New discrimination protections for LGBTI people welcomed but wholesale reform still required to fix outdated system

Long overdue legal protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) people that came into effect on 1 August, have been welcomed by leading human rights organisations and LGBTI community groups, but also highlight the need for systemic reform to Australia’s out-dated discrimination laws.

The Sex Discrimination (Sexual Orientation, Gender Identity and Intersex Status) Amendment Act 2013 (Cth) is now in force and adds the new grounds of ‘sexual orientation’, ‘gender identity’ ‘intersex status’ and ‘marital and relationship status’ to existing federal discrimination laws. This means that LGBTI Australians who have been discriminated against on the basis of these attributes may take a complaint of discrimination to the Australian Human Rights Commission and the courts.

The HRLC’s Director of Advocacy, Anna Brown, welcomed the commencement of the laws as an historic advance for the rights of LGBTI people.

“These laws finally deliver legal protections from discrimination at a national level, filling important gaps in protection and setting a new national standard for the protection of transgender, intersex and gender diverse people,” Ms Brown said.  

However, Ms Brown said despite the new areas of coverage, more fundamental reform was needed.

“While there are many people that will benefit immediately, such as employees of federal departments and agencies and people accessing services such as Medicare and Centrelink, unfortunately these new protections have been welded onto an outdated system,” said Ms Brown.

The Sex Discrimination (Sexual Orientation, Gender Identity & Intersex Status) Amendment Act 2013 was introduced after the Government shelved a more ambitious project to consolidate federal anti-discrimination legislation earlier this year. The Government’s draft Human Rights and Anti-Discrimination Bill 2012 consolidated five federal anti-discrimination laws and was the subject of a Senate committee inquiry. The HRAD Bill is yet to be released by the Government in its final form.

“The update and modernisation of our anti-discrimination laws is long overdue and would have benefited businesses and individuals alike,” said Ms Brown.

“We’re talking about five different laws passed over decades, the oldest of which is now close to 40 years old,” added Ms Brown.

The Attorney-General Mark Dreyfus has committed to continuing the Government’s project of consolidating the five federal anti-discrimination laws if re-elected.

“We welcome the Federal Government’s commitment to continue with its project to consolidate and update its federal anti-discrimination laws to relieve users of this complex, costly and inefficient system,” said Ms Brown.

However, the HRLC is concerned at suggestions by the Attorney-General that further consultation is required before the amended HRAD Bill could be released.

“The Government already indicated that it would fix the controversial ‘offence’ clause that caused significant confusion and concern during the consultation on the exposure draft Bill. With this amendment, the Bill is ready to be introduced. These reforms have been the subject of significant discussion and consultation, including no less than three public inquiries, since 2007. We need action,” said Ms Brown.

The Attorney-General also announced a temporary measure to exempt those acting under State laws from breaching the new federal law. This temporary exemption will last for 12 months to allow time for State and Territory Governments to request permanent exemptions for particular laws. As part of this discussion the Attorney General Mark Dreyfus indicated he will work with States and Territories towards nationally consistent recognition of sex and gender, including in birth certificates.

“It is important that thee laws provide a new national standard to protect LGBTI people from unfair treatment and harm and this means identifying and amending outdated State and Territory laws,” said Ms Brown.

The HRLC welcomed the move towards reform of State and Territory laws on recognition of sex.

“We hope that in the coming year State and Territory governments will consult with transgender and intersex people and bring their birth certificate laws into line with best practice, reflected in new federal guidelines, ensuring they are treated with dignity and respect,” added Ms Brown.

More information about the Sex Discrimination (Sexual Orientation, Gender Identity and Intersex Status) Amendment Act 2013 (Cth) is available on the Australian Human Rights Commission website.