ࡱ> _ )bjbj ;.bbuv'x+\------8 ./--vp0<5R5999ba?@uuuuuuu$x{`u-A99AAu--99uDDDA(-9-9uDAuDDVKL9Tƈ5AP|L uu0-vL0{-D"{LLh{- Nx'AADAAAAAuuOD^AAA-vAAAA{AAAAAAAAA &:  INCLUDEPICTURE \d "C:\\Users\\chuco\\AppData\\Local\\users\\schka\\General Share\\Logos\\JPEG Logos\\LCA\\LCA Colour.jpg" \* MERGEFORMATINET  Consultation on the protection from discrimination on the basis of sexual orientation and sex and/or gender identity 鱨վ Dated 29 November 2010 Table of Contents  TOC \o "1-3" \h \z \u  HYPERLINK \l "_Toc278538536" Acknowledgement  PAGEREF _Toc278538536 \h 3  HYPERLINK \l "_Toc278538537" Executive Summary  PAGEREF _Toc278538537 \h 3  HYPERLINK \l "_Toc278538538" Introduction  PAGEREF _Toc278538538 \h 3  HYPERLINK \l "_Toc278538539" Terminology  PAGEREF _Toc278538539 \h 3  HYPERLINK \l "_Toc278538540" Background  PAGEREF _Toc278538540 \h 3  HYPERLINK \l "_Toc278538541" International Human Rights Context  PAGEREF _Toc278538541 \h 3  HYPERLINK \l "_Toc278538542" International Covenant on Civil and Political Rights (ICCPR)  PAGEREF _Toc278538542 \h 3  HYPERLINK \l "_Toc278538543" Other International Instruments  PAGEREF _Toc278538543 \h 3  HYPERLINK \l "_Toc278538544" Proposed UN Declaration on Sexual Orientation and Gender Identity  PAGEREF _Toc278538544 \h 3  HYPERLINK \l "_Toc278538545" Yogyakarta Principles  PAGEREF _Toc278538545 \h 3  HYPERLINK \l "_Toc278538546" Domestic Context  PAGEREF _Toc278538546 \h 3  HYPERLINK \l "_Toc278538547" Progress towards federal legislation  PAGEREF _Toc278538547 \h 3  HYPERLINK \l "_Toc278538548" Human Rights Framework and Anti-Discrimination Legislation Consolidation  PAGEREF _Toc278538548 \h 3  HYPERLINK \l "_Toc278538549" Constitutional issues  PAGEREF _Toc278538549 \h 3  HYPERLINK \l "_Toc278538550" Commission Discussion Paper Questions:  PAGEREF _Toc278538550 \h 3  HYPERLINK \l "_Toc278538551" Benefits of Prohibiting Discrimination on the Basis of Sexual Orientation and Sex and/or gender Identity  PAGEREF _Toc278538551 \h 3  HYPERLINK \l "_Toc278538552" Existing Federal Coverage  PAGEREF _Toc278538552 \h 3  HYPERLINK \l "_Toc278538553" State and Territory Coverage  PAGEREF _Toc278538553 \h 3  HYPERLINK \l "_Toc278538554" Application of State and Territory Legislation to the Commonwealth  PAGEREF _Toc278538554 \h 3  HYPERLINK \l "_Toc278538555" Ability of federal legislation to cover the field  PAGEREF _Toc278538555 \h 3  HYPERLINK \l "_Toc278538556" Benefits of Prohibiting Vilification and Harassment on the Basis of Sexual Orientation and Sex and/or gender Identity  PAGEREF _Toc278538556 \h 3  HYPERLINK \l "_Toc278538557" Vilification  PAGEREF _Toc278538557 \h 3  HYPERLINK \l "_Toc278538558" Harassment  PAGEREF _Toc278538558 \h 3  HYPERLINK \l "_Toc278538559" Terminology and scope of legislation  PAGEREF _Toc278538559 \h 3  HYPERLINK \l "_Toc278538560" Special measures  PAGEREF _Toc278538560 \h 3  HYPERLINK \l "_Toc278538561" Complementary actions by the Australian Government  PAGEREF _Toc278538561 \h 3  HYPERLINK \l "_Toc278538562" General measures supporting the introduction of federal anti-discrimination laws  PAGEREF _Toc278538562 \h 3  HYPERLINK \l "_Toc278538563" Flow on Changes  PAGEREF _Toc278538563 \h 3  HYPERLINK \l "_Toc278538564" Consolidation of anti-discrimination legislation  PAGEREF _Toc278538564 \h 3  HYPERLINK \l "_Toc278538565" Same-Sex Marriage  PAGEREF _Toc278538565 \h 3  HYPERLINK \l "_Toc278538566" Legal Recognition of Sex in Documents and Government Records  PAGEREF _Toc278538566 \h 3  HYPERLINK \l "_Toc278538567" Conclusion  PAGEREF _Toc278538567 \h 3  HYPERLINK \l "_Toc278538568" Attachment: Profile of the Law Council of Australia  PAGEREF _Toc278538568 \h 3  Acknowledgement The Law Council would like to acknowledge the assistance of the Law Institute of Victoria, Queensland Law Society, Law Society of Western Australia, Law Society of South Australia, New South Wales Bar Association and Victorian Women Lawyers in preparing this submission. Executive Summary Research shows that Australians who are lesbian, gay, bisexual, transgender or intersex (LGBTI) face widespread levels of discrimination and abuse due to their sexual orientation or sex and/or gender identity. This has direct and devastating consequences, including high rates of depression and a greater risk of suicide. To help address this situation, federal laws prohibiting discrimination, harassment and vilification on the basis of sexual orientation and sex and/or gender identity are needed. The current absence of comprehensive federal anti-discrimination laws on the grounds of sexual orientation constitutes a failure by the Australian Government to meet its international human rights obligations. It is also likely that the absence of such laws on the grounds of sex and/or gender identity constitutes a similar failure. The case for introduction of legislation is particularly compelling given Australias endorsement of the proposed Declaration on Sexual Orientation and Gender Identity which was put to the UN General Assembly in 2008. Enacting federal domestic legislation will help Australia to demonstrate international leadership in addressing global violations of human rights which are based on these attributes. Current federal legislative protections against discrimination on the basis of sexual orientation are patchy and lack enforceability. In the case of sex and/or gender identity, they are close to non-existent. While all States and Territories have enacted legislation to some extent on these issues, it is inconsistently worded and in some cases excludes key groups of people. There are also doubts about the extent to which the Commonwealth is bound by State and Territory laws. As well as providing redress in these situations, a federal best practice model would also assist greatly in the harmonisation process of State and Territory anti-discrimination legislation which is currently underway. Because of the high levels of homophobia, verbal abuse, property damage and hate motivated assault experienced by Australians who are LGBTI, the Law Council of Australia also supports the introduction of federal anti-vilification and harassment laws. These laws have an important educative role in signalling to the entire community that such conduct is unacceptable. Careful consultations with LGBTI communities will be important in ensuring that the terminology and scope of federal laws are appropriate and not exclusionary. Such consultations will also help to ensure that special measures provisions are effective in their aim of achieving substantive equality for Australians who are LGBTI. A number of Australian Government actions are needed to complement the introduction of these laws. They include measures to increase compliance by the Australian Public Service, audits and flow-on changes to other legislation and increasing the effectiveness of anti-discrimination legislation overall. In addition, outstanding issues of particular significance include same-sex marriage and the legal recognition of sex in documents and Government records. The Law Council welcomes the Australian Governments recent confirmation that it will introduce legislation to protect against discrimination on the basis of sexual orientation and sex and/or gender identity, as part of its review and consolidation of federal anti-discrimination laws. In this context, the 鱨վs current consultation with stakeholders on such issues is particularly timely and valuable. Introduction The Law Council of Australia is pleased to provide the following submission in response to the 鱨վs (the Commissions) consultation on discrimination on the basis of sexual orientation and sex and/or gender identity. The Law Council is the peak representative body for the Australian legal profession as outlined in the Attachment to this submission. The Commissions consultation canvasses community views on the possible inclusion of protections on the basis of sexual orientation and sex and/or gender identity in federal anti-discrimination law. The Australian Government has recently affirmed its commitment to introducing legislation to protect against these forms of discrimination as part of its review and consolidation of federal anti-discrimination laws. As part of its consultation, the Commission is seeking community views on issues including: the benefits of prohibiting discrimination, vilification and/or harassment on the basis of sexual orientation and sex and/or gender identity; examples of situations where federal protections are needed due to inadequate protection under State and Territory laws; the terminology which should be used to protect against discrimination on the basis of sexual orientation, sex and/or gender identity under any federal laws, including for people who identify as intersex; what special measures designed to benefit specific groups based on sexual orientation and sex and/or gender identity should be allowed; and any other actions which should be taken by the Australian Government to better protect and promote the rights of LGBTI people in Australia. In this submission, the Law Council has provided an overview of the case for, and benefits of, introducing anti-discrimination legislation on the basis of sexual orientation and sex and/or gender identity. This includes a discussion of Australias position under international law and the inadequacy of current domestic protections at the federal level. However, in this submission, the Law Council has not addressed in exhaustive detail the terminology which should be used in enacting federal laws of this kind. It anticipates that other groups and individuals are likely to go into depth on this issue at this stage, given their particular experience and understanding of the area. In addition, the Law Council has canvassed only briefly the proposed grounds, areas of discrimination, exemptions, special measures and remedies which would be covered by federal legislation at this stage. However, it looks forward to further opportunities to discuss these issues as a Bill is drafted. Terminology The Law Council acknowledges the significance of the use of terminology, and its contestability, in describing individuals and groups of people. However, throughout this paper the Law Council has generally adopted the terms used by the Commission in its Protection from Discrimination on the Basis of Sexual Orientation and Sex and/or Gender Identity: Discussion Paper (the Discussion Paper). These terms include: sexual orientation; sex and/or gender identity; trans and transgender; people who identify as being intersex; and LGBTI as an abbreviation to describe people as lesbian, gay, bisexual, trans or intersex. In some cases, the Law Council has adopted slightly different terminology, for example, when quoting the actual language used in legislation, cases or commentary. Background While Australia has made advances in terms of treating LGBTI communities with greater fairness and respect, research shows that homophobia and transphobia is still widespread. This includes personal insults, verbal abuse, threats of violence or intimidation, physical violence, and harassing behaviour as well as less favourable treatment in work, education and other spheres. Such discriminatory conduct has been significantly associated with higher rates of anxiety and depression amongst LGBTI communities, as well as a greater risk of suicide and self-harm. Meanwhile, worldwide, people are subject to persistent human rights violations because of their actual or perceived sexual orientation and sex and/or gender identity. For example, several countries maintain the death penalty for consensual same sex practices and people have been killed or sentenced to death on this basis. Transgender people are particularly likely to be targeted for violence and have been described as amongst the most vulnerable and marginalised people in society. International cases of discrimination against LGBTI people in accessing economic, social and cultural rights have also been widely documented. The Law Council considers that federal laws are needed to address discrimination against Australians in LGBTI communities. In enacting these laws, Australia has a broader leadership role in addressing human rights violations against people in LGBTI communities globally. The Law