ࡱ> KMHIJ%` /bjbj"x"x :@@[k@`NNNbYYY8Y[bw\\\^]]]]]̍΍΍΍΍΍΍$h{zNKc]]KcKcNN]]4jjjKcvN]N]̍jKc̍jjjNNL]\ %~Yf\2L;<wSi^dLNL4]d]_j[`'a$]]]ij]]]wKcKcKcKcbbbdDYbbbYbbbNNNNNN  26 November 2010 鱨վ Level 8, Piccadilly Tower 133 Castlereagh Street SYDNEY NSW 2000 Dear Commissioner, RE: Consultation on the protection from discrimination on the basis of sexual orientation and sex and/or gender identity The Hawkesbury Nepean Community Legal Centre (HNCLC) is an independent, non-profit organisation, which provides free and confidential legal advice to people living in the Hawkesbury, Riverstone, Nepean and Hills areas of NSW. The HNCLC also initiates and supports policy and law reform issues of importance to our community and clients. Our submission, and its recommendations, has been guided by the recommendations set out in the Human Rights and Equal Opportunity Commission submission to the Senate Legal and Constitutional Affairs Committee on the inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality. Please do not hesitate to contact me on 4587 9599 if you have any questions regarding our submission. Yours sincerely, Hawkesbury Nepean Community Legal Centre Philippa Davis Principal Solicitor INTRODUCTION Current federal anti-discrimination legislation prohibits discrimination on the grounds of sex, race, ethnicity, marital status and disability. There is no comprehensive federal anti-discrimination legislation protecting sexuality, sex and gender diverse people despite the high levels of discrimination, vilification and harassment they experience in all aspects of daily life. While state and territories have anti-discrimination legislation that offers some protection on the grounds of sexuality and gender identity, legislation differs in terminology and degree of protection and broad exemptions also mean that sexuality, sex and gender diverse people are not adequately protected from unfair discrimination. Australia, as a signatory to a number of treaties, has an obligation to ensure that people are protected against discrimination on the basis of their sexuality. Given there is very limited protection against discrimination on the basis of sexuality the Federal Government should implement laws that ensure that sexuality, sex and gender diverse people are protected from unfair discrimination and are treated equally under the law. To ensure the broadest coverage, legislation should adopt terminology and definitions that are broad, inclusive and appropriate. Further, it is imperative that legislation ensures that establishing causation is achievable for applicants. Exemptions, if any, should not be permanent and bodies in receipt of public funding should be required to comply with anti-discrimination legislation, unless their primary objective is to promote the social and cultural identity of sexuality, sex and gender diverse people. Legislation should also include a positive duty to eliminate discrimination and promote equality for sexuality, sex and gender diverse people. In addition to anti-discrimination legislation, the Federal Government should introduce a ministerial portfolio on sexual orientation and gender and sex identity and provide appropriate secretarial support. Further, the Federal government should also appoint a Commissioner at the 鱨վ (AHRC) who is responsible for issues regarding sexual orientation, sex and gender identity. Education and training programs, or cultural sensitivity workshops, should be developed for public authorities, workplaces and schools to prevent discrimination and harassment. Increased funding to Community Legal Centres is also imperative to enable advice and representation for people complaining of discrimination and public interest-based organisations should be given standing to assist people make complaints under Federal anti-discrimination law. The Federal government should also remove the current discriminatory language in the Marriage Act 1961 (Cth) to allow all couples the right to marry. Recommendations In order to provide a strong platform for improving and protecting the rights of sexuality, sex and gender diverse people and respect for diversity in Australia, HNCLC recommends the following: Recommendation 1: The introduction of comprehensive Federal legislation that prohibits discrimination, vilification, intimidation and harassment on the grounds of a persons sexual orientation, gender identity or expression and intersex status. Recommendation 2: Legislation should include the express requirement that it be interpreted in accordance with Australias international legal obligations, including relevant provisions of CEDAW, ICCPR, ICESCR and ILO Conventions. Recommendation 3: The introduction and harmonisation of Federal anti-discrimination laws should promote best practice and ensure compliance with international legal standards. Recommendation 4: Legislation should provide for equality before the law, along the lines of s 10 of the RDA. Recommendation 5: Legislation should include a general prohibition against discrimination in all areas of public life, along the lines of s 9 of the RDA. Recommendation 6: Proposed anti-discrimination legislation should use broad terminology: sexual orientation, gender identity and expression and intersex and sex identity. Recommendation 7: Legislation should be define relationship status in gender-neutral terms to protect all non-married couples from relationship-based discrimination. Recommendation 8: Legislation should adopt a broad definition of discrimination. Recommendation 9: Legislation should ensure that establishing causation is achievable for applicants, by reversing the onus of proof in relation to establishing causation, along the lines of s 361 of the Fair Work Act 2009 (Cth). Recommendations 10: Exemptions should not be permanent. Organisations and groups seeking to rely on an exemption should be required to apply for certification. This should be reviewable every few years. Recommendation 11: All bodies in receipt of public funding should be required to comply with anti-discrimination law, with the exception of activities that have the primary objective of promoting the social and cultural identity of sexuality, sex and gender diverse people. Recommendation 12: Organisations with exemptions should be required to publicly state their reliance on a particular exemption to improve transparency and accountability. Recommendation 13: A savings clause should be introduced to ensure it is not unlawful to promote or partake in any activity that has a primary objective of promoting the social and cultural identity of sexuality, sex and gender diverse people. Recommendation 14: Legislation could include a positive duty to take reasonable steps to eliminate discrimination and promote equality for sexuality, sex and gender diverse people, in addition to the prohibition on discrimination. Recommendation 15: The appointment of a Commissioner in the 鱨վ with responsibility for issues regarding sexual orientation, sex and gender identity. Recommendation 16: The introduction of a ministerial portfolio on sexual orientation, sex and/or gender identity and expression and appropriate secretarial support. Recommendation 17: Development of education and training programs, or cultural sensitivity workshops, for government agencies, workplaces, schools and goods and services providers to prevent discrimination and harassment. Recommendation 18: Increase funding to Community Legal Centres to increase the provision of advice and representation to people making complaints under Federal anti-discrimination law. Recommendation 19: Allow public interest-based organisations to have standing to bring claims under proposed legislation. Recommendation 20: Remove the current discriminatory language in the Marriage Act 1961 (Cth), including the current ban on the recognition of overseas marriages under s 88EA, to allow all couples, regardless of sexual orientation or gender identity, the right to marry. NEED FOR FEDERAL LEGISLATION Conceptualising discrimination Discrimination on the basis of sexuality refers to treating someone, or someones associates, less favourably on the basis of their actual or perceived sexuality. The concept is usually raised in the context of discrimination against people who are gay, lesbian or bisexual. Discrimination broadly includes harassment, vilification and general unfavourable treatment. Discrimination, however, is rarely specific to one particular identity status or attribute. AHRC has noted that discrimination is rarely based on one groundexperience is compounded by other characteristics such as gender, disability, age, religious beliefs and sexuality. In this respect, it is important for any new pieces of legislation to consider the intersectional or multidimensional nature of individual experiences. It is also important to recognise the distinct discrimination faced by sex and gender diverse persons as an urgent area of inquiry. We believe that federal anti-discrimination