Chapter Three

Inquiry into Sexuality Discrimination

Chapter Three

SOURCES OF ANTI-DISCRIMINATION LEGISLATION

3.1 Beliefs about the content of anti-discrimination legislation and about the extent of human rights vary over time along with perceptions of different societies as to whether rights are available to all people in the community; whether they are available only to citizens; or whether some other factor, such as religion, gender, national origin or race is an adequate ground on which to base exclusion.

3.2 The various human rights statements issued by the United Nations should be seen in this context - as statements not so much of rights which in real terms are currently available to all but which, in due course, may be accessed by all humans.

International sources

3.3 The most important international statements of human rights are the International Convention on Civil and Political Rights (ICCPR) and, to a lesser extent, the International Convention on Economic Social and Cultural Rights (ICESCR).

3.4 These two treaties acknowledge the existence of a range of rights, applicable to 'all peoples' such as the right to life; freedom from torture or degrading punishment; freedom from slavery; the right to freedom from arbitrary interference with privacy; the right to work; to fair remuneration, just working conditions; the right to education. Neither specifically mentions a right to reasonable expression of sexual orientation or of gender identity; and neither specifically lists sexuality or transgender as a status. In short, neither explicitly acknowledges any sexual orientation other than heterosexual. Equally, neither treaty indicates that sexuality or transgender status is a recognised and common ground of exclusion from the rights available to 'all persons'. [1]

3.5 In Australia all treaties are entered into under the Executive power of the Constitution (S61), and there is no requirement either to advise Parliament or to reveal the contents of treaties prior to entering into them. Australia ratified the ICCPR on 13 August 1980 and in 1991 signed the first Optional Protocol to the ICCPR which allowed an individual to complain directly to the United Nations Human Rights Committee. Australia ratified the ICESCR in 1975 and it came into force for Australia in 1976.

3.6 In recent years there has been greater pressure to advise Parliament of treaties on a more regular basis, since, among other reasons, while the Executive agrees to undertakings via treaties, it is the Parliament which has the power, under S 51 (xxix) - the external affairs power - to develop domestic legislation that implements the provisions of these treaties. [2]

The external affairs power

3.7 Unlike many other Western countries Australia does not have either a bill of rights or a constitutional guarantee of equality. [3] In the absence of such broad provisions, a number of rights have had to be established separately, as is witnessed by Commonwealth legislation relating specifically to discrimination on the basis of race, sex and disability, as well as the establishment of the Human Rights and Equal Opportunity Commission (HREOC). This anti-discrimination legislation must either be based on specific 'domestic' constitutional powers, or must call into play the constitutional external affairs power which allows the development of legislation to implement the provisions of treaties.

3.8 Most Australian anti-discrimination or human rights legislation has been developed through use of the external affairs power. This situation arises not only because of the absence of constitutional guarantees to equality but because the constitution itself does not identify a large number of specific rights. [4] While the High Court has referred to implied rights within the constitution, [5] human rights legislation is still based primarily on external sources. Thus, in its development of human rights, the Commonwealth has been more influenced by external organisations than by an established Australian tradition of equality and equal access to law.

3.9 The content of treaties have been held to 'have no effect in domestic law until they are implemented by legislation.' [6] Consequently, it is not possible to act as though legislation is in place simply because Australia has ratified a treaty.

The content of external affairs power legislation

3.10 The external affairs power effectively assures Parliament of a substantial input to the content of domestic legislation and, indeed, to the timetable of such implementation. This is not to say that the content of treaty-based legislation is uncontroversial. Some of the most substantial debates over the external affairs power concern the content of matters 'external'. The High Court's interpretation of the external affairs power has been relatively broad in recent years. The Court has acknowledged, most recently in Victoria v Commonwealth, that the external affairs power can be understood to include matters external to Australia as well as matters specifically listed in treaties, referring to the statement of Dawson J in Polyukhovich v The Commonwealth:

[The] power extends to places, persons,matters or things physically external to Australia. The word 'affairs' is imprecise, but it is wide enough to cover places, persons, matters or things. the word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'. [7]

3.11 It is also argued that parts, as opposed to the whole, of treaties may be implemented and that it is not necessary for legislation to be restricted to the terms of the treaty:

'The power to enact legislation under the external affairs power is thus a reasonably broad one, but there is one important limitation on the power: mere entry into a treaty does not create a new, plenary head of power for the Commonwealth to enact legislation with respect to the subject matter of the treaty; rather, the legislation must faithfully implement or give effect to the treaty. That is, legislation cannot depart from the terms of the treaty in substance, although it is not required to reproduce word for word the precise language used in the treaty ... The test that has been accepted by the [High] Court is that the legislation must be "capable of being reasonably considered to be appropriate and adapted to give effect to the treaty." ' [8]

3.12 Further, matters of 'international concern' [9] may be legislated on by the Commonwealth pursuant to the external affairs power, and this is a means by which issues not specifically raised in treaties can be considered:

'It is, however, relevant for present purposes to note that the responsible conduct of external affairs in today's world will, on occasion, require observance of the spirit as well as the letter of international agreements, compliance with recommendations of international agencies and pursuit of international objectives which cannot be measured in terms of binding obligations. This was recognised by Evatt and McTiernan JJ in Burgess' Case when ... they commented that "it is not to be assumed that the legislative power over 'external affairs' is limited to the execution of treaties or conventions" and illustrated the comment by adding that "the Parliament may well be deemed competent to legislate for the carrying out of 'recommendations' as well as the 'draft international conventions' resolved upon by the International Labour Organisation or of other international recommendations or requests upon other subject-matters of concern to Australia as a member of the family of nations". Circumstances could well exist in which a law which procured or ensured observance within Australia of the spirit of a treaty or compliance with an international recommendation or pursuit of an international objective would properly be characterised as a law with respect to external affairs, notwithstanding the absence of any potential breach of defined international obligations or of the letter of international law.' [10]

3.13 Thus, even if structures or institutions were not specifically mentioned in treaties it could be assumed that they were necessary in order for the specific provisions to be realised. Hence, the external affairs power has been used in the recent past to develop legislation which is wide in scope and not limited by the specific content of treaties.

