On the eve of IDAHOT (International Day Against Homophobia, Biphobia & Transphobia) ILGA released the 10th edition of its annual State-Sponsored Homophobia Report, a world survey of laws: criminalisation, protection and recognition of same-sex love. The HRLC’s Anna Brown contributed an essay on progressing the rights of lesbian, gay and bisexual people in the Oceania region.
At the establishment of the Oceania division of the International Lesbian and Gay Association (ILGA) in early 2014, civil society participants identified the region as the ‘pearl in the crown’ of the lesbian, gay, bisexual, transgender and intersex (LGBTI) movement, due to the potential for the region’s unique cultural history and legal landscape to provide fertile ground from which to progress the international movement for LGBTI equality.
While this report is focused on discrimination on the basis of sexual orientation, it should be noted that the terms “homosexual” and “transgender” do not align neatly with concepts of gender and sexuality in the Pacific. There are varied and diverse sexual and gender identities within the Pacific that are particular to local cultures with origins in tradition and mythology. An analysis of these identities and related social norms is outside the scope of this article. However, it should be understood that criminalisation of homosexuality in the Oceania region is largely a legacy of colonialism rather than a legal tradition drawn from indigenous cultural practices.
While these criminal laws are largely unenforced in practice, the threat of enforcement and the broader impact of these laws continue to be of concern. There is generally a paucity of detailed and reliable data and research on the lived experiences of LGBTI people in the Pacific. However, it can be said that the existence of criminal laws in and of themselves increases vulnerability to social stigma, discrimination and violence.
More recently, there have been anecdotal reports of homophobic and transphobic views promoted in the Pacific by external conservative religious leaders often active in Uganda and other parts of Africa. According to human rights defenders working in some Pacific Island nations, these outside influences have fuelled anti-LGBT elements of popular Christian religions within the Pacific. These developments are cause for significant concern.
While it is difficult to say that tackling homophobia has followed a linear progression in the region, there has been steady improvement when it comes to decriminalising of same-sex sexual acts. The decriminalisation of sodomy in Palau was unquestionably the most significant development in the region in the past year.
In 2014, Palau joined Fiji (2010), Vanuatu and the New Zealand associates Nieu and Tokelau (all in 2007), the Marshall Islands (2005), Australia (1997) and New Zealand (1986) in legalising same-sex sexual conduct. In addition to the positive development in Palau, two other countries, the Cook Islands (an associate of New Zealand) and Nauru, have indicated to the UN that they are willing to repeal their laws criminalising ‘homosexuality’. The Australian and New Zealand Governments have been providing assistance with the drafting of new criminal laws although there has been little, if any, public signs of progress.
The push towards decriminalisation in the Cook Islands was given a further boost in November 2014, when Marie Pa Ariki, a queen in the traditional royalty of the islands (Takitumu paramount chief), criticised the laws, saying that “[Gay] people are knowledgeable and contribute to society and to home life. They are human like everyone else… we are all whanau [family].” However, although Pa Ariki has influence in the Cook Islands, she does not have the power to change laws.
Notably, although Samoa indicated to the UN in 2011 that it did not intend to decriminalise same-sex sexual behaviour recent actions have shown that the government is willing to engage with the LGBTI community and some positive steps have been taken. In 2013, the Samoan Government updated its criminal law in the Crimes Act 2013, including sexual offences, defining “sexual connections” under s. 49(3) to include oral and anal sex, and by inference allowing sexual contact between males if it is “consented to, and voluntarily.” However s. 67 of the new act continues to criminalise sodomy.
Importantly, the 2013 changes included the decriminalisation of female impersonation, affirming the Samoan fa’afafine community. Fa’afafine is a third gender subculture (commonly found in Polynesian cultures), traditionally disposing Samoan culture to be tolerant of transgender people and, by extension, same-sex attracted people within that context. In a further sign of the government’s quiet engagement on LGBTI issues, the leading LGBTI organisation in Samoa has been appointed a member of the country’s newly formed advisory board to the National Human Rights Institute.
However, despite these positive steps, much work remains to be done to achieve decriminalisation across the region, with the Cook Islands, Kiribati, Nauru, Papua New Guinea, Samoa, Solomon Islands, Tonga and Tuvalu all maintaining laws on the books that criminalise same sex sexual acts. The Solomon Islands, Papua New Guinea and Tonga all indicated to the UN that they would not move towards decriminalisation. The Solomon Islands faces an uphill battle after a Law Reform Commission report recommending decriminalisation in 2008 was fiercely opposed.
Kiribati continues to criminalise same-sex sexual relations in its Penal Code despite receiving recommendations in its last review by the UN Human Rights Council. While Kiribati stated that it was ‘prepared to consider’ the recommendations, there does not appear to have taken any active steps since.
In Papua New Guinea, former Opposition Leader Dame Carol Kidu has called for the laws to be repealed, arguing that they are contributing to the country’s HIV/AIDS epidemic, with 2% of the adult population being HIV positive. However, Prime Minister Peter O’Neill stated at the time that, “[t]here’s very strong feelings about [homosexuality] within the country and I think Papua New Guinea is yet to accept such sexual openness.” Another issue of concern in that country is the fact that same-sex attracted male asylum seekers arriving in Australia have been sent to be detained, processed and re-settled in Papua New Guinea.