Council has a history of advocating the elimination of all forms of discrimination and the promotion of equality in Australia. This is consistent with its work to maintain and promote the fundamental principles which uphold the Rule of Law. These principles include that: the law should be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds; and everyone is entitled to equal protection before the law and no one should be conferred with special privileges. For example, in its 2009 Submission to the National Consultation on Human Rights, the Law Council emphasised Australias obligation to protect and promote all human rights contained in international treaties to which it is a party, including the rights to: non-discrimination, equality before the law and the equal protection of the law (Article 26 of the International Covenant on Civil and Political Rights (ICCPR)); and marry and start a family, including equality of rights and responsibilities of spouses during marriage and its dissolution (Article 23 of the ICCPR). In this submission, the Law Council noted the failure of the existing federal legal framework to guarantee adequate protection for fundamental human rights. In particular, it emphasised that current Commonwealth anti-discrimination laws do not provide adequate protection against discrimination on the grounds of sexual preference. More specifically, the Law Council has advocated removing discrimination against same sex couples, particularly through removing legal restrictions on same sex marriage, by: writing to the Attorney-General and making a submission to the Commission in 2006 supporting policy changes on these issues; seeking major parties positions on same sex marriages in the lead-up to the 2007 election; highlighting the discrimination experienced by same sex couples in its Shadow Report to Australias Common Core Document for the United Nations Human Rights Committee in 2008; providing submissions and evidence to the Senate Legal and Constitutional Affairs Committee (the Senate Committee) on draft Bills to remove discrimination against same sex couples in over 80 Commonwealth laws. The Law Council welcomed the passage of these Bills on 24November 2008; and lodging a submission to the Senate Committee on the Marriage Equality Amendment Bill 2009, introduced by the Greens, which sought to permit marriage equality for people regardless of sex, sexuality and gender identity. This Bill was rejected by the Senate on 25 February 2010. On 29 September 2010, the Greens introduced a new Marriage Equality Amendment Bill 2010, which is substantially similar to its 2009 Bill. The Law Council will provide its continued support for this Bill as a means to eliminate discrimination for same sex couples. In this context, the Law Council welcomes: the Australian Governments recent confirmation that it will introduce legislation to protect against these forms of discrimination as part of its review and consolidation of federal anti-discrimination laws; and the Commissions current consultation on introducing federal laws for the protection from discrimination on the basis of sexual orientation and sex and/or gender identity. This consultation will be essential in determining the application and scope of these laws. International Human Rights Context While there is no international treaty that specifically deals with the human rights of LGBTI people, a number of key international treaties support the recognition of these rights. Australia has agreed to be bound by these treaties, which are detailed below and to implement them domestically. International Covenant on Civil and Political Rights (ICCPR) The ICCPR enshrines the rights of all people to non-discrimination, equality before the law and the equal protection of the law: Article 2 sets out the principle of non-discrimination without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; and Article 26 sets out the principle of equality, including equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Other relevant rights set out in the ICCPR include the right to privacy (Article17) and the right to marry and found a family (Article 23). Article 2 of the ICCPR also places obligations on its signatories to: guarantee all rights within the ICCPR to all individuals, including by adopting such laws or other measures as may be necessary to give effect to the rights; and ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective, enforceable remedy. Although the ICCPR does not specifically refer to sexual orientation, the United Nations Human Rights Committee (Human Rights Committee) has found that its Articles extend to an obligation to prevent discrimination on the ground of sexual orientation: In Toonen v Australia,  the Human Rights Committee found that Tasmanian laws which criminalised consensual homosexual acts, even when they occurred in a private home, breached the right to privacy (Article 17(1)). It also noted that the reference to sex in Articles 2 and 26 were to be taken as including sexual orientation. In Young v Australia, the Human Rights Committee concluded that the distinction between the treatment of opposite-sex couples and same-sex couples in relation to veterans entitlements was discrimination in breach of article 26 of the ICCPR. The ICCPR also does not specifically refer to sex or gender identity. However, it is likely that its principles would also extend to sex or gender identity under its other status grounds. The Human Rights Committee has, for instance, placed an emphasis on the need to: protect transgender communities from violence, torture and harassment; and recognise the right of people who are transgender to a change of gender by permitting the issuance of new birth certificates. International law experts Michael OFlaherty and John Fisher consider it untenable that transsexuals would have a lesser entitlement than other nominated persons to protection under the ICCPR. They cite numerous instances in which the Human Rights Committee and other treaty bodies have insisted on the entitlement of people of diverse sexual orientations and gender identities to benefit from the protection of human rights of general application. Australia has been criticised in respect of its compliance with the ICCPR. In April 2009, the Human Rights Committee released its observations on Australias compliance with the ICCPR. The Human Rights Committee noted that it: ... remains concerned that the rights to equality and non-discrimination are not comprehensively protected in Australia in federal law. (Art.2, and 26) The Human Rights Committee also recommended that Australia: ... should adopt Federal legislation, covering all grounds and areas of discrimination to provide comprehensive protection to the rights to equality and non-discrimination. Other International Instruments The right to non-discrimination on the basis of sexual orientation has been recognised by United Nations (UN) committees responsible for the following conventions: the Convention on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; and the Convention on the Elimination of Discrimination Against Women. Australia has agreed to be bound by all of these Conventions. The Committee on Economic Social and Cultural Rights has also specifically stated that gender identity is recognised as a prohibited ground for discrimination. It is also likely that the protections in other treaties extend to the grounds of sex and/or gender identity as well as sexual orientation. For example, the Committee on the Rights of the Child has expressed concern that transsexual, as well as homosexual, young people do not have access to the appropriate information, support and necessary protection to enable them to live their sexual orientation. Another relevant instrument is the International Labour Organization Convention No111 (the Convention), which was ratified by Australia in 1973. The Convention prohibits employment-related discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction and social origin. Parties to the Convention are permitted to add grounds for their own domestic purposes. In 1989 Australia added several grounds for its own purposes, including the ground of sexual preference. Proposed UN Declaration on Sexual Orientation and Gender Identity On 18 December 2008, a proposed Declaration on Sexual Orientation and Gender Identity was put to the UN General Assembly, reaffirming human rights and equality for all people and condemning violence and violation of human rights based on sexual orientation and gender identity. This document was endorsed by Australia along with over 60 States. Yogyakarta Principles In 2007, a group of international human rights experts developed the Yogyakarta Principles, which consider the application of international human rights law in relation to sexual orientation and gender identity. While the Yogyakarta Principles are not in themselves binding, they are highly persuasive in interpreting existing international human rights obligations from this perspective. The Yogyakarta Principles reaffirm the rights of people to equality before the law and the equal protection of the law, without discrimination on the basis of sexual orientation or gender identity. They also set out actions that states should take to implement these rights. These include: embodying the principles of equality and non-discrimination on the basis of sexual orientation and gender identity into national constitutions or other appropriate legislation; and adopting appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity. Other Yogyakarta Principles which are particularly relevant in the consideration of areas in which people face discrimination and other detriments based on their sexual orientation and gender identity, include the rights to: the universal enjoyment of human rights; recognition as a person before the law based on each persons self-defined sexual orientation and gender identity; security of the person and protection by the State against violence or bodily harm; privacy, including the choice to disclose or not to disclose information relating to ones sexual orientation or gender identity; work, including protection against discrimination; social security and other social protection measures; an adequate standard of living; housing; education; health; freedom of opinion and expression including through speech, deportment, dress, bodily characteristics, etc; found a family; participate in public and cultural life; and effective remedies and redress. The Law Council considers that the Yogyakarta Principles provide a useful tool for assessing the kinds of Australian Government responses which are most needed to realise substantive equality for LGBTI Australians. Domestic Context Progress towards federal legislation There have been a number of public calls and commitments within Australia to address the lack of federal anti-discrimination laws on the basis of sexual orientation and sex and/or gender identity. Of particular interest is the detailed 1997 parliamentary inquiry by the Senate Committee into Democrat Senator Sid Spindlers Sexuality Discrimination Bill 1995 (Cth) (the Senate Sexuality Bill Inquiry). After developing draft legislation on these issues in opposition, the federal Labor Government came to office in 2007 promising to legislate to address discrimination and prejudice on the basis of gender identity and sexual orientation. More recently, the Senate Committee recommended in its 2008 Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) (the Senate SDA Inquiry) that the Commission examine the merits of incorporating additional grounds of discrimination, such as sexual orientation or gender identity, under Commonwealth law. The 2009 Report on the Consultation into Human Rights in Australia chaired by Father Frank Brennan AO (the Brennan Report) noted that this issue continued to attract significant public support. It stated that public submissions frequently called for national legislation to be enacted. In its Final National Report to the UN Human Rights Council conducting the Universal Periodic Review of Australia, the Government has recently affirmed its commitment to introducing legislation to protect against discrimination on the basis of a persons sexual orientation or