3.14 HREOC, in accordance with its more liberal interpretation of access to human rights, believed that the general principles of the ICCPR were broad enough to encompass all the means and processes by which the principles themselves were to be implemented:

'It is generally accepted that, along with liberty, equality is the most important principle imbuing and inspiring the concept of human rights. Fittingly with the fundamental nature of this right, the concept of equality contained in Article 26 includes not only equality before the law but equal protection of the law and effective protection against discrimination. Decisions of the [UN] Human Rights Committee indicate that the obligation embodies in the first sentence of Article 26 to respect and ensure the 'equal protection of the law" constitutes an obligation to prevent discrimination in the law, in the application of the law or in any action under the authority of law. Article 26 thus applies to any laws enacted to give effect to any rights "regardless of whether this has to do with the regulation of the rights of the Covenant or of other human rights including rights provided by the ICESCR or with any other subjective rights and duties.' [11]

3.15 This point was reiterated in HREOC's supplementary submission, which noted that Australia 'has undertaken to eliminate discrimination as well as to seek effective remedies against discrimination in all areas...' [12]

'...the first sentence of Article 26 recognises the right to equality before the law and requires equal protection of the law for "all persons", "without any discrimination."[emphasis in original] The United Nations Human Rights Committee has indicated that discrimination for the purposes of this provision encompasses any distinction which nullifies or impairs the recognition, enjoyment or exercise on an equal footing of human rights and freedoms and which is not a reasonable and objective means to achieve a legitimate purpose.' [13]

3.16 A similar point was also made by the Victorian Council for Civil Liberties which believed that there were 'moral and practical obligations inherent in particular international human rights law'. The extent of such obligations depended on one's interpretation of the relevant conventions and the Council's interpretation was fairly broad:

'I think the most important thing to point out here is that, in the drafting of the convention, the clause that relates to the prohibition of discrimination is regarded as an all inclusive provision which would apply to discrimination on any ground.' [14]

3.17 Notwithstanding, this broad approach has not gone unchallenged, and this difference of opinion is evident in much of the evidence presented to the Committee. A number of witnesses, while acknowledging there had been changes in the interpretation of the external affairs power, indicated that there were limits to the nature and extent of legislation arising from treaties and conventions.

3.18 The Commonwealth Attorney General's department, for instance, argued that if there was no specific mention of a benefit in a treaty, this should not be included in any domestic legislation unless it could be argued that the level of 'international concern' about the issue was sufficiently high to warrant such inclusion. [15] In the context of the sexuality discrimination legislation, the department considered that benefits such as some aspects of goods and services, and the prohibition of vilification [16] could not be added to legislation because they were not specifically spelt out in the ICCPR: [17]'reliance on powers other than the external affairs power will not give constitutional support to the full operation sought by the Bill and...the external affairs power will not support all of the proposed provisions.' [18]

3.19 In this argument, the department made a clear distinction between the external affairs power and domestic powers of the constitution, and between items specifically mentioned in external covenants and those not specifically mentioned. Some basic goods and services may be provided through the domestic powers of the constitution. [19] Certain rights, such as 'employment, education, housing, property, leisure' could be seen as coming within "rights and freedoms" and others could relate to "equality before the law" (Commonwealth laws and programs). However the constitutional status of other benefits may depend on a belief in general equality, yet this principle of general equality is not present in either the ICCPR or the ICESCR:

'There may be, however, certain provisions of the bill which go beyond what could be covered by the external affairs power. For instance, its application to the provision of goods and services and facilities would not seem to be a right that is covered by any of the covenants. It is not a right provided by law; hence there may be some doubts as to whether it would extend that far.' [20]

3.20 Most other Commonwealth anti-discrimination legislation has standard provisions regarding access to goods and services and to facilities. These clauses, recognising the need for people to obtain equal access to standard services, are to be found in the Disability Discrimination Act 1992 (DDA), the Sex Discrimination Act 1984 (SDA) and the Racial Discrimination Act 1976 (RDA). However, the DDA relies heavily on external measures for details. The Declaration of the Rights of Disabled Persons (especially Sections 6 and 7) states that there shall be access to a range of goods and services, employment and education.

3.21 It could be argued that in spite of no covenant specifically referring to goods and services there must be structures in place that allow for the operation of other more specific rights. According to some witnesses, the provision of access to goods and services and facilities through legislation was seen as both appropriate and possible, via Article 26 of the ICCPR: 'the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground.' [21]

3.22 This view was supported by HREOC which argued it has been established that specific issues do not have to be mentioned in particular covenants or treaties in order to be covered. [22] In this view it is assumed that the pre-conditions for effective operation of the principles of a treaty can be established separately, and that if there is ratification of a treaty or convention then there is by implication a willingness to establish those preconditions - such as access to rights - assuming these are not too far removed from the gist of the treaty or covenant. [23] This view is supported by a number of precedents:

'All means which are appropriate and are adopted to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within the power. The power must be construed liberally, and much must necessarily be left to the discretion of the contracting States in framing legislation, or otherwise giving effect to the convention. For instance, general safety and other regulations may be necessary for supplementing the convention, and probably exemptions are legitimate where it appears unnecessary or undesirable that the provisions of the convention should apply. A construction of the power that enables a ready application of the convention to various circumstances and conditions is preferable to one that insists upon an inflexible and rigid adherence to the stimulations of the convention. After all, we should remember that the power is conferred for the purpose of carrying out an international and not a mere local agreement. [24]

3.23 Thus, even though the ICCPR does not refer to incitement to hatred of persons on the basis of attributes, it may be possible to either argue that freedom from vilification is intended in the covenants, or is deemed to be a precondition for the operation of equality. Otherwise, one may have to identify other ways in which the Clause may be constitutional:

'...in the area of sexual preference and transgender identity, there would not appear to be an equivalent authorisation or obligation [to the Convention on the Elimination of Racial Discrimination].These provisions therefore will probably only come within constitutional power to the extent that they can validly rely on powers (other than the external affairs power) relevant to the matters outlined in Clause 4.' [25]

3.24 The Attorney General's department was also concerned that the external affairs power would not support a very broad definition of transgender and transsexual. [26] Working on the assumption that either 'sex' or 'other status' categories in the ICCPR would give some coverage to people on the basis of their sexual orientation and transgender identity, the department advised that a definition which included some 'sexual' behaviour that might be 'transitory' in nature, or else not classifed as part of sexual or gender identification (such as transvestism) [27] would probably not be covered:

'We would have some doubts whether, from a constitutional point of view, there would be support under the external affairs power for the application of the bill to that category of persons, as opposed to those who have, in some more permanent way, adopted a different gender role. ' [28]

3.25 A further argument in the Attorney General's department's evidence was that the extent of rights and benefits available to transgendered persons (even assuming a more limited definition) [29] would be subject to the same restrictions applicable to the benefits available to persons of non-heterosexual status - that is, that only those benefits listed in the conventions could be extended, under the use of the external affairs power. [30]

Other sources of international support

3.26 It was also emphasised that there were other sources of support for specific types of legislation. These were international customary law [31] and the writings of eminent publicists [32] and these were seen as strengthening obligations through helping establish international 'concern' on specific issues such as sexuality:

'Australia's obligations under Customary International Law stem from the growing 'international concern" over, and state practice concerning, the rights of sexual minorities. That sexuality discrimination is a matter of international concern is obvious when recent state practice is reviewed. State practice leads to the development of Customary International Law and is a separate source of obligation for Australia.' [33]

3.27 Those who have ratified treaties and assumed obligations under them are further influenced in their understanding of these obligations by writings which deal specifically with human rights issues:

'Our international law obligations do not just stem from the treaty; they also developed from customary international law - that is, the practice of states themselves. If we look at that practice ... we will see that there is now substantial practice to demonstrate a great international concern over the treatment of sexual minorities and transgender people ... Also we have seen developments within international conferences ... [which] expressed international concern over the treatment of sexual minorities ... Finally, ... I would also like to highlight that international law is further formed by the opinions of what is called 'eminent publicists'....there is now quite a substantial volume of work by publicists who recognise that international human rights law does include obligations to protect people on the basis of their sexuality.' [34]

3.28 It was also noted that a level of concern by itself, regardless of the presence of a treaty on an issue, could be sufficient to support legislation:

'...it has been accepted that an international obligation is not a prerequisite for legislation under the external affairs power. International concern is also sufficient to activate that power. In the context of sexuality discrimination, I think it is very clear that there is considerable international concern on the question of discrimination against gay men and lesbians.

I would point out to the committee that the level of international concern required does not have to reach the level of customary international law. It does not have to be a universal concern manifested by every state in the world. It is sufficient that a significant number of states demonstrate a concern about these issues to reach the level of international concern that theHigh Court has mentioned in its judgments.' [35]

3.29 The use of international jurisprudence to build a base of support for particular views was referred to by other witnesses. The main difference between witnesses did not concern the acceptance of this practice but the extent to which international concern relating to sexuality and transgender identity was sufficiently high to add support to any treaty obligations. One organisation stated that different political situations could affect the extent to which international support was openly expressed, but that this had to be distinguished from a lack of interest in an issue:

'I think the point is that at both conferences, first at Vienna and then in Beijing, there was an increasing number of countries each time who made statements in favour of addressing the issue of sexuality discrimination. That is our example of growing international concern. Perhaps that has not yet reached the final statement of a particular conference, but that is the direction in which we are heading.' [36]

3.30 The Attorney General's Department, while accepting the use of international case law and writings, [37] did not consider the level of international concern regarding sexuality and gender issues sufficiently high to add support to any treaty obligations. This situation could change over time, as with all issues 'what is regarded as discrimination or 'another status' may evolve and international practice and acceptance may develop'. [38] But at this particular point, it was thought, concern had not reached a level similar to that acquired by disability issues prior to specific action being taken on disability. And, even though sexuality or sexual orientation was becoming more of an issue, gender identity was less prominent. [39]

3.31 The department also noted that, if sexuality was to be considered a subject of international concern, including through discussion in cases and writings, this would more likely be on the basis of its being considered included within the ICCPR's 'other status' rather than 'sex' category.' [40] Another witness, the ALRC, also referred to the impact of international law, emphasising that a wide range of sources could be used to support particular arguments or enhance interpretations:

'...in order to amplify the meaning of the words used in article 26 [of the ICCPR] we have drawn not only upon the meagre jurisprudence-really one, possibly two cases, under the ICCPR. We have drawn also from a greater volume of jurisprudence in Canada ... and also the European Convention on Human Rights. We do so on the basis that the articles under both of those conventions are broadly similar to the terms used under the ICCPR. Of course, Australia is a a signatory to only the ICCPR.' [41]

Timetable for implementing legislation

3.32 In ratifying treaties, it is possible for countries to request exemptions from various provisions or to take advantage of any lack of an agreed timetable for implementation of rights.

3.33 With respect to the two main treaties the ICCPR and the ICESCR, there are no timetables for implementation, and to this extent Australia is not in breach of any arrangements. There is, however, some support for the idea that required legislation will be passed within a 'reasonable time'. [42]

3.34 It is also important to note that Australia included a reservation to its ratification of the ICCPR. [43] This reservation, later withdrawn, has no direct bearing on issues of sexuality/gender. However, it indicates that member nations have a role in determining any specific issues that may be delayed or not implemented. Importantly, the existence of reservations has a corollorary - that those areas where reservations are not sought are taken as areas which are agreed to. In theory, Australia's support of ICCPR and ICESCR was freely given; and, since a choice did exist, there is an implicit understanding at least that obligations will be met.