legislation on the basis of sexuality only does not adequately cover sex and gender diverse people or the distinctive issues they face. The discrimination that a person faces because they are transgender relates to the expression and recognition of their gender identity rather than their sexuality. Including transgender or intersex protections within sexuality anti-discrimination legislation may produce assumptions that all sex and/or gender diverse people are gay, lesbian or bisexual, which is not the case. Many sex and gender diverse people consider themselves to be heterosexual. High levels of discrimination Research shows that sexuality, sex and gender diverse people experience high levels of discrimination, harassment and violence. Often, this discrimination is experienced in the workplace, in schools, and other areas of public and social life, including marriage. The NSW Gay and Lesbian Rights Lobby and University of Sydneys The Pink Ceiling is Too Low report, found that workplace discrimination and harassment towards gay men and lesbians is significant with over 50% of those surveyed reporting they had experienced harassment or discrimination in their current workplace; 21.7% of surveyed participants had been outed in the workplace against their will; and over 17% of participants felt that their careers had probably been restricted because of their non-heterosexual identity. Many sexuality, sex and gender diverse people face particular difficulty in accessing aged-care services. Over 89% of same-sex attracted people noted that they experienced judgmental or phobic attitudes from health care professionals. In 2003, the NSW Attorney-Generals Department released the report You Shouldnt Have to Hide to be Safe which documented the extent of homophobic abuse, violence and harassment in NSW. The report found that of the 600 gay and lesbian community members surveyed, over half of the respondents had experienced at least one form of harassment, abuse or violence in the preceding 12 months and 85% of respondents had experienced at least one form of harassment, abuse or violence at some stage in their lifetime. In 2006 the Private Lives national GLBTI health and well-being survey, conducted by the Australian Research Centre in Sex, Health and Society and Gay and Lesbian Health Victoria, found that 67% of participants said that fear of prejudice or discrimination because of their sexuality caused them, at least sometimes, to modify their daily activities in particular environments and 90% of participants had at some time avoided expressions of affection in public and disclosure of their gender identity or sexuality. A 2007 national study about the sexuality, health and wellbeing of same-sex attracted young people found that 38% of school students had encountered unfair treatment on the basis of their sexuality, 44% had been subject to verbal abuse and 16% had suffered physical abuse. The report found that 74% of all harassment, discrimination and abuse, experienced by same-sex attracted young people took place in school settings. According to the Whats the Difference? study prepared by the Victorian Ministerial Advisory Committee on GLBTI Health and Wellbeing in 2002, there remains considerable discrimination in aged-care and health services. Many people report self-censorship of their sexual identity, or returning to the closet, in order to avoid physical harassment or alienation from an institutional aged-care facility. There are poor levels of training in the public sector and limited support networks available for gender diverse and transitioning individuals. Many sex and/or gender diverse persons report inappropriate care due to a lack of sensitivity or understanding from aged-care and health service providers about their anatomical, biological and/or social differences. Lesbians and gay men in Australia continue to be subject to high levels of violence and harassment. A 2003 report by the NSW Attorney-General on homophobic and transphobic violence and harassment found that: 56% of lesbians and gay men had experienced homophobic abuse or violence in the previous 12 months; 85% of lesbians and gay men have experienced harassment or violence during their lifetime; and 73.5 per cent of transgender men and 69.7 per cent of transgender women report experiencing personal insults or verbal abuse. Whilst making discrimination against sexuality, sex and/or gender diverse persons unlawful is necessary, it is not sufficient on its own. Vilification and harassment of these groups is a significant issue and has been dealt with in a number of the state and territory Acts. Anti-vilification legislation on the basis of sexuality aims to redress the high levels of violence and harassment against lesbians, gay men by outlawing public acts which: incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality [transgender] of the person or members of the group. Statistics indicate there is an ongoing need for vilification legislation on the grounds of sexual orientation and sex and/or gender identity at a state level, and for such protections to be introduced at a federal level. Vilification protections should broadly encompass acts which intimidate, humiliate and vilify a person, as well as acts capable of inciting violence. The protection that such legislation provides against vilification and violence is imperative if society is to reduce crimes against sexuality, sex and gender diverse people. Limited legal protections State and territories have anti-discrimination legislation that offers some protection on the grounds of sexuality and gender identity, but the legislation differs in terminology and degree of protection. It is important to note that no legislation includes protection on the grounds of intersex status. Broad exemptions also mean that sexuality, sex and gender diverse people are not adequately protected from unlawful discrimination. There is no federal anti-discrimination act that protects sexuality, sex and gender diverse people from discrimination, harassment or vilification. There is limited protection against discrimination on the grounds of sexual preference in employment under Divisions 2, 3 and 4 of Part II of the 鱨վ Act 1986 (Cth) (AHRC Act). AHRC can inquire into complains of discrimination by the Commonwealth or its agents or discrimination in employment and can make recommendations to Parliament, however the recommendations are not enforceable. Federal industrial law also prohibits unfair dismissal and adverse action on the basis of a persons sexual preference, however, sex and/or gender identity is a notable omission. In addition, s 109 of the Constitution means that any state laws that are inconsistent with federal laws are inoperative to the extent of the inconsistency. Inconsistent coverage between states and between states and the Commonwealth produces anomalous results and creates uncertainty around protection. For example, there is discrimination protection for public school teachers, because they are covered by state legislation. However no such coverage exists for university lecturers, covered by Federal legislation. Similarly, discrimination protection in insurance policies is excluded from state laws because these are fully federal areas (e.g. family and couples). International obligations The Federal Government has authority to enact legislation in relation to international treaties Australia is a signatory to under the external affairs power of the Constitution (s 51(xxix)). Australia is a signatory to a number of treaties which indirectly provide protections against discrimination on the basis of sexuality, either under sex or other status categories. These include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC) and the Discrimination (Employment and Occupation) Convention (ILO). The ILO provides that countries must ensure that they eliminate employment-related discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction and social origin. The Convention also allowed countries to add additional criteria and in 1989 Australia added the criteria of sexual preference. Article 2 of the ICCPR requires Australia to ensure that all individuals are protected against discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 of the ICCPR guarantees equality before the law and the right to non-discrimination. In 2008, the Yogyakarta Principles were drafted by the International Commission of Jurists to promote international human rights obligations towards sexual and gender minorities. While these principles are not legally binding instruments, they act as persuasive interpretations of binding human rights treaties and relate to people of all sexual orientations and gender identities. In the cases of Toonen v Australia, Young v Australia and X. v Colombia, the UN Human Rights Committee has clearly articulated that the ICCPR prohibits discrimination on the basis of sexual orientation. Therefore the Commonwealth could rely on the external