gender status as part of its review and consolidation of federal anti-discrimination laws. The Law Council welcomes this affirmation as a fundamental step following the Governments earlier progress made through the 2008 passage of legislation to remove discrimination against same sex couples in over 100 areas of Commonwealth law. The Law Council equally welcomes the Opposition Leaders 2010 statement providing his in-principle support for federal anti-discrimination legislation which covers sexuality and gender diversity. Human Rights Framework and Anti-Discrimination Legislation Consolidation The Australian Governments new Human Rights Framework (the Framework) was announced in April 2010 as part of the Governments response to the 2009 National Human Rights Consultations. Its key principles include reaffirming a commitment to Australias human rights obligations, and improving the human rights protections available in the community through positive and practical action. Addressing the gap in federal anti-discrimination law on the basis of sexual orientation and gender/sex identity is an obvious element of implementing the Framework. The Government has also announced its intention to streamline federal anti-discrimination law into one single comprehensive law. This work will provide a basis for the development of harmonised State and Territory anti-discrimination laws which is currently being progressed through the Standing Committee of Attorneys-General (SCAG). These efforts provide additional impetus for action on sexual orientation and gender/sex identity issues. Unless this issue is addressed federally, the harmonisation of laws will be incomplete, given that all State and Territory laws cover these issues to some extent. Unless federal legislation is achieved, the major objectives of the streamlining of anti-discrimination law to provide clarity of individuals rights and overcome bureaucracy and red tape for business will remain unaddressed. Constitutional issues While reiterating its strong support for the introduction of federal anti-discrimination laws on the grounds of sexual orientation and sex and/or gender identity, the Law Council considers that it may be prudent for the Commission to seek specific advice regarding the available powers under the Australian Constitution (the Constitution) to support the enactment of these laws and their anticipated scope. This advice is particularly important if Australia is to rely extensively on the external affairs power set out in section 51 ((xxix) of the Constitution in implementing these laws. In the time available for the current consultation, the Law Council has not had an opportunity to consider this issue comprehensively. However, it notes that the issue of available constitutional powers attracted some debate when considered by the Senate Sexuality Bill Inquiry. For example, different views were submitted by the federal Attorney-Generals Department, legal experts and the Commission on the possible scope of any anti-discrimination laws. The Law Council considers that the Australian Government is obliged to introduce legislation incorporating the broadest scope of coverage possible under its Constitutional Powers. This is particularly the case given that the Australian Government has made its views on these issues clear on the international stage, for example by endorsing the 2008 Declaration on Sexual Orientation and Gender Identity put before the UN General Assembly. Commission Discussion Paper Questions: Benefits of Prohibiting Discrimination on the Basis of Sexual Orientation and Sex and/or gender Identity Existing Federal Coverage There is no federal law which comprehensively prohibits discrimination, harassment and vilification on the grounds of sexual orientation and sex and/or gender identity. The current level of federal coverage is patchy and lacks enforceability. In the case of discrimination due to sex and/or gender identity, it is close to non-existent. The relevant federal legislation is set out below: Human Rights and Equal Opportunity Commission Act 1984 (Cth): Under this Act, the Commission may investigate matters and conciliate complaints regarding discrimination on the basis of sexual preference only in the context of employment. These provisions do not cover gender/sex identity or related areas of discrimination. The Commission is limited to reporting its findings to the Attorney-General, who is not obliged to respond. There is no avenue to seek a tribunal or court hearing and the Commission cannot enforce its recommendations. SDA: The SDA prohibits discrimination on the basis of sex. The interpretation of this term does not extend to sexual orientation. The SDAs definitions of a man and a woman also do not appear to recognise a person who is intersex, and it is uncertain whether the SDA would cover discrimination on the basis of gender identity. The SDA protection for discrimination on the basis of marital status does not extend to same-sex relationships. The Senate Committee 2008 report recommended that this term be replaced with marital or relationship status which would include people in same-sex relationships. However, in its response, the Government merely noted this recommendation, stating that it required further consideration given that it may impact on the private sector and State and Territory laws relating to adoption, artificial conception and the recognition of sex. Disability Discrimination Act 1992 (Cth) (DDA): As the Commission has noted, the DDA can cover discrimination against people on the basis of their HIV or AIDS status. The Commission has also noted the DDA could be interpreted to have some coverage in relation to, for example, transsexualism.  However, the Law Council agrees with the Commissions view that forcing individuals to rely on DDA for this purpose, because they lack alternative mechanisms, is inappropriate. Fair Work Act 2009 (Cth) (the Fair Work Act): While the Fair Work Act incorporates a number of welcome innovations to address discrimination in the workplace (see discussion below), its coverage is only partial. The Act prevents employers taking adverse action against employees on the basis of attributes including sexual preference, and sex. Sex is undefined and, as for the SDA, the Fair Work Acts provisions may not extend to discrimination on the basis of sex or gender identity. State and Territory Coverage All States and Territories have now introduced legislation which goes some way towards protection against discrimination on the basis of sexual orientation. Some have also led the field with landmark features which address discrimination more generally. For example, the new Victorian regime has been welcomed for the introduction of a positive duty on employers to prevent discrimination and for enhanced Commission powers to investigate systemic discrimination (see discussion below). However, the coverage provided by State and Territory legislation regarding discrimination on the basis of sexual orientation is inconsistently worded and not comprehensive. For example: the New South Wales law refers to homosexuality only. This means that it does not cover heterosexuality and has only limited application to bisexuality (that is, covering only the homosexual aspects of a persons life); and some states refer to sexuality, while others refer to sexual orientation. Most States and Territories have enacted legislation which identifies sex and/or gender identity as a separate ground of discrimination. This lacks consistency and in some cases, the terminology used is inadequately narrow and excludes certain people. For example: the Western Australian Act is very narrow and only prohibits discrimination on the ground of gender history against a gender reassigned person. This limits the coverage to people who have obtained legal recognition of their preferred sex, which requires a reassignment (medical or surgical) procedure. This does not cover people who do not wish to, or are unable, to undergo this procedure; neither the NT Act nor the Tasmanian Act contains a separate gender identity ground. Both include transsexuality within their sexuality or sexual orientation ground. This may be considered inappropriate given that a persons sex or gender identity is a distinct matter from their sexuality; no State or Territory refers to intersex, although several refer to indeterminate sex. The exceptions are WA, the NT and Tasmania, which are silent on this ground. The position of people who are intersex in these jurisdictions is therefore uncertain. Queensland, Tasmania and Victoria also provide for lawful sexual activity as a ground of discrimination. The exemptions provided in State and Territory anti-discrimination legislation also vary widely, resulting in uneven protection and inconsistent outcomes between jurisdictions. For instance: the NSW Act includes an exemption for discrimination in employment by a small business (that does not exceed five employees), while this does not exist in, or is being phased out of, other State and Territory legislation; the Victorian Act includes a broad exemption which makes discrimination lawful where necessary for the respondent to comply with the ... [respondents] genuine religious beliefs or principles. In other States and Territories, religious exemptions tend to be more qualified and contained, for example, to service provision by religious institutions; and the Queensland Act has an exemption which applies in the context of employment, if the discrimination is reasonably necessary to protect physical, psychological, or emotional wellbeing in the care or instruction of children. This exemption seems particularly inappropriate given its underlying assumptions about people who are gender diverse. Some commentators have remarked that it is cruel and unreasonable and puts transgender and intersex people alongside sex workers and people convicted of child sex offences. Application of State and Territory Legislation to the Commonwealth An important limitation on State and Territory legislation is the extent to which it covers people who are either: employed by the Commonwealth; or dealing with the Commonwealth, for example, by receiving Commonwealth services or benefits. While the extent of any limitation depends on the framing of individual legislation within each jurisdiction, the recent case of Commonwealth v Anti-Discrimination Tribunal illustrates the potential failure of State and Territory legislation to apply in such circumstances: In this case, Mr Nichols, a Centrelink customer, made a complaint under the Tasmanian Act that Centrelink had discriminated against him on the basis of his disability. Mr Nichols had prostate cancer, but had been asked to wait in a queue with other customers at a Centrelink Service Centre. When asked, Centrelink officers failed to provide Mr Nichols with a seat as a more comfortable alternative. On 13 June 2008, the Full Court of the Federal Court of Australia declared that the correct interpretation of the Tasmanian Act was that there was no intention to bind the Commonwealth, and that the Commonwealth was not a 'person' to which the Tasmanian Act applies. Justice Kenny also held, obiter dictum, that the Tasmanian Anti-Discrimination Tribunal was not a court of the state and therefore, could not exercise Commonwealth judicial power under the Constitution. On this logic, the Tribunal could only exercise State judicial power and could not bind the Commonwealth. The Nichols case raises questions about the extent to which the Commonwealth is bound by State and Territory anti-discrimination legislation. In this regard, it is worth noting that in this instance, Mr Nichols had an alternative legislative mechanism the DDA - by which he could have brought an action against the Commonwealth. However, if his allegations of discrimination against Centrelink had been on the basis of his sexual orientation or sex and/or gender identity, instead of his disability, he would have had no enforceable legal recourse. This is of great concern when the extent of the Commonwealths public presence, and the myriad of ways in which it can affect peoples lives, are considered. For example: Centrelink serves 7.02 million customers annually and has 27,305 employees; Medicare pays