Obligations and Sovereignty

3.35 For some people the continual reference to overseas experience and decisions reflects an inappropriate influence by nations or institutions on an autonomous state and on the power of Parliament to legislate. There is concern about the appropriateness of an international body such as the United Nations defining rights which may not be universal, and which are not always available in some member states: [44]

'The point I am making is that only 19 out of the 40-odd countries that are represented on these UN human rights committees are countries which are free or partly free. These people representing their own countries are making decisions for and on behalf of us here in Australia. Australians should be making law in Australia for and on behalf of people in Australia rather than having their future dictated by committees from overseas, based half a world away, which are unelected and unaccountable to us.' [45]

3.36 In response, the ALRC stated that although this may be the case, some countries, including Australia, might rather wish to be seen as a leader in democracy:

'...we happen to have a standard of which we can all be justly proud, and I think we need to be seen [to be] enhancing on that in the future rather than diminishing it to meet short-term or more pragmatic judgments, maybe at a fairly regional or local level.' [46]

3.37 There is also some debate about the extent to which any statements of human rights carry obligations and in the inquiry witnesses gave conflicting evidence on the 'obligatory' nature of treaties and on demonstrating compliance through legislative and other change.

3.38 According to HREOC, Australia had a number of obligations which had to be met through positive action:

'States parties to the ICCPR, ... ICESCR and ILO 111 are obliged "to ensure" the realisation of the rights set out in those treaties. The obligations assumed upon ratification involve a positive obligation to protect rights in addition to the more passive undertaking to "respect'" them.' [47]

3.39 This point was reinforced in oral evidence:

'Australia's international human rights obligations require Australia to take all necessary measures to eliminate discrimination including, in our view, discrimination on the grounds of sexual orientation and transgender identity. ' [48]

3.40 A similar view was put forward by other witnesses who emphasised that treaty obligations were accepted as binding by member states, given that they were freely entered into and because it is possible to make reservations regarding specific sections of treaties, a procedure which Australia has previously utilised. [49]

3.41 For a member state to move away from an international obligation because of a change in domestic government (or, indeed, for any reason) was technically possible. [50] However, there were a number of implications, both domestic and international, a point made most clearly by the ALRC:

'...if we do have international legal obligations reflecting earlier judgments, our domestic position becomes that much more complex. We do have a very complex political situation in Australia which does mean that, if we are going to change domestic legal positions, we need to bear in mind not only the domestic political climate at the time but also our international legal obligations and what that puts on us as added responsibilities and, in many ways, makes the debate far more complex.' [51]

3.42 The ALRC further noted that some residual rights may continue in domestic law even after other legislation were passed:

'...normal statutory interpretative approaches by the court would preserve much of what was there before unless it was quite draconian legislation which set about undoing in very express terms each one of those previously existing rights.' [52]

3.43 The Attorney General's department, while not challenging the obligatory nature of ratified treaties per se, did state that it was possible to move relatively slowly to meet undertakings, and that one could argue that limited actions were seen as appropriate given various circumstances:

'...even though the Commonwealth may have the power to enact specific anti-discrimination legislation, failure to take such action would not necessarily mean that Australia would be in breach of its international obligations. States are afforded discretion in determining what measures to take in ensuring that persons whose rights or freedoms are violated have an effective remedy.' [53]

3.44 The department also expressed some reservations about the extent to which more detailed interpretations of treaties might be seen as 'obligatory'. In commenting on the then recent statement by the UN Human Rights Committee concerning the inclusion of 'sexuality' in the phrase 'sex' the department did not perceive such statements to be gospel:

'While the Human Rights Committee is authoritative in the sense that it receives reports from states, makes general comments and so on, we have never accepted that its findings or its decisions are binding on states ... it is always open to a state to reach its own view, which it may have to justify internationally for the course of action it takes.' [54]

3.45 While agreeing that the UN Human Rights Committee might support a particular approach regarding the standing of sexual orientation, for example, Australia might not wish to proceed with any implementation of this. Again, this does reinforce the fact that a state has considerable choice in implementation, including the absence of specific timetables for the development of legislation. [55]

3.46 In this context, the argument is not so much about the freedom and independence of United Nations members as it is about the extent to which members of an international community perceive they maintain their status by fulfilling commitments they entered into freely. According to the ALRC, the issue becomes the extent to which the spirit rather than the letter of treaties dominates a society's approach, the acceptance of the highest level of international debate as the basis for domestic law rather than society settling for a narrow interpretation, or even for no change in domestic law:

'...international law has a very strong normative effect, at the very least, within the Australian domestic jurisdiction, and ... its aims and authority are substantial. We can ignore that and we can avoid meeting our obligations with no domestic legal retribution, although that is open to question on the basis of executive implementation ... we do so at a political cost both domestically and internationally.' [56]

The beneficiaries of sexuality and gender anti-discrimination legislation

3.47 Statements of human rights are interpreted by member states according to their needs and their ability to implement widespread and often substantial change. [57] In interpreting Australia's responsibilities and obligations under international agreements, parties have expressed different opinions not only as to whether there are obligations, but also as to what exactly the treaties have stated; what specific phrases mean; and whether other support is available for particular views. [58]

3.48 Firstly, there was uncertainty as to the who exactly were the beneficiaries of human rights - everyone, or only those who did not appear excluded by various phrases? Secondly, and integral to the first argument, was the debate over whether the term 'sex' in the conventions means 'gender' or 'sexuality', and whether anyone who is not considered to be included under 'sex' can or should be considered covered by the phrase 'other status'.

3.49 As stated above, the two relevant covenants both refer to rights being available to 'everybody' or 'all people', without there being regard to various factors such as race or sex. To some, these phrases are seen as stating that rights are available to all people, regardless.