affairs power to implement a federal sexuality anti-discrimination law in accordance with its obligations under the ICCPR. In Toonen, the Committee found that Tasmanias criminal prohibition on male/male sexual activity breached the right to privacy (Article 17(1)) and right to non-discrimination (Article 2(1)) under the ICCPR. Eight years later, in Young, the Committee found that the Commonwealths refusal to provide an entitlement to a member of a same-sex couple amounted to a violation of their right to equal protection under the law (Article 26). While, in Toonen v Australia, the Committee concluded that the basis of discrimination on grounds of sexuality was in the term sex, in Young v Australia the Committee found that that basis of that discrimination was in other status. The Committee decided in the case of X v Columbia that the decision in Toonen that sexual discrimination could be included in the category of sex was incorrect, which suggests that other status is the basis on which gay men and lesbians are protected from discrimination. These treaties do not give rise to legal obligations in Australian law until Australia enshrines the protections in domestic legislation. The 鱨վ Act 1986 (Cth) (AHRC Act) empowers AHRC to monitor whether Australia complies with its obligations under ICCPR, ILO 111 and CRC. Well-settled rules of statutory construction establish that domestic legislation should be interpreted and applied consistently with Australias obligations under international law. These rules have particular application where a domestic statute gives effect to Australias obligations under a particular international treaty or convention, in which case the statute should be interpreted in a manner consistent with that treaty or convention. HNCLC believes that legislation should provide guidance as to how its provisions are to be interpreted with respect to Australias international legal obligations, as is provided in the Human Rights Act 2004 (ACT) and the Charter of Rights and Responsibilities Act 2006 (Vic). For example, section 32 of the Victorian Charter provides: (1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision. HNCLC considers that an explicit direction within any new legislation will codify this common law principle and will help to clarify this point for courts and litigants. It will also assist in ensuring that the legislation is applied consistently with CEDAW and relevant international obligations under the ICCPR, ICESCR and ILO Conventions in all cases. It would also help to elevate this presumption of statutory construction above the melee of competing presumptions. Existing protections for sexuality, sex and gender diverse people are limited. Australia is a signatory to a number of treaties and is required to provide protections against discrimination on the grounds of sexuality, either under sex or other status categories. Comprehensive federal anti-discrimination legislation is needed to address and protect sexuality, sex and gender diverse people from unfair discrimination, harassment and violence. Recommendation 1: The introduction of comprehensive Federal legislation that prohibits, discrimination, vilification, intimidation and harassment on the grounds of a persons sexual orientation, gender identity or expression and intersex status. Recommendation 2: Legislation should include the express requirement that it be interpreted in accordance with Australias international legal obligations, including relevant provisions of CEDAW, ICCPR, ICESCR and ILO Conventions. CONTENTS OF LEGISLATION Human rights framework Following a National Human Rights Consultation in 2009, the Australian Government promised to introduce and implement a human rights framework to promote human rights. As part of the human rights framework the Government advised that it would harmonise all the federal anti-discrimination Acts into one Equality Act. HNCLC commends the Government both for its consolidation project and the eagerness with which it intends to implement this project. HNCLC believes that the harmonisation process and the inclusion of any provisions protecting sexuality, sex and gender diverse people from discrimination should fulfill the following objectives: Ensure laws comply with international human rights standards; Promote best practice models rather than the lowest common denominator from each jurisdiction; Provide greater clarity about the practical application of equality rights and responsibilities in specific contexts; Reduce the transactional costs for both applicants and respondents; and Promote access to justice, with particular focus on improving access for people who are mostly intensely affected by inequality and violation of other human rights in Australia. Recommendation 3: The introduction and harmonisation of federal anti-discrimination legislation should promote best practice and ensure compliance with international legal standards. Right to equality A number of Australian laws have been introduced to incorporate elements of the above treaties, but none have been incorporated in their entirety. Section 10 of the Racial Discrimination Act 1975 (RDA) provides a general right to equality before the law, implementing Australias obligations under article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination to guarantee the right to everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law. The purpose of s 10 is not to make acts, omissions or practices of individuals unlawful, but rather is concerned with the operation and effect of laws. To make a successful claim under s 10, the applicant must be able to show that: (d) by reason of a law of the Commonwealth or of a State or Territory (or a provision of the law); (e) persons of a particular race, colour or national or ethnic origin: i. do not enjoy a right that is enjoyed by persons of another race; or ii. enjoy a right to a more limited extent than persons of another race. Accordingly, the applicant must be able to establish that the discrimination complained of arises by reason of the terms or practical effects of a statutory provision. However, in assessing whether particular legislation limits the enjoyment of the rights of a particular racial group, the courts have acknowledged that the enjoyment of rights in most cases is not absolute, but may involve a balancing against competing rights and interests. For example, in the case of Bropho v Western Australia [2008] FCAFC 100, the Full Federal Court held that, in applying s 10, it is necessary to recognise that some rights, such as property rights, are not absolute in their nature. Accordingly, actions that impact upon the ownership of property may not necessarily invalidly diminish the right to ownership of property. The Court held that no invalid diminution of property rights occur where the State acts in order to achieve a legitimate and non-discriminatory public goal. The Court noted, however, that its reasoning was not intended to imply that basic human rights protected by the [RDA] can be compromised by laws which have an ostensible public purpose but which are, in truth, discriminatory. Legislation prohibiting discrimination on the grounds of sexual orientation, gender identity and expression and intersex and sex identity should include a right to equality before the law to ensure the implementation of Australias international obligations under article 26 of the ICCPR, which guarantees equality before the law and the right to non-discrimination. Recommendation 4: Legislation should provide for equality before the law, along the lines of s 10 of the RDA. General prohibition against discrimination Article 1 of CEDAW introduces a free-standing prohibition against discrimination in the enjoyment or exercise by women of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Accordingly, the scope of CEDAW is not confined to specific areas of public life, but operates more generally. The language of Article 1 of CEDAW follows closely the equivalent Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination, which finds expression in s 9 of the RDA and contains a free-standing prohibition in s 9 against racial discrimination in all areas of public life. The RDA is a more complete and faithful implementation of Australias international obligations in relation to prohibiting discrimination. CEDAW, as well as the ICCPR and ICESCR, imposes an obligation on Australia to take appropriate and positive steps to ensure that individuals who have been discriminated against have access to an effective remedy. Indeed, the Human Rights Committee has stated that the failure to provide an effective remedy is itself a breach of a persons human rights. HNCLC considers that when individuals have been discriminated against in circumstances in which CEDAW (and other relevant international conventions) applies, they should be entitled to an effective remedy. For the above reasons, HNCLC considers that the inclusion of a free-standing