in excess of $40 billion annually in benefits and has 5,705 employees; and the Australian Public Service employs 162,009 people. Bearing this in mind, it is possible to imagine a variety of everyday situations in which unfair discrimination occurs against individuals who are likely to have little legal recourse under existing federal legislation. These include: An employee in a Commonwealth department who is discouraged by the Senior Executive from applying for promotion due to his transgender status; a person who is subjected to sustained, intrusive and intimidating questioning by the Australian Federal Police about her lesbian background, despite its lack of relevance to the crime of which she is suspected (fraud); a Medicare customer who is publicly ridiculed by counter staff for his effeminate behaviour; and an Australian Public Service (APS) employee applicant for a national security clearance who is refused on the basis that her history of gender reassignment surgery could expose her to blackmail, despite referees attesting to her steady and reliable nature. The impact on individuals of such everyday incidents is damaging and ongoing. For example, The Gender Centre has documented incidents in government service provision where transgendered people have decided against claiming their welfare entitlements because they have experienced unfair or insensitive treatment from Centrelink in the past. Others are reluctant to attend health services or residential services such as refuges, even where it is essential to their health and wellbeing. This leaves people vulnerable to homelessness, poverty and violence. The Law Council considers that federal laws are needed to redress these kinds of situations. Formal prohibitions direct attention to LGBTI issues and set values and principles that reflect the basis on which all Australians should be treated. Laws and policies educate the wider population on acceptable standards of behaviour. Hopefully, formal federal prohibitions will also decrease the number of people who are LGBTI particularly youth who are currently over-represented in statistics of homelessness, depression, mental health disorders and suicide. Ability of federal legislation to cover the field The Law Council considers that it is, however, important to highlight to stakeholders that any new federal legislation will not automatically replace State and Territory legislation, and may not override any defects. This will depend on: the scope of powers available under the Australian Constitution. While the Commonwealth does have a number of heads of power which are relevant, the States and Territories may be able to legislate on a broader range of subject matter than the Commonwealth. There may also be restraints on any application to State bodies and State employees, although most federal anti-discrimination laws bind States and State instrumentalities; and the way in which the instrument is drafted. Federal legislation can have an impact on the validity of State or Territory legislation to the extent that the latter is inconsistent with the Commonwealth law. Under section 109 of the Constitution, the law of the Commonwealth prevails and the law of the State is inoperative to the extent of this inconsistency. A section 109 inconsistency can arise where there is a direct conflict between the State and Commonwealth law, or a textual collision between the laws. A section 109 inconsistency can also arise if the Commonwealth Parliament demonstrates an intention to make a law which will completely, exhaustively or exclusively govern the particular conduct or matter to which it is directed, and a State Parliament attempts to govern the same conduct or matter. This type of inconsistency is sometimes described as arising from the Commonwealths intention to cover the field. Generally, the Commonwealth approach is to state expressly that the federal legislation is not intended to cover the field: For example, this approach was taken in the context of the RDA following the decision in Viskauskas v Niland, in which the High Court considered the relationship between the Commonwealth Act and the Anti-Discrimination Act 1977 (NSW). In Viskauskas, the High Court found that there was an inconsistency apparent from the fact that both legislatures had enacted laws upon the same subject matter in a manner that displays an intention to cover the field. In an attempt to avoid or at least limit the extent of inconsistency disclosed by Viskauskas, the Commonwealth Government inserted section 6A into the RDA to make its legislative intentions clear. Section 6A provides that the RDA is not intended to exclude or limit the operation of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act. An express statement of this kind by Parliament has been found by the High Court to be a strong indication of whether or not the Commonwealth does in fact intend to cover the field. However, a federal law in this area would greatly assist the harmonisation process of State and Territory legislation being undertaken by SCAG. Providing a federal best practice model for the prohibition of discrimination based on sexual orientation and sex and/or gender identity could also facilitate a roll-on effect at State and Territory level. Benefits of Prohibiting Vilification and Harassment on the Basis of Sexual Orientation and Sex and/or gender Identity A range of social research has found that LGBTI Australians experience high levels of stigma, homophobia, verbal abuse, property damage and hate-motivated assault. This has direct and devastating results, including high levels of depression and suicide amongst LGBTI communities. The Law Council considers that federal anti-vilification and harassment laws should be introduced to prohibit this conduct specifically. It considers that such legislation has an important educative role in signalling to the community that such actions are unacceptable. It notes that this role was advocated by several witnesses at the Senate Sexuality Bill Inquiry of 1997 in response to arguments that the existing legislation prohibiting violence and assault provided sufficient redress. Vilification Vilification generally refers to communications made in public that incite hatred towards, serious contempt for, or severe ridicule of a person or group of people on the ground of their sexual orientation and sex and/or gender identity. This may include graffiti, comments made on radio or television, online material or public verbal abuse. New South Wales, Queensland, the Australian Capital Territory and Tasmania prohibit vilification on the grounds of sexual orientation and gender identity. Except for Tasmania, all of these jurisdictions make a distinction between vilification, which is a civil wrong, and serious vilification (for example, threatening physical harm to person or property), which is a criminal wrong. As with discrimination prohibitions, there are differences in coverage between the States and Territories which include provisions against vilification. For example: in relation to sexual orientation, NSW only covers homosexual vilification and it is therefore not unlawful to vilify people on the ground of their heterosexuality; Tasmania covers gender identity under sexual orientation. As discussed above, this may be considered inappropriate. Tasmania also covers lawful sexual activity. This could be broad enough, for example, to cover the vilification of promiscuous people or legal sex workers. At the federal level, vilification is most heavily emphasised in the RDA context. Under the RDA, vilification is a civil rather than a criminal wrong. The Law Council notes, however, that criminal sedition offences based on factors including race exist under the federal Criminal Code. It is a criminal offence under the DDA to incite the doing of an act that is unlawful (for example, discrimination). This is punishable by up to six months imprisonment. Generally, there is an attempt in existing anti-vilification laws to balance the right to live free from vilification with the right to communicate freely. This is done, for example, by placing an emphasis on public rather than private conduct, and providing exemptions where the conduct has been made in circumstances which were reasonable and in good faith. These may include: public acts done for academic, artistic, scientific or research purposes, or otherwise in the public interest; communications which are subject to a defence of absolute privilege in a defamation proceeding; and fair reports of vilification acts, for example, by journalists. The Law Council also notes the comments in the Discussion Paper that vilification has generally been difficult to prove in State and Territory jurisdictions, given the necessity to show that the respondents conduct was objectively capable of urging or arousing other people to feel hatred towards the complainant. It is insufficient to show that the respondents conduct merely conveyed his or her own hatred or serious contempt. It is important to ensure that any federal anti-vilification laws can be used effectively for the purpose for which they are introduced. In this regard, it may be useful to consider factors such as: whether the grounds of sexual orientation and vilification need be the sole reason for the public conduct under the RDA, for example, race needs to be only one of the reasons, and not necessarily the dominant reason, for the conduct; the applicable standard of objectivity this could, for example: emphasise that this should be viewed from the perspective of a reasonable member of the target group, rather than the general public; require regard to be given to the history of prejudice and discrimination against the target group; and providing the Commission with the power to instigate its own inquiries into acts of vilification, instead of relying on individuals to bring forward complaints (see further discussion below). Harassment While harassment most frequently refers to sexual harassment, harassment more generally may be conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of a protected attribute, in circumstances in which a reasonable person would have anticipated that this would occur. At the Commonwealth level, only the SDA and DDA specifically prohibit harassment. In State and Territory law, only the Northern Territory and Tasmanian Acts specifically prohibit harassment: the Northern Territory Act prohibits harassment on the grounds of sexuality; and the Tasmanian Act prohibits harassing behaviour on the ground of the persons relationship. In the other jurisdictions, a person may be able to demonstrate that conduct which involved harassment based on his or her sexual orientation or sex and/or gender identity amounted to unlawful discrimination, if he or she suffered some detriment in an area of activity governed by the legislation. In this respect, however, it is worth considering that in relation to sexual harassment, the accepted emphasis is on the behaviour itself as a wrong, and that the additional need to demonstrate some other disadvantage unnecessarily narrows the range of behaviour which should be proscribed. Given the level of prejudice, harassment and abuse experienced by LGBTI people, it is perhaps surprising that more jurisdictions have not introduced harassment provisions into their legislation. This may be because the vilification and/or discrimination provisions are intended to cover this field. However, as previously discussed, establishing vilification on the grounds of sexual orientation and sex and/or gender identity has been particularly difficult under existing State and Territory legislation. There are also differences in the way in which vilification and harassment apply. For example: vilification may be more difficult to establish, given that it generally refers to hatred, serious contempt or severe ridicule. By comparison, harassment generally refers to behaviour where a reasonable person, having regard to all the circumstances would have anticipated that the complainant would be offended, humiliated, intimidated, insulted or ridiculed; and vilification places an emphasis on public acts, whereas harassment can extend to behaviour which is more covert; and harassment is more likely to be directed at individuals