'...in the drafting of the convention, the clause that relates to the prohibition of discrimination is regarded as an all inclusive provision which would apply to discrimination on any ground.' [59]

3.50 For others, the phrases mean that the rights that are available are not to be withheld from people on the grounds of race, sex, religion etc or 'other status' but can be withheld either if one's dominant characteristic does not appear to be listed under sex, race etc; or one cannot demonstrate that one's dominant characteristic could reasonably be included under 'other status.'

3.51 A third view, which appears to be held concurrently with the first interpretation of general rights, is that while the phrases 'everybody' or 'all people' do mean everyone, the terms ' regardless of sex, race etc' are a form of additional support of the terms 'everybody' or 'all people'. Consequently, the emphasis of this interpretation is not only on the importance of the first interpretation but the inaccuracy of the second viewpoint which seeks to use the secondary phrases as excluding, rather than including. [60]

3.52 HREOC, while clearly supporting the broad and general first interpretation also supplements this with a defence of the inclusive nature of the supporting phrases:

'The general right to equality before the law and equal protection of the law for "all persons", "without any discrimination"... clearly requires that there be no discrimination in the administration of the law on any ground and that the provisions of the covenant should not be interpreted restrictively...

Non discrimination provisions apply to members of any group of persons who hold what could be regarded as a "status", not only to those belonging to the particular groups specified.' [61]

3.53 It could be argued that excluding or including people on the basis of a particular feature is contrary to human rights, and it can be argued that these terms are meant to be read in a non-discriminatory way. In short, the history of exclusion has been such that (and supporting the argument that 'race, sex etc' is only a subordinate and illustrative clause) these examples are to remind people not to automatically exclude substantial numbers of the population. In this context, the words can be seen not as excluding but as including, especially with the use of the phrase 'other status' as a form of catch-all. [62]

3.54 Those who prefer the second interpretation appear to ignore the message of the primary statement to concentrate on the meaning of a subordinate phrase. Nonetheless, since some have read the covenants to effectively exclude from cover all those who are not specifically referred to and cannot logically be included in 'other status' (for a variety of reasons) much time has been spent on this issue. If there are obligations that must be met or should be met, it is necessary to determine the extent of those to whom one has an obligation.

3.55 The Commonwealth Attorney General's department adopted a fairly restricted interpretation of the reference by the ICCPR and ICESCR to the rights available to 'all people' or 'all individuals within [a] state or territory'. [63] The department's submission and evidence did not emphasise that benefits were to be extended to all people. In line with the approach of others, it considered that the treaties apply to specific groups of people, and the main emphasis is on determining whether particular groups are or are not included, [64] and whether time has changed perceptions so as to allow such people now to be included because they can be classified as having some form of status.

3.56 The Attorney General's department did not exclude the possibility of legislation based on an interpretation of the provisions of the ICCPR and ICESCR. Rather, its argument was that any legislation would result not from general rights of mankind (with which it did not appear to agree) but if sexual orientation and gender status could be deemed to come within the category of 'other status' (rather than the category of 'sex') [65] or else be deemed a matter of international concern at the appropriate level. [66]

3.57 In contrast HREOC and others believed that the existing treaties authorised broad and detailed legislation because they gave rights to everyone, and included among those rights the principle of 'equality before the law.' Thus, as well as arguing on the basis that discrimination is not to be applied to anyone on any ground, some witnesses also noted that there was a right to equality before the law which was not specifically withheld from anyone on any ground:

'The other provision in international law which is important is that of equality before the law and equal protection by it. The ICCPR, again, stipulates that provision. As with Article 2.1, the grounds of discrimination enumerated in the second sentence of this provision clearly do not constitute an exhaustive list. Sexual preference is therefore not excluded simply because it is not specifically listed....This is re-iterated in the wording of the article with respect to all persons and without any discrimination, the accent being on 'all' and 'any'. [67]

3.58 In HREOC's view the general principles listed in the ICCPR - the right to equality and equal treatment before the law, the prohibition of any form of discrimination against any person - were sufficiently wide to protect the rights of people in respect of sexuality and gender identification. This argument depends not only on defining distinct rights but especially on interpreting the Covenant to be stating that rights are available to all people. In such an interpretation the phrases in the Covenant which refer to examples of unacceptable grounds of exclusion are, again, only illustrations of a universal principle:

'Article 2.1 of the ICCPR provides that all rights in the Covenant apply equally to "all individuals". The requirement prohibits discrimination "of any kind" which affects the exercise or enjoyment of rights recognised in the ICCPR ... In general terms, Article 2 requires that the civil and political rights provided for in the Covenant ... be guaranteed without discrimination of any kind...

Article 2.1 does not depend on the independent violation of some other provision of the Covenant. It will apply if discrimination occurs in the manner in which any of the rights set out in the Covenant are guaranteed.Article 26 deals with discrimination not only with respect to those rights recognised in the ICCPR itself but in any area of law or government action, federal state or territory. It provides an independent right to equality.' [68]

Sexuality -Privacy, Sex or 'Other Status'?

3.59 Given these differences of opinion regarding the application of general principles of equality, there has been substantial debate in the community on the issue of access to human rights through inclusion under some other part of the ICCPR. [69] This debate spilled over into the Committee's inquiry to some extent as various parties sought to establish the relative merits of considering freedom from discrimination on the basis of sexual orientation (and, to some lesser extent, gender status) as being included under 'privacy', 'sex' or 'other status'.