prohibition against discrimination, along the lines of s 9 of the RDA, may be required to ensure compliance with Australias obligations under CEDAW. HNCLC also notes that the experience under the RDA has not shown this to present impracticalities or excessive burdens on the community. Furthermore, HNCLC is of the view that a blanket prohibition against discrimination in all areas of public life could represent an important statement of principle. It should make clear that discrimination offends against fundamental human rights in any area of public life and will not be tolerated. This point was noted by both the Australian Law Reform Commission (ALRC) and the House of Representatives Standing Committee on Legal and Constitutional Affairs in their respective reviews of the SDA, and each recommended the enactment of a free-standing prohibition against sex discrimination along similar lines as the RDA. A blanket prohibition against discrimination in all areas of public life would also make any new legislation clear and simple. It would minimise the need for complex litigation in interpreting the various provisions giving coverage to specific areas of public life and would operate largely as a catchall provision. Recommendation 5: Legislation should include a general prohibition against discrimination in all areas of public life, along the lines of s 9 of the RDA. Terminology While HNCLC makes recommendations below regarding what terminology should be used in the proposed legislation, we believe that final terminology used should be developed in consultation with sexuality, sex and gender diverse communities. Sexual orientation The terms used to define sexuality in legislation vary from state to state. The Northern Territory, Queensland, South Australia, and Australian Capital Territory anti-discrimination and equal opportunity acts use the term sexuality; whilst Tasmania, Victoria and Western Australia use the phrase sexual orientation, and New South Wales uses the more specific term, homosexuality. HNCLC advocates for the use sexual orientation as it is an inclusive and broad term, which would provide protection against discrimination for people who identify as gay, lesbian, bisexual and heterosexual. Gender Identities and Expressions Most state and territory statutes identify their gender identity ground as a separate ground of discrimination. Victoria, Queensland and the Australian Capital Territory have a ground worded as gender identity, whilst South Australia has a ground of chosen gender. The Western Australian Act provides a very narrow ground in that it only prohibits discrimination on the ground of gender history against a gender reassigned person. The New South Wales statute has a ground of transgender and also some additional discrimination protections that relate to a recognised transgender person. Neither the Northern Territory statute nor the Tasmanian Act contains a separate gender identity ground. They both include transsexuality within their sexuality ground. The Northern Territory statute does not define transsexuality. The Tasmanian definition of transsexuality is relatively broad and includes identifying as a member of the other sex. Apart from these narrower concepts of a gender reassigned person and recognised transgender person, the gender identity grounds generally cover a person who lives, or seeks to live, as a member of their preferred gender, and/or has assumed characteristics of that gender (whether by way of medical intervention or not). Gender relates to a complex set of cultural practices and social identities, therefore terminology to protect gender diverse persons must be broad in coverage to incorporate characteristics and identities and not limited to the legal recognition of a particular sex. Current definitions in state and territory legislation are too narrow. A Bill currently before the United States Senate contains an interestingly worded gender identity ground. The Bill for the Employment Non-Discrimination Act of 2009 (S. 1584) adds new grounds of sexuality and gender identity to the current federal protections against discrimination in the employment context. In the Bill the term gender identity is defined to mean the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individuals designated sex at birth. Several districts and states in the United States already include similarly broad understandings of gender identity in their anti-discrimination provisions. The wording of the Bill has a number of advantages over the narrower Australian definitions that only protect people who identify as a member of the opposite or other sex. In addition to avoiding the use of words such as these that assume two stable and exclusive categories of sex, the Bill protects people who experience discrimination because of the way they express their gender, including through their appearance and mannerisms, regardless of whether they identify as having a sex that is different to their designated sex at birth. This would protect, for example, women who are discriminated against because they are seen as being butch, and men who are treated less favourably because their employer views them as effeminate. Including a reference to gender expression, broadens the application of gender identity by targeting practices and behaviours of a person that is generally associated with a particular sex (whether or not the person is of that sex). Instead of focussing on legal sex, legislation must prohibit discrimination against a person who chooses to perform their gender role atypically or fails to conform to a particular social norm attributed to their assumed sex. Intersex and Sex Identity There are no statutes that explicitly use the language of intersex, however Western Australia, Northern Territory and Tasmania make mention of indeterminate sex., Whether this extends to intersex people is unclear. Intersex is complex to define, as it relates to a number of genetic and anatomical bodily features. According to Oii Australia, intersex is defined as: individuals, have genetic, hormonal and physical features that may be thought to be typical of both male and female at once. That is, we may be thought of as being male with female features, female with male features, or indeed we may have no clearly defined sexual features at all. While a person may not have a defined sexual feature or features that mark them as being male or female, they may not identify themselves as intersex. They may identify as male or female or may not identify as any sex. HNCLC advocates for the use of the terminology intersex and sex identity to ensure all people who do not have a determinate sex are protected from discrimination, regardless of whether they identity as intersex or not. Relationship Status Relationship status relates to having been or purporting to be in a living situation with or without a de facto partner or spouse. Currently, there is no coverage for non-marital relationship statuses in federal anti-discrimination laws. People living in same-sex and heterosexual de facto relationships are recognised under the majority of state, territory and federal laws. Extending the scope to relationship status in federal anti-discrimination laws would be consistent with state and territory anti-discrimination laws. Recommendation 6: Proposed anti-discrimination legislation should use broad terminology: sexual orientation, gender identity and expression and intersex and sex identity. Recommendation 7: Proposed legislation should be define relationship status in gender-neutral terms to protect all non-married couples from relationship-based discrimination. Broad coverage Given that all of the federal and state anti-discrimination Acts categorise types of discrimination based on direct and indirect discrimination, any proposed federal federal anti-discrimination legislation on the grounds of sexual orientation, gender identity and expression and intersex and sex identity should also prohibit direct and indirect discrimination based on equivalent provisions for sex discrimination under the SDA. Additionally, to ensure that any proposed federal anti-discrimination legislation on the grounds of sexual orientation, gender identity and expression and intersex and sex identity represents best practice in providing the most effective means of achieving substantive equality, the definitions of discrimination should include the following: coverage for proposed treatment; coverage for disadvantage suffered as a result of an association with a person with a protected attribute or characteristic; the direct discrimination should include characteristics that are generally imputed by the alleged discriminator, even if not generally imputed by others. Recommendation 8: Legislation should adopt a broad definition of discrimination. Causation The causation element requires the applicant to establish that the relevant treatment complained of was by reason of his or her protected attribute or a