rather than groups of people. For these reasons, the Law Council considers that it would be appropriate to introduce federal provisions prohibiting harassment on the grounds of sexual orientation and sex and/or gender identity, in addition to anti-vilification provisions. This was also the majority view taken in the Senate Sexuality Bill Inquiry of 1997. In a different context, the Law Council has previously advocated changes to increase the effectiveness of sexual harassment provisions of the SDA. It has proposed that harassment can be established where it occurs in circumstances where a reasonable person would have anticipated the possibility that the other person would have been offended, humiliated or intimidated by the conduct. This recommendation has been adopted by the Senate SDA Inquiry and the Australian Government. The Law Council supports a similar definition being adopted in any provisions which prohibit harassment on the basis of sexual orientation and sex and/or gender identity. It is also worth considering the introduction of a positive duty on employers in certain circumstances to take steps to prevent harassment see discussion below. Terminology and scope of legislation Noting that other groups are likely to go into depth on the kinds of terminology which should be used in laws prohibiting discrimination, vilification and harassment on the grounds of sexual orientation and sex and/or gender identity, the Law Council does not propose to do this at this stage. In particular, it considers that careful consultation with LGBTI communities will be important in ensuring that the terminology employed in federal legislation is appropriate and not exclusionary. Nor does the Law Council, at this stage, intend to address in exhaustive detail the proposed grounds, areas of discrimination, exemptions and remedies to be covered by federal legislation. It anticipates that there should be further opportunities to discuss this as a Bill is drafted. The Law Council considers that the Yogyakarta Principles offer useful guidance when considering the scope of federal legislation of this kind. This extends to guidance on the areas in which people are most likely to experience discrimination and other detriments (see the discussion of these Principles at page12 above). Throughout this submission the Law Council has pointed out areas in which inconsistency creates legal uncertainty within individual jurisdictions and/or excludes groups of people who should be entitled to protection. In this context the Law Council suggests that it is worth considering: specifically emphasising that federal legislation covers people who are transsexual, transgender, gay or homosexual, lesbian, bisexual, heterosexual and intersex; the coverage of people who have relationships with persons with protected attributes (including spouses, partners, relatives, colleagues and other associates); the coverage of characteristics, past or present, which are imputed or assumed (whether or not the person actually has that attribute); emphasising that individuals should not be required to disclose information about their sexual orientation or sex and/or gender identity, where it is irrelevant or unnecessary; and emphasising that where people make their views clear about their preferred sex or gender identity, a refusal to treat them as such constitutes discrimination and/or harassment. The Law Council considers that there may be value in adopting the terminology in relation to gender identity in the Bill for the Employment Non-Discrimination Act of 2009 currently before the United States Senate, and set out in the Discussion Paper: In the Bill, gender identity refers to 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. As the Discussion Paper states, this definition has advantages over existing narrower Australian State and Territory definitions that only protect people who identify as a member of the opposite or other sex. It also avoids fixed, permanent notions of gender identity. This moves away from definitions under which a person lives, or seeks to live, as a member of his or her preferred gender. A plurality of gender identities may exist. For example, many cross-dressers live and identify as one sex, but regularly take on the appearance of the opposite sex to satisfy a deep personal need. Their cross-dressing, however, could result in unfair discrimination. Another way to address this could be by incorporating the term gender expression, as proposed by the Australian Coalition for Equality. The Victorian Women Lawyers have emphasised that linking LGBTI discrimination to sex and/or gender identity also draws attention to the fact that much community discrimination is based on inflexible, binary gender stereotypes of how women and men ought to behave and interact. Not only does this discriminate against persons within LGBTI communities, it also fundamentally limits all members of society. Special measures The Law Council supports the view, which is generally accepted across anti-discrimination legislation that circumstances exist in which special measures provisions are appropriate to achieve substantive equality within the community. These provisions are designed to enable particular groups of people to overcome entrenched and historical disadvantage. They are a means by which policies and programs can be implemented to ensure equal enjoyment of human rights and fundamental freedoms. In this context, it notes that Article 2 of the ICCPR requires States to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. International law experts discussing the principle of equality set out in Article 26 of the ICCPR have also commented that: When certain groups of the population have traditionally been subjected to especially grievous detrimental treatment at the hands of State organs or other groups of the population, then mere statutory prohibitions of discrimination are often insufficient for guaranteeing true equality. In these cases, States must also resort to positive measures of protection against discrimination such as temporary privileges for traditionally disadvantaged groups. The Law Council considers that such provisions should be framed as a necessary part of a strategy for LGBTI Australians to achieve substantive equality within the broader community. They should not be viewed as an exception to the principle of non-discrimination, but integral to the meaning of the principle. Relevant examples which could constitute special measures include the provision of LGBTI-specific services, such as support groups, medical services, accommodation providers and legal services. Employment and hiring policies which specifically support LGBTI employees are also possible examples. It also notes that in the international racial discrimination law context, special measures must be designed and implemented on the basis of prior consultation with affected communities and the active participation of such communities. The Law Council considers that this principle should apply to the framing of special measures more generally. Complementary actions by the Australian Government The Discussion Paper asks whether there are any other actions which should be taken by the Australian Government to protect and promote the rights of LGBTI people more effectively in Australia. The Law Council considers that the Yogyakarta Principles, which outline actions that States should take to address discrimination based on sexual orientation and sex and/or gender identity, provide useful guidance in this context. More specifically, the Law Council proposes that the actions set out below should form a high priority for complementary Australian Government action. It notes that there are opportunities to incorporate such actions into the development of the new Australian Government Action Plan on Human Rights, and in some cases, the consolidation of federal anti-discrimination legislation. General measures supporting the introduction of federal anti-discrimination laws General measures to increase the new legislations effectiveness and improve compliance amongst the community against Australians who are LGBTI could include the establishment of a new 鱨վer for LGBTI issues. The Commissioners duties under the new laws would include increasing education and awareness of these issues amongst the broader community. A focus on how the APS can improve its own compliance as it develops and implements programs affecting LGBTI Australians is fundamentally important. This requires action to be taken at a number of levels, including specific, achievable targets. Measures to achieve this goal could include: introducing an Australian Government agency or unit with responsibility for LGBTI issues. This would best be placed in a central agency such as the Department of the Prime Minister and Cabinet; conducting APS training on LGBTI issues at all levels, both for program and policy staff; auditing the extent to which Commonwealth (and Commonwealth-funded) services provide fair treatment and access to Australians who are LGBTI; incorporating measurable, monitored targets on LGBTI issues, including as Key Performance Indicators in Senior Executive Staff performance agreements; and introducing support schemes for APS employees who are LGBTI. Several of these initiatives could be implemented as part of the broader APS human rights training and performance measures which the Law Council considers are vital if the Government is to meet its human rights commitments in response to the National Human Rights consultations. The Law Council notes that there are precedents within the APS for the kinds of comprehensive measures set out above, particularly as part of targeted efforts to address Indigenous disadvantage. Such strategies are particularly needed in relation to LGBTI communities, given that: service providers often worry that they lack the knowledge to deal sensitively and appropriately with LGBTI communities; and people within these communities have experienced difficulty in accessing fair and sensitive treatment from government service providers. Flow on Changes Flow-on changes to other legislation are necessary to support the introduction of these new anti-discrimination laws. Changes to the SDA are required to protect same sex couples from discrimination on the basis of their relationship status. To achieve this, the Senate SDA Inquiry has previously recommended that references in the SDA to marital status should be replaced with marital or relationship status. The Government has responded that it intends to consider this recommendation further, noting that there may be effects on State and Territory laws relating to adoption, artificial conception procedures and the recognition of changes of sex on cardinal documents. Changes are also needed to the Fair Work Act to clarify that: the protections against discrimination in employment extend to grounds of sex or gender identity, as well as sexual preference and sex; and the ground of marital status is amended in line with the SDA changes in the paragraph above. There may be additional instances in which changes to federal legislation are needed to support the new anti-discrimination laws. Existing legislation may operate to exclude inadvertently, or otherwise discriminate against, Australians who are LGBTI. It may also be inconsistent with State and Territory terminology: For example, the definition of de facto partner in the Acts Interpretation Act 1901 (Cth), refers to persons of the same sex, or a different sex. This may operate to exclude persons of indeterminate gender from being recognised as de facto partners. By way of contrast, the comparable Queensland legislation includes a broader definition. It states de facto partners will be recognised regardless of gender. In 2007, the Commission undertook a review of federal legislation which led to amendments to over 80 Commonwealth laws to remove discrimination against same sex couples. A similar audit should be considered in relation to sexual orientation and sex and/or gender identity-based discrimination, noting that the Australian Government has supported removing discriminatory legislation. The Commission will require adequate resources to undertake this work. Consolidation of anti-discrimination