Privacy

3.60 The issue of 'privacy' arose partly because of the decision by the United Nations Human Rights Committe that the rights of an individual to freedom from arbitrary invasion of privacy under Article 17 of the ICCPR had been transgressed. [70] This decision, made on March 31 1994, was a response to the application by Nicholas Toonen from Tasmania under the first Optional Protocol [71] which claimed that sections of the then existing criminal legislation in Tasmania, outlawing various forms of sexual activity, were in breach of the ICCPR. The United Nations Human Rights Committee decision, by agreeing that privacy had been invaded, implicitly recognised that Mr Toonen was a person entitled to the protection of ICCPR since it did not establish any proviso regarding this breach - for example, that although ordinarily this might be a breach of privacy, a gay man had no such right. [72]

3.61 The UN Committee believed that although there was an invasion of privacy, it was not 'unlawful' insofar as it was authorised by the existing Tasmanian Criminal Code. However, it could possibly be considered an arbitrary invasion of privacy in that such invasion was contrary to the principles in the ICCPR:

'...the committee interprets the requirement of reasonableness to imply that any intereference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.' [73]

3.62 The Commonwealth Attorney Generals department referred to this case in its evidence, but did not draw any wider implications from it. [74] The department suggested that, although countries were under no obligation to accept this interpretation of what the ICCPR meant (as opposed to the need to accept the more formal statements of rights that exist within the ICCPR itself) [75] the issue of privacy was a peg on which to hang various claims:

'...we saw that decision as very much based on the privacy article and the interference with privacy in an arbitrary way.' [76]

3.63 To a degree, the Commonwealth legislation, the Human Rights (Sexual Conduct) Act 1994 ratified this viewpoint, since its only main section referred to a right to freedom from arbitrary invasion of privacy. [77]

'Sex' or 'Other Status'

3.64 Some parties have developed arguments suggesting that the various bases on which one may not discriminate are fairly wide, especially the 'other status' category. [78] Australia as the relevant State party involved in the Toonen case, [79] was provided with the communication and, inter alia requested the UN Human Rights Committee to determine whether 'sexuality' could be included under the heading of 'other status': [80]

'We as the Australian government at the time sought the views of the committee on that specific question of whether sexual preference was embraced by the term; 'other status' and my understanding is that the committee in a sense ducked that issue.' [81]

3.65 In its response, the UN Committee suggested that 'sexual preference' discrimination could be included under discrimination based on 'sex'. There was some dissent from this argument by one of the members of the Committee, not because of any desire to limit the number of categories of persons subject to protection, but because it was considered that the more appropriate status was 'other':

'The committee stated that the word 'sex' in article 26 should be taken to include sexual orientation. There was, of course, a dissenting report from one member of that committee, which actually said that sexuality was different but that it was nonetheless covered by the covenant. The ultimate effect is that sexuality is covered in all the contemporary jurisprudence with respect to the covenant and, in particular, article 26 of that instrument.' [82]

3.66 The Tasmanian government itself had agreed that 'sexuality' would more appropriately be classed as an 'other' status, although it did not necessarily argue that Australia had an obligation to protect those who could come under 'other' status. [83]

3.67 Although the UN view was unusual (given that 'sex' usually means 'gender'), this interpretation at least provides some area for future complainants to refer to. However, it does avoid the main issue of the inclusive or exclusive nature of the ICCPR principles, and is not a view widely shared:

'...while there were remarks that sexual preference could be embraced within sex as a ground of discrimination, our view is that that remark is not particularly well-founded as a matter of international jurisprudence - that sexual preference equates with sex as a ground of non-discrimination.' [84]

Transgender

3.68 The status of transgender people has received less attention in the sexuality debate and certainly as far as the decisions of the United Nations Human Rights Committe is concerned. However, given that transgender status is primarily an issue relating to gender identity, [85] there would be greater justification in considering that gender identity would be included within 'sex', since 'sex' is primarily seen as 'gender' in conventions and anti-discrimination law.

3.69 This argument is given some weight by the case referred to by HREOC from the European Court of Justice, where transsexuals were included under the category of 'sex', although it is not clear just what is covered by the term 'transsexual':

'In a recent case before the European Court of Justice concerning whether rights guaranteed under the European Union Equal Treatment Directive apply to transsexuals, the Advocate-General was firmly of the view that protection from discrimination [on] the grounds of sex should be given its widest possible interpretation "including all situations in which sex appears to be a discriminatory factor" and found that the Directive could and should apply to transsexuals. A similar approach is likely to be taken towards the inclusion of transgender identity within the areas of protection of the Covenant.' [86]

3.70 The Victorian Council for Civil Liberties believed that transgender would also be covered by 'our international obligations' although this may be more on the grounds of the Council's adherence to all-inclusive categories in the ICCPR than on a belief that transgender or transsexual status relates to 'sex'. [87]

3.71 It is worth noting, though, that the Commonwealth Attorney General's department believed that transgender status would be more likely covered under 'other status' in the covenants, assuming that this 'status' was more or less permanent. [88] This point about 'other status' was also accepted by other witnesses, some of whom noted the very broad issues which could be subsumed within 'other status':

'The reason why I mentioned past cases is in reference to the broad interpretation which the Human Rights Committee has given to articles 2.1 and 26 of the convention. In past cases, for instance, they have said that whether you go to a private school or a public school would come uner the other status of those articles in the convention. In other words, they give a very broad interpretation of what is covered under article 2.1 and article 26.' [89]

Domestic Powers of the Constitution

3.72 The domestic powers of the Constitution allow for the development of Commonwealth human rights legislation which would apply to a number of areas including employment, access to goods and services, and freedom from vilification, harassment and violence. [90] These powers include:

S 51(i)- trade and commerce;
S51(xiii) banking;
S51(xiv) insurance;
S 51(xx) corporations; [91]
S52(ii) public service matters;
S61- the Executive power;
S x - the incidentals power; [92]
S122- the Territories power. [93]

3.73 Few witnesses referred specifically to the taxation power but it is through this that the Commonwealth is able to regulate superannuation, an issue which was of considerable concern to many witnesses. [94] The Human Rights and Equal Opportunity Commission also referred to divorce and matrimonial causes, including parental rights, 'custody' of children, guardianship (S 51(xxii)); marriage(S51(xxi)); provisions of sickness and hospital benefits and medical and dental services (S51(xxiv)), and the public Acts and records, and the judicial proceedings of the States (S51(xxv)).