characteristic generally appertaining or imputed to that attribute. The authorities make clear that in establishing causation, an applicant need not prove that the respondent was actuated by a discriminatory motive or ill-intent. However, the applicant must nevertheless establish a causal nexus between the relevant treatment and the relevant attribute. This requires an assessment of why the respondent acted as it did, by asking what was the true basis or real reason for the relevant treatment. There are a number of additional difficulties for an applicant in establishing the causation element. Notwithstanding that a discriminatory motive is not required, the courts assessment almost invariably involves an inquiry into the respondents state of mind. This is a notoriously difficult and imprecise line of inquiry. As Kirby J pointed out in IW v City of Perth (1997) 191 CLR 1, typically, human motivation is complex and [d]iscriminatory conduct can rarely be ascribed to a single reason or ground. HNCLC recommends that the approach taken under s 361 of the Fair Work Act 2009 should be adopted to alleviate the difficulties for an applicant in establishing the causation element. Pursuant to s 361, in claims alleging an employer has discriminated against a person for a proscribed reason (including sexual preference), the onus is on the respondent to establish that the termination was not for a proscribed reason. Recommendation 9: Legislation should ensure that establishing causation is achievable for applicants, by reversing the onus of proof in relation to establishing causation, along the lines of s 361 of the Fair Work Act 2009 (Cth). Exemptions HNCLC would like to make clear that following section should not apply to activities which have the primary objective of promoting the social and cultural identity of sexuality, sex and gender diverse people. This will be discussed further below under Special measures. One of the most significant deficiencies with existing provisions in state and territory anti-discrimination legislation is the wide-ranging discretionary exemptions and exceptions which allow discrimination on the basis of sexuality or gender identity in some areas. The most noteworthy of these areas include: private or religious schools and educational authorities; religious institutions; religious beliefs and principles, working with children, work in small businesses; work in a private household; and the provision of accommodation services in certain circumstances. These exemptions mean there are numerous areas where it is lawful to discriminate against sexuality, sex and gender diverse people. Like most human rights, the right to equality is inherently qualified to the extent necessary to strike an appropriate balance with competing rights and interests. The UN Human Rights Committee has stated that: not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. Similarly, in Sporong and Lonroth v Sweden (1982) 5 EHRR 35, the European Court of Human Rights observed: The Court must determine whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individuals fundamental rights. The search for this balance is inherent in the whole of the [European Convention on Human Rights]. The search for an appropriate balance between sameness or difference of treatment, and between competing rights and interests goes to the heart of what anti-discrimination laws seek to achieve. Ideally, no individual, organisation or institution should be able to discriminate against anyone on the grounds of his or her sexuality under any circumstances. From a practical perspective however, it would be unrealistic to expect the creation of an Act without any exemptions. The right for a private religious body to discriminate, for example, might be considered palatable, if the right to discriminate was relinquished as soon as that religious organisation accepted government funds, or, as soon as that religious organisation or body commenced providing social or welfare services. Currently, a vast range of public social and welfare services, such as adoption and aged-care services, are contracted out to non-government organisations (NGOs) and those NGOs receive funding from government to provide those services. Religious organisations and other organisations should not be exempt from anti-discrimination law if they perform secular services funded by the government and it should be condition that on receipt of public funds that there be compliance with anti-discrimination legislation. To ensure transparency and accountability, organisations that have been granted temporary exemptions, should be required to publicly state their reliance on a particular exemption. Recommendation 10: Exemptions should not be permanent. Organisations and groups seeking to rely on an exemption should be required to apply for certification. This should be reviewable every few years. Recommendation 11: All bodies in receipt of public funding should be required to comply with anti-discrimination law, with the exception of activities that have the primary objective of promoting the social and cultural identity of sexuality, sex and gender diverse people. Recommendation 12: Organisations with exemptions should be required to publicly state their reliance on a particular exemption to improve transparency and accountability. Special measures In some circumstances it may be appropriate to treat sexuality, sex and gender diverse people differently where the different treatment is beneficial to achieving equality for them. The Senate Inquiry into the Sexuality Discrimination recommended that special-needs groups should be allowed to seek exemptions from anti-discrimination legislation to enable the delivery of positive discrimination measures to overcome past disadvantage. For example, sexuality-specific health services could apply for exemptions from providing services to the broader community. Section 61 of the Victorian Equal Opportunity Act 1995 provides an exception for disadvantaged groups or minority cultures: A club, or a member of the committee of management or other governing body of a club, may exclude from membership a person who is not a member of the group of people with an attribute for whom the club was established if the club operates principally- (a) to prevent or reduce disadvantage suffered by people of that group; or (b) to preserve a minority culture. The legislation should include a savings clause to allow activities that have the primary objective of promoting the social and cultural identity of sexuality, sex and gender diverse people exemption from anti-discrimination laws. An example of an appropriate savings clause may be: Nothing in this Act makes unlawful any activity, one of the primary objectives of which is to preserve, protect or promote the social, cultural or sexual identity of the lesbian, gay or transgender communities. Recommendation 13: A savings clause should be introduced to not make unlawful any activity that has a primary objective of promoting the social and cultural identity of sexuality, sex and gender diverse people. Positive duty Typically, discriminatory conduct is prohibited, rather than non-discriminatory or other positive conduct being required. For example, the indirect discrimination provisions in the SDA effectively prohibit employers from imposing unreasonable requirements, conditions or practices that disadvantage women with family responsibilities, rather than imposing a positive obligation to reasonably accommodate the needs of workers with family responsibilities. However in the context of disability discrimination there has been an increasing shift towards imposing positive obligations on employers, educators, service providers and other would be respondents to take reasonable steps to improve access and equality for people with disabilities. For example, the Disability Standards for Accessible Public Transport 2002 (Transport Standards) introduced fixed targets and detailed compliance criteria for operators and providers of public transport to ensure that transport premises, conveyances and related infrastructure meet specified minimum standards of accessibility. Again, non-compliance with the Transport Standards constitutes unlawful discrimination of itself. Section 24 of the Anti-Discrimination Act (NT) sets out a positive obligation to accommodate the special needs of a person arising due to their sex, disability or other protected attribute. HNCLC supports the addition of a positive duty provision in legislation, requiring appropriate reasonable steps to be taken to eliminate discrimination and promote equality for sexuality, sex and gender diverse people. This would improve the effectiveness of any proposed legislation, support systemic change and would be consistent with Australias obligations under CEDAW. HNCLC recognises that the move towards the adoption of a positive duty to eliminate discrimination and promote equality may require further consultation to