legislation The Australian Government has announced its intention to combine federal anti-discrimination laws into a single comprehensive Equality Act (the Equality Act). Therefore, legislation to address discrimination on the basis of sexual orientation and sex and/or gender identity will form part of the Equality Act. As part of this consolidation process, the Law Council supports the consideration of new mechanisms which will increase the Equality Acts effectiveness in eliminating discrimination and promoting equality. These include providing expanded powers to the Commission to address systemic discrimination and promote substantive equality. The Law Council has recently supported introducing such powers in a submission on the Sex and Age Discrimination Legislation Amendment Bill 2010, to: empower the Sex and Age Discrimination Commissioners to investigate systemic and/or pervasive discriminatory practices at their own initiative, without needing to rely on a formal individual complaint and without requiring the Commissions consent; and enable the Commissioners to report to the Attorney-General on any organisation that fails to implement the recommendations of the Commissioners following an investigation. Such changes would help bring federal laws into line with other legislative regimes which are directed at preventing and prohibiting discrimination through proactive compliance mechanisms. For example: under the Equal Opportunity Act 2010 (Vic) (the New Victorian Act), the Victorian Equal Opportunity and Human Rights Commission is empowered to: investigate serious systemic discrimination; engage directly with employers and other duty holders and require compliance or an enforceable undertaking to address discrimination; and conduct public inquiries into serious discrimination issues of public significance with the consent of the Attorney-General. The New Victorian Act also expresses a positive duty on employers in certain circumstances to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation. Under the Commonwealth Fair Work Act, the Fair Work Ombudsman is also empowered to enforce compliance with the provisions of the Act and investigate complaints of adverse action by an employer against an employee on a prohibited ground, without requiring an individual complaint. The Law Council considers that such powers would be particularly valuable tools in the current context, given that relatively few complaints are lodged under State and Territory anti-discrimination statutes on the grounds of sexual orientation and sex and/or gender identity. This is the case despite evidence of widespread discrimination on the basis of these attributes. The current legislation may place an undue onus on individuals who are already in vulnerable situations. As AnnaChapman writes, people may be reluctant to pursue a complaint under the legislation due to factors such as fear of coming out, fear that complaining will lead to retaliation and a lack of knowledge of the legal protections that are available. Same-Sex Marriage The Law Council welcomes all efforts to remove formal discrimination against same-sex couples and to ensure that such couples have access to the same benefits and entitlements as heterosexual couples. Federal laws prohibiting discrimination, vilification and harassment on the basis of sexual orientation and sex and/or gender identity would form an important step in this regard. However, the Law Council believes that without amendment to the Marriage Act 1961 (Cth) (the Marriage Act), at least one form of discrimination will remain. The Law Council believes that marriage is a civil right which should be made available to all people regardless of their sex. The Law Council welcomes the current Governments swift move to amend a range of laws which discriminate against same-sex couples but does not support its position that it will not amend the Marriage Act. Instead, the Government encourages the development of nationally consistent, state-based relationship recognition legislation. A relationships register is not an appropriate substitute for same-sex marriage. A relationships register still allows the State to preserve a privileged class of relationships not open to same-sex couples. As previously stated, the Law Council will provide its continued support for the Marriage Equality Amendment Bill 2010 (Cth) as a means to eliminate discrimination for same-sex couples. Legal Recognition of Sex in Documents and Government Records The Law Council notes that gaining legal recognition of sex in documents and government records is a key concern of many people who are sex and gender diverse. The Commissions Sex Files: the Legal Recognition of Sex in Documents and Government Records: Concluding Paper of the Sex and Gender Diversity Project report explores this issue in depth, and makes a number of recommendations for responses at both the Commonwealth and State and Territory Government levels. The Law Council supports consideration of this report by all levels of government. Conclusion The Law Council considers that federal legislation to address discrimination, vilification and harassment would allow LGBTI communities to engage in an equal society, free from fear of violence, exclusion or humiliation. Such prohibitions are particularly important in public settings where institutionalised discrimination is widespread, such as schools and workplaces. Introducing this federal legislation is also important in assisting Australia to meet its international human rights obligations and act as an international leader in the field. While legislation is not the only answer, it is an integral part of realising positive change. This point was well summarised by the Australian Council for Lesbian and Gay Rights (Western Australia) in its evidence before the 1997 Senate Sexuality Bill Inquiry, as follows: ... there are really two different issues in relation to this legislation. One is the fact that it provides legal remedy when you are discriminated against. But, in some ways more importantly, it sets a benchmark, it takes a stand and says, This discrimination is unacceptable... When the parliament takes a stand on behalf of the community and says, Look, this is wrong. We are providing a beacon, a sentinel of what is just, that is often more important than the actual practicality of the bill itself. The Law Council notes that evidence of Australian community support adds weight to the view that these changes are well overdue. For example, this was demonstrated in a 2009 Galaxy Poll conducted on behalf of the Australian Coalition for Equality. Of the 1,100 respondents surveyed, 85 per cent supported introducing federal laws protecting Australians from discrimination on the grounds of sexual orientation and gender identity. In comparison, just ten per cent of surveyed participants opposed such laws. The Law Council looks forward to further opportunities to discuss in more detail the drafting of new federal legislation prohibiting discrimination, vilification and harassment on the basis of sexual orientation or sex and/or gender identity. Attachment: Profile of the Law Council of Australia The Law Council of Australia is the peak national representative body of the Australian legal profession. The Law Council was established in 1933. It is the federal organisation representing approximately 50,000 Australian lawyers, through their representative bar associations and law societies (the constituent bodies of the Law Council). The constituent bodies of the Law Council are, in alphabetical order: Australian Capital Territory Bar Association Bar Association of Queensland Inc Law Institute of Victoria Law Society of New South Wales Law Society of South Australia Law Society of Tasmania Law Society of the Australian Capital Territory Law Society of the Northern Territory Law Society of Western Australia New South Wales Bar Association Northern Territory Bar Association Queensland Law Society South Australian Bar Association Tasmanian Bar Association The Victorian Bar Inc Western Australian Bar Association LLFG Limited (a corporation with large law firm members) The Law Council speaks for the Australian legal profession on the legal aspects of national and international issues, on federal law and on the operation of federal courts and tribunals. It works for the improvement of the law and of the administration of justice. The Law Council is the most inclusive, on both geographical and professional bases, of all Australian legal professional organisations.  鱨վ, Protection from Discrimination on the Basis of Sexual Orientation and Sex and/or Gender Identity: Discussion Paper, October 2010, available at  HYPERLINK "http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/discussion_paper.html" http://www.humanrights.gov.au/human_rights/lgbti/lgbticonsult/discussion_paper.html, accessed 22November2010  The Law Council notes that the term sexual orientation is generally held to be preferable compared with sexual preference, which implies choice: see for example, Australian Coalition for Equalitys (ACEs) Policy Paper regarding its proposed Equality (Gender Identity, Intersex and Sexual Orientation) Model Bill 2009; 15June 2009; circulated by ACE in relation to the current consultation, 28 October 2010, page 8  See summary of research outlining discrimination and abuse in Australia in 鱨վ, Sexual Orientation and Sex and/or Gender Identity, Research Paper October 2010 (the Research Paper), page 4, available at  HYPERLINK "http://www.hreoc.gov.au/human_rights/lgbti/lgbticonsult/research_paper.html" http://www.hreoc.gov.au/human_rights/lgbti/lgbticonsult/research_paper.html, accessed 12 November 2010  See summary of human rights abuses in Michael OFlaherty and John Fisher, Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles, Human Rights Law Review 8:2 (2008), pages 207-248  Law Council of Australia, A Charter: Protecting the Rights of All Australians: Submission to the National Consultation on Human Rights , 6 May 2009, pages 7-8 available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=576D5A42-1E4F-17FA-D260-F75AF0309582&siteName=lca  Ibid, page 56  Law Council of Australia, Same Sex Entitlements Discussion Paper 2006: Human Rights and Equal Opportunity Commission submission, available on request from the Law Council  Law Council of Australia, Federal Election 2007: Key Issues: Reponses, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=F4B05C9E-1E4F-17FA-D2F4-B951CCFA0B74&siteName=lca  Law Council of Australia, Shadow Report to Australias Common Core Document: United Nations Human Rights Committee 29 August 2008, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=8A45C5AA-1E4F-17FA-D281-B36C6D0B996B&siteName=lca  Law Council of Australia, Inquiry into Same-Sex Relationships (Equal Treatment in Commonwealth Laws General Law Reform) Bill 2008: Senate Legal and Constitutional Affairs Committee submission, 16 September 2008, available at  HYPERLINK "http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=F16CD535-1E4F-17FA-D27A-F44F71093EE5&siteName=lca" http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=F16CD535-1E4F-17FA-D27A-F44F71093EE5&siteName=lca; Law Council of Australia, Inquiry into Same-Sex Relationships (Equal Treatment in Commonwealth Laws Superannuation) Bill 2008: Senate Legal and Constitutional Affairs Committee submission, 29 July 2008, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=6A1C9B60-1C23-CACD-2278-4A789B7384D1&siteName=lca SameSex Relationships (Equal Treatment in Commonwealth LawsGeneral Law Reform) Act2008 (Cth); SameSex Relationships (Equal Treatment in Commonwealth LawsSuperannuation) Act2008 ((Cth)  Law Council of Australia, Inquiry into the Marriage Equality Amendment Bill 2009: Senate Legal and Constitutional Affairs Committee (28 August 2009), available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=37861B55-1E4F-17FA-D2E5-A683CE9B7103&siteName=lca  Australian Government, Universal Periodic Review Final National Report Australia, released 4November2010, available at  HYPERLINK "http://www.ag.gov.au/upr" http://www.ag.gov.au/upr, accessed 17 November 2010  International Covenant on Civil and Political Rights (New York, 19 December 1966; Aust TS 1980 No 23; 999 UNTS 171). The ICCPR is annexed to the 鱨վ Act 1986 (Cth) (Schedule 2)  Toonen v Australia, (488/92) UN Doc. CCPR/C/50/D/488/92  This reference has been criticised by commentators, who argue that sexual orientation is better classified under other status than as an aspect of ones gender: S Joseph, J Schultz and M Castan, The International Covenant on Civil and Political Rights; Cases, Commentary and Materials (2000), Oxford University Press, page 530.  