'Acts done by or on behalf of the Commonwealth (or a Territory) or by a body established for a public purpose by a law of the Commonwealth (or of a Territory) and exercising power conferred by a law of the Commonwealth or of a Territory can also be supported by the power implicit in the legislative and executive power to establish the body or confer the power concerned. A power encompasses everything incidental to the exercise of the of the main purpose of the power, including incidental effects in areas beyond the legislative powers of the Commonwealth.' [95]

3.74 Without recourse to the external affairs power, Commonwealth legislation, using the domestic provisions outlined above, can affect the following areas:

employment, except State employment and intra State non-incorporated employment;
goods and services,except those provided by a state, including transport;
banking except that wholly confined to a State;
education and training provided by the Commonwealth;
insurance and superannuation, except those services deemed to be intra State ;
payment of various benefits, such as social security and veterans pensions and allowances;
payment of pharmaceutical and medical services. [96]

3.75 There was little argument in submissions or in evidence to the Committee which challenged the use of certain domestic powers to develop some form of anti-discrimination legislation. The main issues raised were the extent to which sufficiently broad and comprehensive legislation could be developed using these provisions without utilising the external affairs power; and exactly what detail could be provided through use of the external affairs power.

3.76 Although HREOC suggested that the domestic provisions of the constitution had been the basis for much of the Disability Discrimination Act 1992 and the Sex Discrimination Act 1984 [97] it is likely that the strength of that legislation comes mostly from the external affairs power. [98] With respect to matters of sexuality and gender, the domestic powers would provide a basic protection, according to the Attorney General's department; [99] however, detail could only be provided by reference to the broad (or narrow, depending on one's point of view) benefits outlined in treaties or other forums. [100]

3.77 Few submissions specified the ways in which they believed domestic-based legislation would be limited and the areas in which the external affairs power was essential. However, a number of those witnesses who did discuss this issue considered that while the domestic powers of the constitution were important as a base the real force of legislation would only be realised if the external affairs power was utilised.

3.78 In part this argument reflected a belief that, while a number of domestic powers had been reinforced and ratified by recent High Court decisions, [101] use of the external affairs power was a means of giving validity to a number of issues which would be more difficult to support if one was dependent only on domestic powers.

3.79 However, a more substantial consideration was the extent to which the Commonwealth would use the external affairs power to develop a series of rights and then seek to override State legislation in order to impose uniform anti-discrimination legislation. [102] In its current form, the Sexuality Discrimination Bill 1995 primarily affects Commonwealth legislation. While it does seek to regulate State public sector employment and does utilise the corporations power effectively in order to minimise exemptions from its application in employment and in the provision of services ; and while Section 109 of the Constitution enables the provisions of State anti-discrimination legislation to be overridden where incompatible, [103] much other legislation remains unchanged.

3.80 The Attorney General's department, as noted, saw that the domestic powers of the constitution would provide a number of rights and certain goods and services, but would not support certain other benefits which depended on an agreed principle of general equality. The department also believed that the external affairs power would be necessary to cover non-incorporated intra state employment [104] (presumably on the grounds that employment confined to a State was within the basis of State control if the corporations power could not operate), and that the definition of transgender in the draft legislation might be too broad. [105]

3.81 As well, the department expressed a belief that the Commonwealth marriage power only permitted marriage between a man and a woman, which would affect some transgender marriages [106] and all same sex marriages. Even an appeal to the external affairs power would not deal with all these matters. [107] 'Our advice is that a union of a homosexual couple would not be covered by the power.' [108] The same view was given in oral evidence. [109] Although acknowledging that certain benefits could be given to people in a same sex union the department nonetheless distinguished such relationships from marriage. [110]

3.82 Similarly, the department advised that the marriage power did not permit a marriage between a couple one at least of whom was formally transgender - that is, had undergone re-assignment surgery. [111] Nonetheless, the department acknowledged it was possible that at some time in the future, given acceptance of the status of transgendered persons in respect of payment of Commonwealth benefits (such as social security) the marriage power might extend to such relationships:

'...the Department considers that it would be conceivable that courts would hold that the marriage power extended to the union of a post operative 'masculine to feminine' transgender person with a male or a post-operative'feminine to masculine' transgender person with a female if general developments in the States and Territories and other areas such as social security are such that increasingly gender reassignment procedures are recognised by the law as changing the gender of the person.' [112]

3.83 The department did not specifically refer to external sources which might affect the view of marriage, possibly consciously limiting change in this area to an Australian environment rather than one influenced by external theories. It is to be noted also that the department is not stating that constitutional change cannot occur, only that there appear to be no grounds for stating that society is ready for such change at present.

3.84 Other witnesses were more sanguine about not only the interpretation of the external affairs power but also of the extent to which the domestic powers were being interpreted more flexibly. In respect to marriage, one witness believed that the connotation of marriage, among other things, has changed over time. This change has been recognised and could lead to a more extensive interpretation of marriage, specifically with respect to same sex couples:

'We do not really know how the High Court would interpret the marriage power but there is a very good argument that the marriage power would extend to the marriage of same sex couples. ... other members of the court have adopted a far more liberal approach to constitutional interpretation, seeing the document as a living tree, a blueprint for our society that does not necessarily leave us in the moral and social era of 1900 but that does permit change with time.' [113]

3.85 Reference was made by a number of witnesses to the fact that marriage had changed in a number of countries, including those countries to which Australia refers in expanding its understanding of international human rights issues. However, since the ICCPR is quite specific about marriage being a right for men and women, the convention itself cannot be used as a basis for argument. Further, what is often referred to as a more flexible system of marriage in other countries is often rather a form of church or state recognition which continues to be distinguished from marriage. [114]

States Rights

3.86 The discussion concerning the right of the Commonwealth to utilise the external affairs power also raised the issue of states rights, and the degree to which State powers might be abused by the development of national anti-discrimination legislation.