identify the way in which a positive duty should be defined, and how it should be applied. Recommendation 14: Legislation could include a positive duty to take reasonable steps to eliminate discrimination and promote equality for sexuality, sex, and gender diverse people, in addition to the prohibition on discrimination. ADDITIONAL MEASURES Promoting a culture of non-discrimination Legislative change, though important, is not sufficient to deal with all identity-based discrimination targeting sexuality, sex and gender diverse people. In order to ensure effective implementation and enforcement of anti-discrimination, a number of key mechanisms need to be established. There are two Commissioners working within the AHRC who are responsible for the oversight of complaints in relation to each of the federal anti-discrimination acts. Mr Graeme Innes AM is the Disability Discrimination Commissioner and Race Discrimination Commissioner and Elizabeth Broderick is the Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination. It is our submission that a Commissioner should be appointed who is responsible for the oversight of complaints regarding sexual orientation, gender identity or expression and intersex status. There is currently a Minister for the Status of Women. A ministerial portfolio should be created, with a minister directly responsible for the concerns of sexuality, sex and gender diverse people in Australia. While anti-discrimination legislation is remedial in character, its underlying purpose is to eliminate unfair discrimination. The objects of the SDA are: (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and (b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and (ba) to eliminate, so far as possible, discrimination involving dismissal of employees on the ground of family responsibilities; and (c) to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational institutions and in other areas of public activity; and (d) to promote recognition and acceptance within the community of the principle of the equality of men and women. In order to effect systemic change and prevent discrimination and harassment, specific education and training programs and cultural sensitivity workshops addressing issues particular to sexuality, sex and gender people should be developed and delivered to government agencies, workplaces, schools and goods and services providers. Recommendation 15: Appointment of a Commissioner in the 鱨վ with responsibility for issues regarding sexual orientation, sex and/or gender identity. Recommendation 16: Introduction of a ministerial portfolio on sexual orientation, sex and/or gender identity and expression and appropriate secretarial support. Recommendation 17: Development of education and training programs, or cultural sensitivity workshops, for government agencies, workplaces, schools and goods and services providers to prevent discrimination and harassment. Increased funding to Community Legal Centres It is important that people who are considering making a complaint of unlawful discrimination, particularly people from low socio-economically disadvantaged and marginalised backgrounds, have the benefit of accessing free legal advice and assistance such as that provided by community legal centres (CLCs). HNCLC and other CLCs advise, draft complaints and represent clients in discrimination matters. Discrimination law is a complex and complicated area of law and without access to free legal services, many people in our community would not be able to properly articulate complaints of discrimination and would not be able to make use of anti-discrimination legislation available for their protection. CLCs are non-government organisations and rely, to a large degree, on state, territory and Commonwealth government funding. The extent to which CLCs are able to assist clients is dependent on the amount of funding we receive. Increased funding would allow CLCs to provide greater assistance to people to make complaints under federal anti-discrimination law. Recommendation 18: Increase funding provided to Community Legal Centres to assist people make complaints under federal anti-discrimination law. Extend standing to bring proceedings Standing to lodge a complaint with AHRC under the federal anti-discrimination Acts and subsequently, to commence proceedings in the Federal Court or Federal Magistrates Court derives from the 鱨վ Act 1986 (Cth) (AHRC Act). The standing provisions are therefore the same for all of the federal discrimination acts. However, under s 46P of the AHRC Act, standing is limited to a person aggrieved, which is defined to mean a person on behalf of whom the complaint was lodged with AHRC. The upshot of this distinction is that, whilst a person or organisation may lodge a complaint with AHRC on behalf of a person (or persons) aggrieved by the offending conduct, it is then up to the aggrieved person (or persons) to pursue their claim through the courts on their own. An example of the limits caused by the application of s 46P can be seen in the matter of Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 (Access for All), where Collier J held that an incorporated disability rights organisation lacked standing to commence proceedings in relation to a number of bus stops that allegedly contravened the Disability Standards for Accessible Public Transport 2002. The court held that, whilst the organisations individual members may have been aggrieved by the inaccessible bus stops, the organisation itself was not so aggrieved because it did not use bus stops. The decision in Access for All has highlighted an unfortunate barrier in the legislation that prevents public interest-based organisations from pursuing complaints in the courts in the vast majority of cases, even if the very purpose of the organisations existence is to tackle such issues. In light of the widely reported difficulties, costs and pressures faced by individuals in pursuing a claim of discrimination through the courts, often against well-resourced respondents, provisions which limit standing for public-interest based organisations significantly undermine the capacity of anti-discrimination legislation to bring about systemic change. For example, as the Public Interest Law Clearing House noted in its submission to the Equality Opportunity Review in Victoria: Given the very nature of discrimination and the difficulties that victims face in bringing claims, in order to be effective it is imperative that representative bodies have the power to bring complaints on behalf of victims who are often disadvantaged and may not have the means to commence costly litigation. The important role of civil society, NGOs and other public interest organisations in contributing to systemic outcomes has been widely proclaimed on the international stage. For example, the Chair of the Panel of Eminent Persons on United NationsCivil Society Relations, Fernando Henrique Cardoso, has stated that: The rise of civil society is indeed one of the landmark events of our times. Global governance is no longer the sole domain of Governments. The growing participation and influence of non-State actors is enhancing democracy and reshaping multilateralism. Civil society organizations are also the prime movers of some of the most innovative initiatives to deal with emerging global threats. HNCLC considers that there are sound reasons of public policy to enable appropriate organisations with a legitimate interest in a particular subject matter to commence discrimination proceedings particularly where the claim involves a systemic problem that affects a wide class of persons. HNCLC notes that a similar conclusion was reached by the ALRC in its two comprehensive reviews of the rules of standing, where it recommended a significant overhaul to facilitate the bringing of public interest-based litigation by individuals and organisations. HNCLC also notes that there is precedent for such an approach in other legislative contexts. For example, under the Classification (Publications, Films and Computer Games) Act 1995 (Cth), review of a classification decision by the Classification Board may be sought by a person aggrieved, which is defined to include (in most cases): (a) a person who has engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the publication, film or computer game concerned; and/or (b) an organisation or association, whether incorporated or not, whose objects or purposes include, and whose activities relate to, the contentious aspects of that theme or subject matter. HNCLC considers that the above approach provides a suitable model for amending the standing provisions under the AHRC Act. It provides greater flexibility for the courts in assessing whether an applicant has a legitimate interest in bringing the claim, even if their interest is indirect, vicarious or simply as a matter of principle. Given that discrimination laws protect fundamental human rights, HNCLC considers that there is a broad