Wednesday, 4 May 2011

Stating the Obvious

AM - Rights Commission documents disturbing stories of discrimination 04/05/2011
The Human Rights Commission undertook public consultations in Sydney and Melbourne, calling on gay, lesbian and transgender Australians to tell their stories.

The commissioner, Catherine Branson says she was disturbed by what she heard.

CATHERINE BRANSON: We heard of people born intersex who were experiencing being called freaks in their workplaces and otherwise harassed and verbally abused, sometimes physically abused on the streets.
BARBARA MILLER: The commission says its report shows there's broad support for federal protections against discrimination on the grounds of sexual orientation or gender identity.

Is it a call to action do you think?

CATHERINE BRANSON: Look I think it's a call to everyone to reflect that there are people in our community who do not enjoy the rights that so many of us do enjoy.

All that the people we heard from wanted was to be treated in exactly the same way as most of us take for granted all of the time.

BARBARA MILLER: But you didn't hear from the rest of the population. What about the fact that some people argue that a lot of people in the community don't want these kind of rights to be afforded to this group?

CATHERINE BRANSON: Well look I'm not sure that that's right.

I think there is very broad support in the community for protections on the grounds of sexual orientation and sex and gender identity to be provided.

BARBARA MILLER: Corey Irlam from the lobby group the Australian Coalition for Equality welcomes the report.

COREY IRLAM: The beauty of this situation is both the Federal Government and the Federal Opposition in principle have agreed to introduce these laws as part of the national harmonisation process that's going on.
Australia, with 6 states and 2 territories, has a patchwork quilt of inconsistent legislation, with no good reason given by anyone for why these differences should exist. They're not so much an "accident" of history, as a train-wreck.

As part of this process, here in the Australian Capital Territory (ACT), the wheels of government are starting to turn. From the ACT Department of Justice and Community Safety:
Transgender rights & legal recognition

The ACT Attorney General, Simon Corbell MLA, formally referred the issue of transgender legal recognition to the Law Reform Advisory Council for consideration in 2011. Mr Corbell asked the Council for detailed advice on whether any changes to the Territory’s current law are needed to ensure the protection of human rights.

The Council will provide opportunities for public comment as it undertakes the inquiry. Further updates and information will be posted on this website.

The terms of reference for the Council's latest inquiry are available online here:

LRAC Terms of Refence 2011 - transgender rights & recognition

As part of its inquiry, the Council will consider advice by the Human Rights Commission on the current state of ACT law. The advice reviews the requirements for registering a change of sex under the Births, Deaths, & Marriages Registration Act 1997, and includes some recommendations for legislative reform. The advice is available at the link below:

Human Rights Commission - Advice on gender identity

The Council will also consider the recommendations of the Australian Human Rights Commission in its Sex Files: the legal recognition of sex in documents and government records report of April 2009. That report is available online at the following link:

AHRC Report - Sex Files
Members of the Legal and Medical professions from the Australian National University are taking part in this - and even the odd Intersexed Rocket Scientist too, as she has some specialised knowledge of both the medical and legal aspects that the others do not. Plus her personal story, which is a textbook case of just how bizarre the legal tangle is, exemplifying many of the problems in one neat package. As the chair of the ACT Law Reform Advisory Council said "Thank you very much Zoe, for being available, and for the very informative message. We have a lot to learn."

Glad to be of service.


Chip Uni said...


Thanks for sharing your deep knowledge.

Major said...

Most federal anti-discrimination legislation is justified under the foreign affairs power because of international treaties. Is there a treaty in place on which this one can be hung, or are they going to have to get the states to refer powers?

Zoe Brain said...

Major - a Victorian court case is precedent that all the sex discrimination law only applies to women discriminated against because they are women. It does not protect men, and does not protect the intersexed etc. That's because the convention that Australia signed was interpreted by the Judge is its narrowest possible construction.

I think that's a really awful decision, but it's there.

The Yogyakarta principles on how international human rights law is to be interpreted goes against that decision, and I don't think it would be made today.

You're right in principle - under the Australian constitution, the only power the Federal government has in this area is derived from the international conventions Australia is signatory to, and the power under the constitution for the Federal government to pass laws putting effect to those obligations.

Not many people realise that.

So the answer is : a definite maybe.