Additional Comment
Senator Helen Coonan, Liberal Party
My involvement with the inquiry into the Sexuality Discrimination
Bill 1995 ("the Bill") has been minimal as the official
proceedings and public hearings were nearing completion well in advance
of my substantive membership of the Legal and Constitutional References
Committee. I am therefore reluctant to reach concluded views on this very
complex matter. However, against the background of the Bill, my preliminary
consideration of the issues leads me to highlight the following factors:
- Most State and Territories have already enacted specific anti-discrimination
legislation recognising sexuality and to a lesser extent gender status
as possible grounds upon which a person can experience adverse discrimination.
Six of the eight Australian States and Territories prohibit discrimination
on the grounds of sexuality and four prohibit discrimination of the
grounds of transgender identity. [1]
- Although it can be said that the various legislative enactments in
force in the States and Territories do not provide a totally comprehensive
and thorough response to some of the areas of concern identified in
the inquiry, as a generalisation there are few areas where the States
and Territories cannot act.
- The day to day practicalities and issues raised by persons experiencing
discrimination involve matters over which the States and Territories
exercise control and where focused and effective outcomes can be delivered
locally.
- It is said in the Majority Report that the development of the Bill
was based on the premise that the Commonwealth could pass the
Bill as an exercise of the external affairs power and as a domestic
law implementing Australia's international obligations pursuant to the
International Covenant on Civil and Political Rights.
- Assuming for the purposes of the argument, that this is legally correct,
the question is whether the Commonwealth should pass a omnibus law which
will cover the field on subject matters where there are valid State
and Territory laws in existence thereby rendering inoperative those
laws to the extent of any inconsistency.
- Of course there are areas primarily under Commonwealth control where
legitimate concerns may need to be addressed by a precise legislative
response to ensure that people are not accorded different treatment
by reason of sexuality or gender status.
- The terms of reference and the Bill do not contemplate such precision
which in my opinion is essential not only to avoid the pitfalls of an
overarching and poorly thought out Commonwealth law, but in order to
comprehensively identify and address those areas where existing State
and Territory legislation falls short of the mark.
SENATOR HELEN COONAN
27 November 1997
Footnotes:
[1] Majority Report;1997, Chapter 4, p. 87.