public interest in facilitating, rather than limiting, the bringing of appropriate claims. To the extent that courts or respondents may have concerns over wasting of resources by busy body complaints, these concerns could be addressed by the proposals discussed above, together with the existing powers of the court to control their own proceedings, including by summarily dismissing vexatious or hopeless claims.. HNCLC notes that commencement of an action by a public interest organisation should not affect the remedies that are available for an individual who is alleging a breach of the relevant anti-discrimination legislation. Recommendation 19: Allow public interest-based organisations to have standing to bring claims under proposed legislation. Marriage Same-sex de facto relationships are legally recognised under federal, state and territory laws however same-sex couples cannot marry. While some Australian states offer relationship register schemes to recognise partnerships as a means to provide greater relationship recognition, these registry schemes are not a substitute for full marriage equality. Tiering different kinds of conjugal relationships on the basis of sexual orientation promotes a relationship hierarchy with same-sex relationships being considered as inferior or lesser than heterosexual married couples. In 2004, the Marriage Act 1961 was amended to expressly define marriage as a union between a man and a woman, to the exclusion of others voluntarily entered into for life. The change in definition explicitly excluded same-sex couples from marrying. Section 88EA was also inserted prohibiting the recognition of overseas same-sex marriages in Australia. Article 2(1) and 26 of the ICCPR provides that all people have the right to live free from unfair discrimination and should be treated equally before the law. Sexual orientation has been included as a valid category of discrimination under as other status. In a holistic reading of the ICCPR, the definition in the Marriage Act breaches these international human rights principles by discriminating against same-sex couples on the basis of their sexual orientation. Marriage is a civil institution, created by secular laws, to which all people should have access, regardless of their sex, sexual orientation or gender identity. Recommendation 20: Remove the current discriminatory language in the Marriage Act 1961 (Cth) including the current ban on the recognition of overseas under s 88EA, to allow all couples, regardless of sex, sexual orientation or gender identity, the right to marry.  We have chosen to use the phrase sexuality, sex and gender diverse people instead of the commonly used acronym LGBTI, as it is broader and more inclusive and respects the diversity of sexualities, identities and expressions of people who do not identify as part of the mainstream heterosexual community.  Federal Discrimination Law 2005, Human Rights and Equal Opportunity Commission, p. 29.  Irwin, J., The Pink Ceiling is Too Low, Workplace experiences of lesbians, gay men and transgender people, 2002.  See Ministerial Advisory Committee on Gay and Lesbian Health, Whats the difference?: health issues of major concern to gay, lesbian, bisexual, transgender and intersex (GLBTI) Victorians Melbourne: Department of Human Services 2002 available at HYPERLINK "http://www.health.vic.gov.au/glbtimac/downloads/health_sexual_div.pdf"www.health.vic.gov.au/glbtimac.  You Shouldnt Have to Hide to be Safe A Report on Homophobic Hostilities and Violence Against Gay Men and Lesbians in NSW, NSW Attorney-Generals Department, Crime Prevention Division, 2003.  Pitts, M. et al, Private Lives A Report on the Health and Wellbeing of GLBTI Australians, 2006, Gay and Lesbian Health Victoria and the Australian Research Centre in Sex, Health and Society, p. 11.  Hillier, L., Turner, A., and Mitchell, A., Writing Themselves In Again: 6 years on, The 2nd national report on the sexual health & well-being of same-sex attracted young people in Australia, Australian Research Centre in Sex, Health & Society, (ARCSHS), La Trobe University, 2007, p. vii.  Ministerial Advisory Committee on Gay and Lesbian Health, Whats the difference?: health issues of major concern to gay, lesbian, bisexual, transgender and intersex (GLBTI) Victorians Melbourne: Department of Human Services 2002, p. 43, available at HYPERLINK "http://www.health.vic.gov.au/glbtimac/downloads/health_sexual_div.pdf"www.health.vic.gov.au/glbtimac.  NSW Attorney-Generals Department, Crime Prevention Division, You Shouldnt Have to Hide to be Safe A Report on Homophobic Hostilities and Violence Against Gay Men and Lesbians in NSW, 2003 and Pitts, M., Smith, A., Mitchell, A., & Patel, S. (2006). Private Lives: A Report on the Wellbeing of GLBTI Australians, Melbourne: Australian Research Centre in Sex, Health and Society, La Trobe University.  Anti-Discrimination Act 1977 (NSW), s 49ZT and s 49ZTA; Discrimination Act 1991 (ACT), ss 66(1)(b) and 67; Anti-Discrimination Act 1991 (Qld), s 124A; Anti-Discrimination Act 1998 (Tas), s 19.  Anti-Discrimination Act 1977 (NSW), s 38S.  See, for example, Anti-Discrimination Act 1977 (NSW), s 49ZT.  Refer to Terminology for more detailed discussion.  Fair Work Act 2009 (Cth), ss 153, 186(4), 194, 195, 342, 351, 772(1)(f).  The external affairs power was used to enact the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), and the Age Discrimination Act 2004 (Cth). Department of Foreign Affairs and Trade, Treaties and Treaty Making, HYPERLINK "http://www.dfat.gov.au/treaties/making/making3.html.%20Viewed%205%20November%202007"http://www.dfat.gov.au/treaties/making/making3.html. Viewed 5 November 2007.  Recent international jurisprudence suggests that other status is the correct approach. See X v. Colombia. UNHRC, 2007, Unreported.  The Human Rights and Equal Opportunity Regulations state that for the purposes of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), discrimination includes discrimination on the grounds of sexual preference. See Human Rights and Equal Opportunity Commission Regulations 1989 (Cth), No 407 4(a)(ix).  International Commission of Jurists, The Yogyakarta Principles: Principles On The Application Of Human Rights Law In Relation To Sexual Orientation and Gender Identity (2007), HYPERLINK "http://www.yogyakartaprinciples.org/principles_en.htm"http://www.yogyakartaprinciples.org/principles_en.htm.  (488/92) UN Doc. CCPR/C/50/D/488/92.  (941/2000) UN Doc. CCPR/C/78/D/941/2000.  UNHRC, 2007, Unreported.  Ibid.  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, May 2007, p. 36.  See, eg, Dietrich v R (1992) 177 CLR 292 at 321 (Brennan J), 360 (Toohey J); Minister for Immigration and Ethnic Affais v Teoh (1995) 183 CLR 273 at 286-7 (Mason CJ and Deane J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ). See further D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed,2006), 38-42, 75-8.  See, eg, Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 265 (Brennan J); Yager v R (1977) 139 CLR 28 at 43-4 (Mason J); Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 at 230-1 (Brennan J). See further D C Pearce and R S Geddes, Statutory Interpretation in Australia(6th ed, 2006), 38-9.  Mabo v Queensland (1988) 166 CLR 186, 230 (Deane J).  Sahak v Minister for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35] (Goldberg and Hely JJ). See further HNCLC, Federal Discrimination Law (2008), 35-6.  See Gerhardy v Brown (1985) 159 CLR 70, 81 (Gibbs CJ), 92-93 (Mason J) and 119 (Brennan J); Mabo v Queensland (1988) 166 CLR 186, 198 (Mason CJ), 204 (Wilson J), 216 (Brennan, Toohey and Gaudron JJ) and 242 (Dawson J); Western Australia v Ward (2002) 213 CLR 1, 98 [103] and 107 [126] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Bropho v Western Australia [2008] FCAFC 100, [73]; Sahak v Minister for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35] (Goldberg and Hely JJ); Bropho v Western Australia [2008] FCAFC 100, [64], [73].  Ibid [83], see generally [80]-[83].  Ibid [82]. In Bropho, the Reserves (Reserve 43131) Act 2003 (WA) (Reserves Act) and actions taken under it were said to have limited the enjoyment of the property rights of the Aboriginal residents of the Swan Valley Nyungah Community (Reserve 43131) by, in effect, closing that community. The Court held that any interference with the property rights of residents was effected in accordance with a legitimate public purpose, namely to protect the safety and welfare of residents of the community. It therefore did not invalidly diminish the property rights of the residents.  The specific provisions do not limit the generality of s 9: Racial Discrimination Act 1975 (Cth) s 9(4). See further Gerhardy v Brown (1985) 159 CLR 70, 85 (Gibbs CJ).  CEDAW art 2; ICCPR art 2(3); and ICESCR art 2.  Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), [15]-[17].  