Off-shore re-settlement of LGBTI asylum seekers arriving in Australia by boat
Any asylum seeker now arriving in Australia or Australian territory by boat is subject to mandatory removal to detention centres on Nauru or Manus Island in Papua New Guinea, despite the criminalisation of male-to-male sexual conduct in these countries. There have been reports of sexual assaults and rapes of gay male detainees on Manus Island, where victims have reported that they fear going to the police because they have been told they will be jailed for being homosexual. According to recent estimates, roughly 36-50 of the 1,056 single male detainees on Manus Island identify as gay or bisexual. There is less known about the numbers of LGBTI asylum seekers sent to Nauru.
It is understood that a number of gay asylum seekers sent to Papua New Guinea are considering changing their refugee claims, from claims based on their sexual orientation to false claims based on some other Convention reason such as religion or political opinion. There are also reportedly a number of asylum seekers who have chosen to return home despite the risks they face in their country of origin. Ultimately, there is concern that asylum claims based on sexual orientation may not even be recognised by some decision-makers in Papua New Guinea. Similar concerns arise for any potential LGBTI asylum seekers in Nauru, although the Government’s commitment to decriminalise same sex sexual activity may signal a more progressive attitude to decision making.
Discriminatory treatment of homosexual acts under the criminal law remains a problem across a small number of states in Australia. Queensland law provides for a differential age of consent in relation to anal intercourse, which indirectly discriminates against men who have sex with men. In 2014, New South Wales legislated to remove the so-called ‘gay panic’ defence but this partial defence to murder remains available in Queensland and South Australia, although the newly elected Queensland Government has announced plans for its absolution. The partial defence allows a suspect to be found guilty of manslaughter rather than murder if they can prove they were provoked into killing as a result of a sexual advance from a member of the same sex.
In April 2013 New Zealand became the first country in the region to legislate for marriage equality, amending the Marriage Act 1955 to define marriage as “the union of two people, regardless of their sex, sexual orientation, or gender identity”. The changes also meant that same sex couples can jointly adopt.
Marriage equality campaigns have been less successful elsewhere in Oceania. In Australia, a marriage equality bill introduced by Liberal Democratic Senator David Leyonhjelm in November 2014 is yet to progress to a vote in the federal parliament and its ultimate fate will likely rest on whether the current governing party permits its members a free vote on the bill. The introduction of this Bill at a federal level followed the passage of the Marriage Equality (Same Sex) Act 2013 in one of Australia’s territories, the Australian Capital Territory (ACT), and a successful challenge to the constitutional validity of that legislation. The ACT law was ruled to be invalid by Australia’s highest court less than one week after a number of same-sex marriages were performed under the new legislation. Prior to the passage of the ACT law a number of state-based same-sex marriage bills had been tabled in state parliaments around the country but none have achieved passage, including Tasmania, Victoria, Western Australia, South Australia and New South Wales. Following the High Court ruling attention has now returned to the federal sphere. In the meantime, a number of civil union and relationship registration schemes remain in place at the state and territory level.
In a number of states and territories in Australia same-sex couples are not permitted to adopt children, although Victoria is set to join New South Wales, Western Australia, Tasmania and the Australian Capital Territory with a new Labor Government committing to legislate for adoption equality. Laws relating to surrogacy vary greatly across Australian jurisdictions but in some states where surrogacy is permitted access is restricted to heterosexual couples.
In Fiji, the Prime Minister, Voreqe Bainimarama, has stated his opposition to same-sex marriage, citing “religious beliefs” in Fiji, noting that opposition to same-sex marriage was a “prominent feature” of submissions to Fiji’s Constitution commission.
While there is a general dearth of discrimination protections in the majority of the Pacific, there have been a small number of positive developments. Increasingly, the efforts of civil society have focussed on advocating for anti-discrimination laws as a means of providing practical protections from unfair treatment experienced in the daily lives of LGBTI people and promoting greater respect for sexual and gender diversity.
In Samoa, the Labour & Employment Relations Act 2013 was passed and introduced sexual orientation and real or perceived HIV status as forbidden grounds for discrimination in employment. In 1997, Fiji had become the second country in the world to include anti-discrimination protections around sexual orientation in its Constitution, and following the suspension of that Constitution following a coup, a new September 2013 Constitution included protection from discrimination on the basis of “sex, gender, sexual orientation, gender identity and expression.” Pacific Island nations that are territories of the United States of America, such as Guam, have some protections against discrimination and hate crime.
In Australia the Sex Discrimination (Sexual Orientation, Gender Identity & Intersex Status) Amendment Act 2013 (Cth) introduced federal protections against discrimination for the first time for LGBTI people, which also responded to a recommendation made during Australia’s first Universal Periodic Review in 2011. Up until this time LGBTI people were protected from discrimination by state and territory anti-discrimination laws of general application but with gaps and weaknesses in protection in a number of areas including, most significantly, lack of protection from unfair treatment by a federal department or agency.
Both federal and state anti-discrimination laws in Australia contain broad permanent exemptions for religious organisations, schools and, in some cases, individuals. One significant improvement in the new federal anti-discrimination law is that it limits the availability of these exemptions in government-funded aged care. This will serve as an important stepping stone towards the removal of the religious exemptions in the future.
In Oceania we have witnessed uneven progress in eliminating state sponsored homophobia. While New Zealand and Australia are well advanced towards achieving equality for lesbian, gay and bisexual people and their families, there is significant ground to be made up in the Pacific and emerging human rights challenges for the region, namely the violations perpetrated by the Australian Government in the operation of its asylum seekers policies and the impact of anti-gay religious groups exported to Oceania from other parts of the world.
While there has been some positive results achieved through the Universal Periodic Review and other UN processes, there remains a disappointing ‘implementation gap’. The establishment of ILGA Oceania and increasing efforts to build the capacity of civil society within the Oceania region will hopefully translate to greater accountability and facilitate greater progress in the years ahead.