Young v Australia, (941/2000) UN Doc. CCPR/C/78/D/941/2000  The Human Rights Committee made a similar decision in X v Colombia (1361/2005), CCPR/C/89/D/1361/2005(2007)  Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Russian Federation, 24 November 2009, CCPR/C/RUS/CO/6; Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Colombia, 4 August 2010, CCPR/C/CO/6  Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee, Ireland, 30 July 2008, CCPR/C/IRL/CO/3  OFlaherty and Fisher, above at n NOTEREF _Ref278450248 \h 4, pages 221-222. See also S Joseph, J Schultz and M Castan, The International Covenant on Civil and Political Rights; Cases, Commentary and Materials (2nd ed, 2004), which discusses Human Rights Committee decisions suggesting that a clearly definable group of people linked by their common status is likely to fall under the definition of other status (page 689).  Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding observations of the Human Rights Committee, Australia, CCPR/C/AUS/CO/5 (16March 3 April 2009)  Ibid at page 12.  Ibid.  Committee on Economic, Social and Cultural Rights, General Comment No 20 Non-Discrimination in Economic, Social and Cultural Rights, UN Doc E/C.12/GC/20 (2009)  Committee on the Rights of the Child, General Comment No 4: Adolescent health and development in the context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC.2003/4  Concluding Observations of the Committee on the Elimination of Discrimination Against Women regarding Kyrgyzstan, 5 February 1999, A/54/38  Above at n NOTEREF _Ref278450272 \h 25  Concluding Observations of the Committee on the Rights of the Child regarding the United Kingdom, 9October 2002, CRC/C/15/Add.188  http://www.ilo.org/ilolex/cgi-lex/convde.pl?C111   HYPERLINK "http://www.hreoc.gov.au/human_rights/ilo/index.html" http://www.hreoc.gov.au/human_rights/ilo/index.html  The proposed declaration was presented to the UN General Assembly on 18 December 2008. It was originally intended to be adopted as a resolution but prompted an opposing statement backed by other General Assembly members. Neither statement was adopted by the General Assembly: United Nations Department of Public Information, General Assembly Adopts 52 Resolutions, 6 Decisions Recommended by Third Committee on Wide Range of Human Rights, Social and Humanitarian Issues, (2008). Available at  HYPERLINK "http://www.un.org/News/Press/docs/2008/ga10801.doc.htm" http://www.un.org/News/Press/docs/2008/ga10801.doc.htm  http://www.yogyakartaprinciples.org/  Principle 2  Ibid.  Respectively, these are set out in Principles 1, 3, 5, 6, 12, 13, 14, 15, 16, 17, 19, 24, 25, 26 and 28  Senate Legal and Constitutional Affairs Committee, Inquiry into Sexuality Discrimination, available at  HYPERLINK "http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/1996-99/citizens/report/contents.htm" http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/1996-99/citizens/report/contents.htm, accessed 17 November 2010 An exposure draft of Labors Sexuality Discrimination Bill 2006 was released by then shadow Attorney-General Nicola Roxon MP.  Labor stated that it supported the enactment of legislation to amend provisions that unfairly discriminate against any person on the grounds of sexuality or gender identity: Australian Labor, National Platform and Constitution 2007, page 207 available at  HYPERLINK "http://www.nit.com.au/downloads/files/Download_161.pdf" http://www.nit.com.au/downloads/files/Download_161.pdf; accessed 17November 2010  Senate Legal and Constitutional Affairs Committee, Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality, 2008, Rec 43, available at http://aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm Father Frank Brennan AO (Chair), Mary Kostakidis, Tammy Williams and Mick Palmer AO APM, National Human Rights Consultation Report, September 2009, available at http://www.humanrightsconsultation.gov.au/  Above at n NOTEREF _Ref278450289 \h 13. This follows Labors 2009 statement that it supported the enactment of legislation prohibiting discrimination on the basis of a person's sexual orientation or gender status: Australian Labor National Platform and Constitution 2009, Chapter 7, page16, available at  HYPERLINK "http://www.alp.org.au/australian-labor/our-platform/" http://www.alp.org.au/australian-labor/our-platform/, accessed 18 November 2010 Reported Star Observer, 25 March 2010  HYPERLINK "http://www.starobserver.com.au/news/2010/03/25/abbott-supports-gay-anti-discrimination-legislation/23235" http://www.starobserver.com.au/news/2010/03/25/abbott-supports-gay-anti-discrimination-legislation/23235; see also Coalition response in Law Council of Australias Federal Election 2010 Key Issues: Responses, in which it recognised that amendments to Commonwealth legislation may be necessary in respect of discrimination on the basis of sexual orientation. available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=44C4FD11-F3B6-5F75-8D74-31DE489CAADD&siteName=lca  Attorney-General Hon Robert McClelland MP, Australias Human Rights Framework, media release, 21April 2010, available at  HYPERLINK "http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter_21April2010-AustraliasHumanRightsFramework?open&query=Australia%C2%92s%20Human%20Rights%20Framework%20media%20release" http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter_21April2010-AustraliasHumanRightsFramework?open&query=Australia%C2%92s%20Human%20Rights%20Framework%20media%20release; accessed 17 November 2010  Attorney-General Hon Robert McClelland MP and Minister for Finance and Deregulation Hon Lindsay Tanner MP, Reform of Anti-Discrimination Legislation Joint Media Release, 21 April 2010, available at  HYPERLINK "http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter_21April2010-ReformofAnti-DiscriminationLegislation?open&query=Reform%20of%20Anti-Discrimination%20Legislation%20%C2%96%20Joint%20Media%20Release" http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter_21April2010-ReformofAnti-DiscriminationLegislation?open&query=Reform%20of%20Anti-Discrimination%20Legislation%20%C2%96%20Joint%20Media%20Release, accessed 17 November 2010  A number of Constitutional heads of power are potentially available in this context.  See Chapter 3 generally, above at n NOTEREF _Ref278450312 \h 37  鱨վ Regulations 1989 (Cth) reg 4(a)(ix). These regulations have effect under the 鱨վ Act 1986 (Cth).  See Research Paper for a broader discussion of the limitations of the SDA, above at n NOTEREF _Ref278450327 \h 3, page 21.  The Research Paper states that this has not been tested legally Ibid.  Rec 4, above at n NOTEREF _Ref278450342 \h 40  Australian Government Response to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender Equality, available at  HYPERLINK "http://aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/gov_response.pdf" http://aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/gov_response.pdf, accessed 18 November 2010  Commission, Frequently asked questions: Who is protected by the DDA?, available at  HYPERLINK "http://www.hreoc.gov.au/disability_rights/faq/Who_is_protected_/who_is_protected_.html" \l "transsex" http://www.hreoc.gov.au/disability_rights/faq/Who_is_protected_/who_is_protected_.html#transsex, accessed 18 November 2010  See Commissions discussion under Does the DDA apply to discrimination based on transsexualism, Ibid.  Ibid. However, the view of AIS Support Australia, a support group for people affected by intersex conditions, is noted. According to the Research Paper, this group is in favour of conceptualising discrimination against people with intersex conditions as discrimination on the ground of disability/impairment: see page 23, above at n NOTEREF _Ref278450327 \h 3. s.351, Fair Work Act 2009 (Cth)  s. 4(1), Anti-Discrimination Act 1977 (NSW) (NSW Act)  s.7(n) Anti-Discrimination Act 1991 (Qld) (Qld Act); pt3 Equal Opportunity Act 1984 (SA) (SA Act); s.7(1)(b) Discrimination Act 1991 (ACT) (ACT Act); s.19(1)(c) Anti-Discrimination Act (NT) (NT Act)  s.26 Equal Opportunity Act 1995 (Vic) (Current Victorian Act); s.6(1) Equal Opportunity Act 2010 (Vic) (New Victorian Act, whose key provisions will come into effect on 1 August 2011; pt IIB Equal Opportunity Act 1984 (WA) (WA Act); s.16(c) Anti-Discrimination Act 1998 (Tas) (Tasmanian Act)  Part IIAA, s4(1) and s435AA WA Act  s3, Gender Reassignment Act 2000 (WA)  Neil Rees, Katherine Lindsay and Simon Rice, Australian Anti-Discrimination Law: Text, Cases and Materials (The Federation Press, 2008), page 382  Ibid.  s 38A, NSW Act; s.4(1) Current Victorian Act; Dictionary (gender identity), Qld Act; s.5(5) SA Act; s 2, ACT Act; Dictionary (gender identity), Western Australian Act.  The Discussion Paper notes that the Northern Territory and Tasmania may cover intersex conditions under their disability/impairment provisions, but that this is not clear. It also states that disability/impairment discrimination provisions may also be relevant more generally, as intersex conditions are seen as genetic conditions: above at n NOTEREF _Ref278450378 \h 1, footnotes 40-41, page 17  s.7(1) Qld Act; s.16(d) Tasmanian Act; s.6(d) Current Victorian Act  s.38C(3)(a), s.40(3)(b); s.49ZH(3)(b)  Exists in s. 21 (see also s.20) Current Victorian Act, but is not contained in New Victorian Act, whose key provisions commence 1 August 2011.  s.77, Current Victorian Act; retained in s. 84, New Victorian Act (key provisions commence 1 August 2011)  s. 28 Qld Act  R Mortensen, A Reconstruction of Religious Freedom and Equality: Gay, Lesbian and De Facto Rights and the Religious School in Queensland (2003) 3(2) Queensland University of Technology Law Journal 320, quoted in Rees, Lindsay and Rice, above at n NOTEREF _Ref278450391 \h 62, page 383  (2008) 169 FCR 85  See discussion in Gabrielle Appleby, Discrimination above the Law, Alt LJ (2008) Vol 33:4, 235; Brendan Gogarty and Benedict Bartl, Binding the Monolith Can state tribunals still hold the Commonwealth to account following Nichols' case? 260 Alt LJ Vol 34:1 2009; Geoffrey Kennett, Fault Lines in the Autochthonous Expedient: The problem of State tribunals (2009) 20 PLR 152; Casenote: State Anti-Discrimination Law and the Commonwealth (2009) 83 ALJ 8; Human Rights Commission, Federal Discrimination Law, p19, accessed at http://www.hreoc.gov.au/legal/FDL/index.html  Centrelink Annual Report 2009-2010, accessed at www.centrelink.gov.au  Medicare Annual Report 2009-2010, accessed at www.medicare.gov.au  APS Commission, State of the Service 2008-2009 Report, accessed at http://www.apsc.gov.au/stateoftheservice/index.html  The Gender Centre, Concerns for Clients When Accessing Government Agencies or Service Providers, available at http://www.gendercentre.org.au/concerns_for_clients_kit.htm HYPERLINK , accessed 12 November 2010  See discussion of Constitutional powers above.  See s.13(1) DDA; s.6 RDA; s.13 ADA, cf. s.12(1) SDA. The Australian Government noted in its Senate Standing Committee on Legal and Constitutional Affairs Effectiveness of the SDA in Eliminating Discrimination and Promoting Gender Equality: Government Response that the ADA, DDA and RDA all bind States and State instrumentalities, while the SDA does not bind the States and State instrumentalities unless expressly provided for. The Government recognised that the other Commonwealth anti-discrimination legislation has a wider coverage than the SDA and undertook to consider this recommendation as part of its consolidation project: Rec 11, page 7; above at n NOTEREF _Ref278450409 \h 52.  Butler v Attorney-General (Victoria) (1961) 106 CLR 268.  University of Wollongong v Metwally (1984) 158 CLR 447 at 455-6 per Gibbs CJ, at 483-4 per Dawson J.  Miller v Miller (1978) 141 CLR 269 at 275 per Barwick CJ.  Ex parte McLean (1930) 43 CLR 472 at 483 per Dixon J.  Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 at 489 per Isaacs J.  