Australian Law Reform Commission, Equality Before the Law: Womens Equality, Report No 69, pt II (1994), Recommendation 3.1; House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992), Recommendation 60. For example, the Committee noted (at 260 [10.3.7]): As discrimination against an individual on the basis of race or sex should be regarded as a contravention of a basic right, the Committee believes that it is desirable to bring the Sex Discrimination Act in line with the general prohibition contained in the Racial Discrimination Act.  Anti-Discrimination Act (NT), s 19(c); Anti-Discrimination Act 1991 (Qld), s 7(n); Equal Opportunity Act 1984 (SA), s 29(b); Discrimination Act 1991 (ACT), s 7(1)(b).  Anti-Discrimination Act 1998 (Tas), s 16(c); Equal Opportunity Act 1996 (Vic), s 6(6) (1); Equal Opportunity Act 1984 (WA), s 35O.  Anti-Discrimination Act 1977 (NSW), pt 4C, s 49ZG.  EOA (Vic) s 6(ac), s 4(1) definition of gender identity; ADA (Qld) s 7(m), s 4 and Dictionary definition of gender identity; DA (ACT) s 7(1)(c), s 2, Dictionary definition of gender identity.  EOA (SA) s 29(2a), s 5(5) definition of chosen gender.  EOA (WA) Part IIAA, s 4(1) definition of gender reassigned person, s 35AA definition of gender history.  ADA (NSW) Part 3A, s 38A definition of transgender, s 4(1) definition of recognised transgender person. On the additional provisions, see in particular s 38B(1)(c).  ADA (NT) s 4(1) definition of sexuality; ADA (Tas) s 3 definitions of sexual orientation, transsexuality and transsexual.  Note that the ADA (NSW) test is narrower in that it does not apply to people who assume characteristics of their preferred gender: s 38A.  Employment Non-Discrimination Act of 2009 (S. 1584) s 3(6).  See eg, District of Columbia Human Rights Act of 1977 s 2-1401.02(12A) (where gender identity or expression means a gender-related identity, appearance, expression, or behavior of an individual, regardless of the individuals assigned sex at birth); Vermont Statutes Annotated title 1, chap 3, s 144 (where the term gender identity means an individuals actual or perceived gender identity, or gender-related characteristics intrinsically related to an individuals gender or gender-identity, regardless of the individuals assigned sex at birth).  Anna Chapman, Protection from discrimination on the basis of sexual orientation or sex and/or gender identity in Australia, University of Melbourne, 2010, p 8.  Ibid.  Ibid.  ADA (NSW) s 38A; EOA (Vic) s 4(1) definition of gender identity; ADA (Qld) Schedule dictionary definition of gender identity; EOA (SA) s 5(5); DA (ACT) Dictionary definition of gender identity. Western Australia, the Northern Territory and Tasmania may cover intersex conditions under their disability/impairment provisions.  Gina Wilson, Intersex in Australia On Terminology, HYPERLINK "http://oiiaustralia.com/about/terminology/"http://oiiaustralia.com/about/terminology/.  See the definition of de facto partner in the dictionary. This refers to the definition contained in section 22A of the Acts Interpretation Act 1901 (Cth).  Recommendation 4 of Senate Legal and Constitutional Affairs Committee, Report into the Effectiveness of the Commonwealth Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality Canberra: Parliament of Australia 2009.  Based on ss 5(1), 6(1) and 7(1) of the Sex Discrimination Act 1984 (Cth).  Waters v Public Transport Corporation (1991) 173 CLR 349, 359 (McHugh CJ and Gaudron J, McHugh J agreeing, 382), applied in relation to the Sex Discrimination Act 1984 (Cth) in HREOC v Mount Isa Mins Ltd (1993) 46 FCR 301, 325 (Lockhart J). See further HREOC, Federal Discrimination Law (2008), 52-3, 104-6, 173-7. Indeed, the courts have accepted that a respondent may breach antidiscrimination legislation even when acting with a benevolent intent, see further Pelma Rajapakse, An Analysis of the Methods of Proof in Direct Discrimination Cases in Australia (1999) 90 University of Queensland Law Journal 90, 94.  Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92, 163 [236] (Gummow, Hayne and Heydon JJ).  Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92, 102 [13] (Gleeson CJ), 143-4 [166] (McHugh and Kirby JJ), 163 [236] (Gummow, Hayne and Heydon JJ); Forbesv Australian Federal Police (Commonwealth) [2004] FCAFC 95, [68]-[70], [76].  Ibid 63.  Ibid 63.  Anti-Discrimination Act 1997 (NSW), s 49ZO(3); Equal Opportunity Act 1995 (Vic), s 38(a); Discrimination Act 1991 (ACT), s 27, s 46; Anti-Discrimination Act (NT), s 37A, s 30(2).  Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 3(1)(d) of the definition of discrimination; Equal Opportunity Act 1995 (Vic) s 75 and s 76; Anti-Discrimination Act 1977 (NSW) s 56; Anti-Discrimination Act 1991 (Qld) s 29, s 109; Equal Opportunity Act 1984 (SA) s 50; Discrimination Act 1991 (ACT) s 32; Anti-Discrimination Act 1992 (NT) s 51. Note that the wording and scope of these provisions varies considerably from statute to statute; many of the provisions do not apply to all the grounds listed in the relevant statute.  Equal Opportunity Act 1995 (Vic), s 77.  Anti-Discrimination Act 1991 (Qld), s 28(1). NB, this provision relates to gender identity rather than sexual orientation.  Equal Opportunity Act 1995 (Vic), s 21(1); Anti-Discrimination Act (NT), s 35(2)  Anti-Discrimination Act 1977 (NSW), s 49ZH(3)(a)  Anti-Discrimination Act 1977 (NSW), s 49ZQ(3)(a) and (b)  HRC, General Comment 18 (Non-discrimination), [13]. This reflects the approach taken under the jurisprudence of the Committee. See, eg, Broeks v. The Netherlands (172/1984), ICCPR, A/42/40 (9 April 1987) 139, [13]. See further, Sarah Joseph et al, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004), 680-9  Ibid [69].  With the exclusion of types of organisations discussed under Special Measures.  Senate Inquiry into Sexuality Discrimination, Recommendations, and Clause 27, Sexuality Discrimination Bill 1995 (Cth).  Clause 31, Sexuality Discrimination Bill 1995 (Cth).  Equal Opportunity Act 1995 (Vic), s61.  Lesbian & Gay Legal Rights Service, Commonwealth Legislation to Prohibit Discrimination Against Lesbians, Gay Men and Transgender Persons A Discussion Paper, July 1995.  See, eg, Hickie v Hunt & Hunt [1998] HREOCA 8 (extract at (1998) EOC 92-910; Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122; Mayer v Australian Nuclear Science and TechnologyOrganisation [2003] FMCA 209.  Disability Discrimination Act 1992 (Cth), s 32.  Sex Discrimination Act 1984, s 3.  A contravention of the Transport Standards amounts to unlawful discrimination under the DisabilityDiscrimination Act 1992 (Cth), s 32.  Public Interest Law Clearing House, Submission to the Department of Justice regarding the Review of the Equal Opportunity Act 1995 (Vic) (January 2008) 34 [8.4.3].  Fernando Henrique Cardoso, Transmittal letter dated 7 June 2004 from the Chair of the Panel of Eminent Persons on United NationsCivil Society Relations addressed to the Secretary-General, UN GAOR 58th Session, 3, UN Doc A/58/81 (2004). See also Kofi A Annan, Report of the Secretary- General in response to the report of the Panel of Eminent Persons on United Nations-Civil Society Relations, UN Doc A/59/354 (2004); B K Woodward, 'Global Civil Society and International Law in Global Governance: Some Contemporary Issues' (2006) 8 International Community Law Review 247, 296-7; Lesley C Hodgson, 'Helping the Salmon: The Role of Civil Society in the Development of Human Rights' (2005) 5 Journal of the Institute of Justice and International Studies 11, 13.  Australian Law Reform Commission, Beyond The Door-Keeper: Standing to sue for public remedies, Report No 87 (1996), see especially Recommendation 2: Any person should be able to commence and maintain public law proceedings unless: the relevant legislation clearly indicates an intention that the decision or conduct sought to be litigated should not be the subject of challenge by a person such as the applicant; or in all the circumstances it would not be in the public interest to proceed because to do so would unreasonably interfere with the ability of a person having a private interest in the matter to deal with it differently or not at all. See also Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985).  Section 42(3) explicitly extends the definition of person aggrieved in relation to particular decisions by the Classification Board at the more serious end of the classification spectrum. The extension is also stated to not limit the generality of s 42(1)(d), leaving open the possibility of such persons and organisations seeking standing in other less serious classification decisions as well.  Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 42(3)(a).  Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 42(3)(b).  Currently available in NSW, Victoria, Tasmania and the ACT.  Marriage Act 1961 (Cth) s5(1).  X v. Colombia, UNHRC, 2007, Unreported.  See also Toonen v Australia, Communication No. 488/92, 31 March 1994 and Young v Australia, Communication 941/2000, 6 August 2003.     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