boring everybody here, I don't think I want to go into what the drafting issues are, but a lot of the submissions that were made by some of the more technically minded groups. I'd cite perhaps the Law Council of Australia, drew attention to a range of technical drafting issues which is inevitable when you're going to mesh five acts of Parliament.

QUESTION: So if this is about getting a new package right, getting the balance right, did your predecessor not get the balance right?

MARK DREYFUS: No I don't accept that for a moment. I think that my predecessor handled this process admirably, this is a very good process of consultation where you start with a discussion paper, move to a consultation draft, and then receive, as I've said, hundreds and hundreds of submissions. It's drawn out. 

The kind of difficulties that you might anticipate when you're engaging in this project there are going to be, we now need to seek to resolve those difficulties and work on the recommendations and suggestions that we've received.

QUESTION: Minister there's been a number of Facebook pages, very racist ones towards Aboriginal people popping up in recent times. How serious is the Government about clamping down on those? Especially when there are difficulties with Facebook, being international authors et cetera. Because a lot of Aboriginal people are getting very, very angry about it. 

The other question is, are alcohol management plans in Queensland discriminatory?

MARK DREYFUS: I'd have to look at the alcohol management plans in Queensland, but as to your first question which goes to racial vilification and hate speech potentially appearing on Facebook pages or on the internet: the Racial Discrimination Act provides a complaints procedure. 

Section 18C of the Racial Discrimination Act, the section that the Liberal Party of Australia wants to repeal, that Tony Abbott and George Brandis have said they want to repeal, which I think is disgraceful, is the section which protects against that kind of hate speech.

I'd suggest that anyone that's concerned about that kind of hate speech appearing on the internet should raise their complaint with the Australian Human Rights Commission, and there are processes that can then be put in place, which would start with a more informal process leading, ultimately, if the matter can't be resolved, to the Federal Court of Australia.

And of course that's the process that's reserved for the very serious cases, and we've seen unhappily some such serious cases being brought to court over the last 18 years that this legislation's been in force.

I'd say, happily, we haven't had too many cases, which suggests to me that in some senses the legislation is having the effect that it is intended to have which is to send a very clear message throughout Australia that there is no place in our society for this kind of hate speech.

QUESTION: Attorney, you're going to bring forward whistleblower legislation soon?

MARK DREYFUS: Tomorrow actually.

QUESTION: This morning Andrew Wilkie indicated that he might be minded to support the Government's media reforms if there was whistleblower legislation before the House - his whistleblower legislation before the House. 

Have you been motivated to bring forward this legislation in order to win Mr Wilkie's support for the media reforms?

MARK DREYFUS: No I think you need…

QUESTION: [Indistinct] rushed.

MARK DREYFUS: I don't think anybody could describe the process that the Government has gone through with introducing whistleblower protection legislation as rushed. 

This Government came to the 2007 election with a commitment to introduce whistleblower protection legislation, commissioned a report from the House of Representatives standing committee on Legal and Constitutional Affairs, and responded to that report with a tabled Government response in 2010 which accepted almost all of the recommendations of the committee, which were for the introduction at the Commonwealth level of a scheme of whistleblower protection to match the schemes of whistleblower protection or public interest disclosure legislation that we now have in every state and territory.

And I'll be very pleased to introduce a bill for public interest disclosure, or whistleblower protection in the House of Representatives tomorrow.

QUESTION: So after all that time, four years, all of a sudden it emerges right when you've got a fight with some media companies? That's rather coincidental isn't it?

MARK DREYFUS: I don't think you should draw any direct correspondence between any of these events. 

And it's something that's taken a long time to prepare, probably too long, but it's finally here. And I'd stress Mr Wilkie has his own whistleblower protection bill. This is not Mr Wilkie's bill, this is the Government's whistleblower protection bill.

QUESTION: Greens leader Christine Milne this morning said that Labor doesn't have the courage or the convictions on social reform [indistinct] decision to delay the consolidation of the discrimination act. What would you say to those comments?

MARK DREYFUS: That they are nonsense. I don't think that anyone could suggest that a Government which is here, as I am, announcing that we are bringing the forward the additional ground to protect gay, lesbian, trans-gender and inter-sex Australians from discrimination could be said to be not interested, or lacking courage in respect of social reforms.

Equally it's one thing to say you should be enthusiastic about social reform, it's another to get right what is complex legislation. And that's what we're engaged in here and that's why I'm announcing two things here today. One being moving forward on a simple, clear reform. 

Which I'm - can now see has Opposition support. At long last they've joined Labor's commitment to bring in this additional round of discrimination. And on the other, that we are going to continue to work on a complex project which has drawn forward a very large number of recommendations and suggestions in the consultation process.

QUESTION: What happens next in that work? Are - you guys go back and the department’s going to redraft [indistinct] going to go out to consultation again, or are you going to do more consultation and then come up - like is…

MARK DREYFUS: I'm not going to pre-empt how we're going to respond, I'm not going to pre-empt by saying we're going to go to another consultation draft or go straight to legislation, or go to further consultation. I'm going to look at it but it does require substantial more work by the department and that's now going to occur.

QUESTION: There's been criticism of the so-called, reverse onus of proof. Do you envisage that that will be something you will have not wanted to see in the final version?

MARK DREYFUS: I'm not going to commit to where we finally land on these things.

QUESTION: You've had - this consultation over anti-discrimination laws has been going for a considerable amount of time. You've had, as you said, a discussion paper, you've had an exposure bill, you've had a senate inquiry and now you've dumped it a couple of months out [indistinct] election [indistinct] controversial isn't that the case?

MARK DREYFUS: I don't accept the premise there - that what you've described us as. The Australian's got this completely wrong in its headline today. 

I'm here announcing that the Government is going forward with this anti-discrimination consolidation project, and that's what we're going to do. 

And it's entirely wrong to describe it as dumped which is what The Australian sought to do today. 

We are not bringing it to the House this week, the last sitting week before we adjourn until the Budget session. 

What I am bringing into the House this week is a single, very important, long overdue reform which is adding a ground of discrimination based on sexual orientation, gender identity and inter-sex status.

QUESTION: Attorney-General if the complete package isn't being dumped, can you commit that the entire package will be passed before the election?

MARK DREYFUS: No I've said to you before I'm not going to put a timing on this. It will take the length of time that it takes to get this right.

QUESTION: Attorney-General, do you believe that this - possibly a future Labor Government could reconsider same-sex marriages as obviously a step towards ensuring equality for all Australians regardless of their sexual orientation. Do you believe that there'd ever be a reconsideration of the [indistinct] on same-sex marriage?

MARK DREYFUS: Well we've had a vote on a private members bill for same-sex marriage last year. I voted in favour of same-sex marriage because the Australian Labor Party and our Government has allowed a conscience vote by members of the Federal Parliamentary Labor Party. 

I'd call on the Liberal Party of Australia and in particular Tony Abbott to allow the same conscience vote on same-sex marriage.

QUESTION: And would you see that as a successful vote? As the final sort of step for legislation laws?

MARK DREYFUS: We won't know until the Liberal Party allows a conscience vote because until that happens we won't know how many members of the Liberal and National Parties are prepared to vote for same-sex marriage. But my guess is that a very large number of them are prepared to vote for same-sex marriage if there is a conscience vote and that's why I'm calling on Tony Abbott to permit it.