See SDA ss.10(3), 11(3), 11A(3); DDA s.13(3) (but see s.13(3A); s.12(3) ADA  (1983) 153 CLR 280.  See for example University of Wollongong v Metwally (1984) 158 CLR 447, 446 per Gibbs CJ; 460-1 per Mason J; 469 per Murphy J; 472 per Wilson J; 474 per Brennan J; 483 per Dawson J. Cf Greg McCarry, Landmines Among the Landmarks: Constitutional Aspects of Anti-Discrimination Laws (1989) 63 Australian Law Journal 327. Summarised in the Research Paper, above at n NOTEREF _Ref278450327 \h 3  Chapter 4, paragraph 4.4, above at n NOTEREF _Ref278450312 \h 37  This section assumes that the introduction of vilification provisions has a Constitutional basis of power. The Law Council notes that this issue caused some debate in the Senate Sexuality Bill Inquiry of 1997: Chapter 2 and Chapter 3, paragraph 3.18, Ibid.  As described in Discussion Paper, above at n NOTEREF _Ref278450378 \h 1, page 12  Pt3A Div 5 (transgender vilification) & Pt 4C Div 4 (homosexuality vilification) NSW Act; s.124A (grounds of sexuality and gender identity) Qld Act; pt 6 (sexuality vilification); ACT Act; s. 19 (public act inciting hatred on ground of sexual orientation) Tasmanian Act  ss.49ZTA and 38T of the NSW Act; ss.124A(1) and 131A(1) of the Qld Act; ss.66 and 67 of the ACT Act  Pt 4C, Div 4, NSW Act  s.19, Tasmanian Act  Ibid.  Part IIA, RDA  The Senate rejected an attempt to enact Commonwealth criminal racial vilifications in 1994 Rees, Lindsay and Rice, above at n NOTEREF _Ref278450391 \h 62, p 528.  These are currently contained in subsection 80.2(5) of the Criminal Code, which makes it an offence to urge a group or groups distinguished by race, religion, nationality or political opinion to use force or violence against another group or groups distinguished by the same factor, in circumstances where the use of force or violence would threaten the peace, order and good government of the Commonwealth. Schedule 1, Item 35 of the National Security Legislation Amendment Bill 2010 replaces this offence with four new offences, which include force or violence against either groups or individuals distinguished by race, religion, nationality, national or ethnic origin or political opinion, in circumstances including where the peace, order and good government of the Commonwealth is unthreatened. The Bill was passed by the House of Representatives on 20October2010 and the Senate on 15 November 2010, but had yet to receive Royal Assent on 22November2010. The Law Council has previously submitted that these new offences should not be co-located in the Criminal Code, but are best considered as part of federal anti-vilification laws. For more information, see Law Council of Australia, National Security Legislation Amendment Bill 2010 & Parliamentary Joint Law Committee on Law Enforcement Bill 2010: Senate Legal and Constitutional Affairs Committee Report 10 May 2010, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=93E49F25-1E4F-17FA-D2A8-A2E4BFB7D50B&siteName=lca  s 43, DDA. Victimisation provisions in the federal anti-discrimination legislation are also criminal offences for example, s.42 of the DDA.  See for example s.66 of the ACT Act  Above at n NOTEREF _Ref278450378 \h 1, page 12  Section 18B, RDA This is the approach suggested in the ACE Policy Paper, above at n NOTEREF _Ref278450489 \h 2, page 11  See, for example, s.17 of the Tasmanian Act  Pt2, Div3, SDA;  ss.35-40 DDA  s. 20(1)(b)NT Act  For example, in Daniels v Hunter Water Board (1994) EOC 92-626, a complaint of discrimination on the ground of homosexuality in employment was successful. The relevant conduct involved constant taunting and pranks by the complainants workmates based on his perceived homosexuality. This was found to be a detriment in his employment which could have been prevented by his employer.  This is the case in NSW for example. The Anti-Discrimination Board of NSW advises that harassing conduct on grounds other than sex would be considered under its broader discrimination provisions advice provided 12 November 2010. As well as the possibility of making out harassment or vilification in Victoria under the definition of discrimination pursuant to the current Victorian Act, the Victorian Women Lawyers also draw attention to the limited availability of civil injunctive relief under the Personal Safety Intervention Orders Act 2010 (Vic) (in limited circumstances and with limited remedies): advice provided 12November2010.  Rees, Lindsay and Rice, above at n NOTEREF _Ref278450391 \h 62, page 495  Although the vilification provisions can generally include vilification of individuals, as well as groups see above description.  Chapter 2, Rec 1, above at n NOTEREF _Ref278450312 \h 37  Rec 15 and Response, above at n NOTEREF _Ref278450409 \h 52  For example, the Gay and Lesbian Rights Lobby, and the Australian Council for Equality have both drafted papers addressing terminology issues.  See recommendations in 鱨վ, Sex Files: the Legal Recognition of Sex in Documents and Government Records: Concluding Paper of the Sex and Gender Diversity Project March 2009 Report, page 5, available at  HYPERLINK "http://www.hreoc.gov.au/genderdiversity/SFR_2009_Web.pdf" http://www.hreoc.gov.au/genderdiversity/SFR_2009_Web.pdf, accessed 12November 2010  This was raised as an example of unfavourable treatment by a number of witnesses appearing before the Senate Sexuality Bill Inquiry in 1997.  Set out in page 11 of the Discussion Paper, above at n NOTEREF _Ref278450378 \h 1  The Law Council notes, however, the advice of the Victorian Women Lawyers that the definition of gender identity has been problematic in Victorian legislation is it tends to imply that there are only two clear genders, and denies the plurality of identities that occur in reality: above at n110.  Page 7, Research Paper, above at n NOTEREF _Ref278450327 \h 3  In a similar vein, people can experience sexual orientation as a fluid concept for example, those who identify as LGBTI later in life.  Gender Identity Centre, Cross-Dressing Fact Sheet, accessed 8 November 2010 at  HYPERLINK "http://www.gendercentre.org.au/cross_dressing_information.htm" http://www.gendercentre.org.au/cross_dressing_information.htm; see also The Seahorse Society of NSW Q&A Factsheet at  HYPERLINK "http://www.seahorsesoc.org/faqs.html" http://www.seahorsesoc.org/faqs.html, accessed 8 November 2010  The Law Council notes, however, that this was a contentious issue in the 1997 Senate Sexuality Bill Inquiry. The Inquiry recommended that people who did not identify as and seek to live as a member of the opposite sex should not be covered by legislation. It considered that there was a need for certainty and validity of a change of status, and that gender identity was generally considered amongst respondents to be long term or well established. Concerns were also raised by the Attorney-Generals Department regarding the extent to which the ICCPR would cover transgender people with a less permanent gender identity. Senate Sexuality Bill Inquiry, Chapter 1, Rec 5 and Chapter 2 discussion, above at n NOTEREF _Ref278450312 \h 37.  Above at n NOTEREF _Ref278450489 \h 2, page 6  Above at n110  Rees, Lindsay and Rice, above at n NOTEREF _Ref278450391 \h 62, page 455  Article 2.2, ICCPR, above at n NOTEREF _Ref278450678 \h 14  Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (1993) N.P. Engel, Strasbourg, pp.459-460. As part of his discussion of Article 26, Nowak also states that the spectrum of State measures to protect against discrimination range from appropriate education in elementary school to criminal prohibitions of advocacy of racial hatred or religious discrimination. This lends support to the view that anti-vilification measures could be adopted to help meet Australias international obligations under the ICCPR.  Committee on the Elimination of Racial Discrimination, General Comment 32: The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination, page 5, available at http://www2.ohchr.org/english/bodies/cerd/comments.htm, accessed 20 November 2010  Attorney-General Hon Robert McClelland MP and Minister for Foreign Affairs Hon Stephen Smith MP, Reaffirming our Commitment to International Human Rights Obligations, Joint Media Release, 21 April 2010, available at  HYPERLINK "http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter_21April2010-ReaffirmingourCommitmenttoInternationalHumanRightsObligations" http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/MediaReleases_2010_SecondQuarter_21April2010-ReaffirmingourCommitmenttoInternationalHumanRightsObligations; accessed 20November2010  Law Council of Australia, Refining the Australian Public Service Values: Australian Public Service Commissioner, 2 August 2010, available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=5446C54C-F0EE-4611-12DC-261193C5E464&siteName=lca  For example, see the Department of Education, Employment and Workplace Relations Reconciliation Action Plan for 2009-2011, at  HYPERLINK "http://www.deewr.gov.au/Department/Documents/Publications/ReconciliationActionPlan_2009-2011.pdf" http://www.deewr.gov.au/Department/Documents/Publications/ReconciliationActionPlan_2009-2011.pdf, viewed 11 November 2010; also W Gray and WG Sanders, Views from the Top of the Quiet Revolution; Secretarial Perspectives on the New Arrangements in Indigenous Affairs: Discussion Paper No 282/2006; Centre for Aboriginal Economic Policy Research, Australian National University  The Gender Centre, Concerns for Service Providers When Assisting Transgender Clients Paper, available at accessed 12 November 2010  Above at n NOTEREF _Ref278450692 \h 77  Rec 4, page 4, above at n NOTEREF _Ref278450409 \h 52  See discussion above  s. 22A, Acts Interpretation Act 1901 (Cth)  s. 32DA(5) Acts Interpretation Act 1954 (Qld)  Commission, Same Sex: Same Entitlements Inquiry Report (2007), available at  HYPERLINK "http://www.hreoc.gov.au/human_rights/samesex/index.html" http://www.hreoc.gov.au/human_rights/samesex/index.html, accessed 18 November 2010  In 2009, Australian Labor supported the removal of discrimination on the basis of a persons sexual orientation or gender status from Commonwealth legislation: Australian Labor National Platform and Constitution 2009, Chapter 7, page16, available at  HYPERLINK "http://www.alp.org.au/australian-labor/our-platform/" http://www.alp.org.au/australian-labor/our-platform/, accessed 18 November 2010 Law Council of Australia, Sex and Age Discrimination Legislation Amendment Bill 2010: Submission to Senate Committee on Constitutional and Legal Affairs, pages 24-26; available at http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=532A7A5C-C91E-AA92-A102-02FEBC627269&siteName=lca  New Victorian Act, Part 9, Division 1 (key provisions commence 1 August 2011)  s15, New Victorian Act  Fair Work Act Part 5-2(in particular, s.682(1)(c)). The Fair Work Act also reverses the proof for discrimination claims, so that where an employee alleges that they have been the subject of prohibited adverse action by their employer, it is presumed that the action was taken for that reason or with that intent unless the employer proves otherwise: s.361.  Research paper page 5, above at n NOTEREF _Ref278450327 \h 3  Ibid.  鱨վ, Sex Files: the Legal Recognition of Sex in Documents and Government Records: Concluding Paper of the Sex and Gender Diversity Project March 2009 Report, page 5, available at  HYPERLINK "http://www.hreoc.gov.au/genderdiversity/SFR_2009_Web.pdf" http://www.hreoc.gov.au/genderdiversity/SFR_2009_Web.pdf, accessed 12 November 2010  Evidence, Australian Council for Lesbian and Gay Rights (WA), page 570, quoted at Chapter 2, paragraph2.112, above at n NOTEREF _Ref278450312 \h 37  Community Attitudes to Discrimination Legislation Report, prepared by Galaxy Research for the Australian Coalition for Equality, June 2009, available at  HYPERLINK "http://www.coalitionforequality.org.au/GalaxyPoll-AntiDiscrimination.pdf" http://www.coalitionforequality.org.au/GalaxyPoll-AntiDiscrimination.pdf; accessed 12 November 2010. Galaxy Research surveyed the attitudes of 1,100 respondents aged 16 years and older distributed throughout Australia. The data was weighted by age, gender and region and quotas based on these attributes were applied.      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