3.87 Given that a majority of the States and Territories had developed sexuality discrimination legislation, and some had developed gender discrimination legislation, prior to the Commonwealth's Sexuality Discrimination Bill 1995, and the Human Rights (Sexual Conduct) Act 1994, states rights were not the subject of much explicit debate in the Committee's hearings. Nonetheless, the issue of states rights is an integral part of the debate on the use of the external affairs power, a point made openly by one witness:

'The use of the external affairs power has certainly raised considerable debate, particularly in Tasmania and outlying states in recent years. A number of comments have been made about the use and potential abuse of the external affairs power for political purposes in past years ... All this is raising the point of whether you see this legislation overriding state laws and making totally redundant the state laws with respect to sexual discrimination or sexuality discrimination, and whether it is in fact a constitutionally valid law of the Commonwealth.' [115]

3.88 Although witnesses in favour of Commonwealth legislation believed that the gaps in various State and Territory legislation meant that Commonwealth legislation was required for the sake of uniformity and at least minimal coverage, [116] the extension of the legislation to the State public sector raised the problem of whether the Commonwealth sought to protect the rights or wishes of some over longer established principles of States' independence. In particular, the constitutional requirement not to fetter the effective operation of States was raised: [117]

'Inherent in the Constitution are certain limits on Commonwealth constitutional power, deriving from federalism. These implied limits prevent the Commonwealth from discriminating against a state (or the states generally) by imposing some special burden, and prevent the Commonwealth from impairing the continued existence of a state or its capacity to function. Passing sexuality discrimination legislation clearly does not discriminate against any of the states. Nor does it threaten their continued existence. ' [118]

3.89 Nonetheless, the concept of States rights was not seen as an excuse for neglecting international obligations:

'The Commonwealth is charged with implementing Australia's international obligations and the so-called 'States rights' argument is not a valid reason for the Commonwealth to abdicate its international responsibility in this area.' [119]

3.90 Another witness suggested that there could be some areas where a state may challenge overriding Commonwealth legislation especially in the operation of a state public service and in the operation of employment policies and conditions. [120] The witness predicted that anti-discrimination legislation would not be found to invade states' capacity to function, an opinion he considered would be maintained by the High Court:

'There may be an arguable point concerning whether such legislation impairs a state's capacity to function, in that it restricts a state's capacity to regulate its own public service [121] and set employment policies and conditions...However, it is unlikely that the High Court would hold that anti-discrimination legislation offends this restriction, as such legislation will not affect the economic position of the states (in deciding the size of their public service) nor in setting required qualifications for employment (given that sexuality could never be considered relevant to the issue of qualifications). [122]

3.91 A similar conclusion was reached by another commentator who believed that, although 'there is an argument that such a restriction would fall foul of the implied prohibition as applied in the Education Union Case ... the prevention of discrimination on irrelevant grounds ... will not be affected by the Court's reasoning in that case.' [123]

Conclusion

3.92 In spite of profound ideological differences between parties on the coverage of issues, there was some general agreement that although the domestic constitutional powers can provide a framework for anti-discrimination law, the external affairs power can be broad and may provide a range of detail for legislation. The extent to which detail is accepted varies according to the interpretation of various covenants, and, to some extent, the weight that is given to other sources of influence.Access to human rights, and the content of human rights legislation, is therefore subject to considerable debate. Although various parties would like a definitive interpretation, favouring their particular point of view, this is highly unlikely given that societies are forever defining themselves and the rights available to their citizens and others.

Footnotes:

[1] See Appendix 3.

[2] State and Territory governments may also make human rights laws as a part of their power to legislate for peace, order and good government(O'Neill and Handley, Retreat From Injustice, pp. 34, 38, 118).While there is no requirement that such legislation refer to an external treaty, State and Territory governments have implemented a wide range of human rights legislation, including that relating to sexuality and gender. See Chapter 4.

[3] See O'Neill and Handley, Retreat From Injustice, pp. 22-24

See also Evidence, Australian Law Reform Commission, p. 56.

[4] Such as the right to religious freedom, the right for property to be purchased at a fair price - see Retreat From Injustice, pp. 26-27, 39-40, 45-74.

[5] Evidence, p. 64 see also Retreat From Injustice, p. 27 and Chapter 3 passim.

[6] Evidence, Ms K.Walker, p. 286.

[7] Victoria v The Commonwealth, Brennan CJ,Toohey,Gaudron,McHugh and Gummow JJ at p. 15.

[8] Submission, Ms K. Walker, Vol. 5, p. 949.

[9] For a discussion of 'matters of international concern' see below, Paragraphs 3.26-3.31.

[10] Commonwealth v Tasmania see O'Neill and Handley, Retreat From Injustice, pp. 29-30.

[11] Submission, HREOC, Vol. 7, p. 1562.

[12] Submission, HREOC, Vol. 12, p. 2852.

[13] Submission, HREOC, Vol. 12, p. 2853.

[14] Evidence, Victorian Council of Civil Liberties, pp. 799-800.

See also Evidence, Mr W Morgan, p. 274: 'both of those articles of the covenant do not specifically mention sexual orientation or sexuality or some analogous ground. They are both what we call 'open-ended clauses'. In other words, they say that no discrimination is to take place. They enumerate a number of grounds and then they say ' or on any other basis'.

[15] Submission, Commonwealth Attorney General's department, Vol. 7, p.1511.

[16] Submission, Commonwealth Attorney General's department, for access to goods and services, and facilities, Vol. 7, p.1519; and Evidence, p. 6. Superannuation was referred to in the department's Submission (seeVol. 7, p.1519), but was not discussed further.

Incitement to hatred was also an area which the department's submission considered was ecluded from possible legislation since it was not mentioned in the relevant covenant, the International Covenant on Civil and Political Rights (ICCPR).

The Victorian Council for Civil Liberties made a similar point with respect to vilification noting that there was a specific mandate in respect of racial, national and religious hatred and incitement to hatred in the ICCPR but not in respect of hatred of 'other groups such as sexual minorities', Evidence p.802.