Australian Christian Lobby

28 February, 2012

National Human Rights Action Plan Secretariat

Human Rights Policy Branch

Attorney-General’s Department

3-5 National Circuit
BARTON ACT 2600

Re: National Human Rights Action Plan: Baseline Study

The Australian Christian Lobby (ACL) welcomes this opportunity to comment on the National Human Rights Action Plan Baseline Study.

In its submission to the draft Baseline Study, ACL raised a number of concerns, none of which have been addressed in the Baseline Study.

These concerns will be reiterated in this submission.

In submissions to various federal and state inquiries, ACL has expressed concern that rights instruments, while protecting many rights adequately, neglect to protect other rights. The focus on and promotion of certain rights at times inadvertently jeopardises other fundamental rights such as freedom of thought, conscience, and religion. A discussion of human rights without considering these issues is flawed.

In addition, ACL believes that human trafficking and violence against women can be better protected by addressing the issue of prostitution. ACL has been an advocate of the “Swedish model” of prostitution, which targets the purchase of sex. The model has been effective in reducing legal and illegal prostitution and human trafficking. Making the purchase of sex illegal is an important element in tackling both human trafficking and violence against women, two serious human rights issues.

Freedom of thought, conscience, and religion

Article 18 of the International Covenant on Political and Civil Rights provides for the freedom of thought, conscience, and religion.[1] Despite this, the Baseline Study does not address these issues.

Experience has shown that a narrow approach to protecting particular rights or particular groups may have the effect of impinging on these important freedoms.

For example, in Victoria, the Charter of Rights and Freedoms has failed to protect religious groups from the state attempting to impose itself into the internal affairs of faith-based organisations, despite the freedom of religion and conscience being specifically protected in section 14 of the Charter itself.[2]

Cobaw

Cobaw Community Health Services v Christian Youth Camps[3] (“Cobaw”) is one case in which religious freedom was trumped by competing rights. In this case, Christian Youth Camps, a campsite run by the Christian Brethren, was fined because it would not allow Cobaw, a pro-homosexual youth group, to use its facilities, as the beliefs and practices of Cobaw were incompatible with those of the campsite.

Justice Hampel said in her opinion that freedom of religion is not a “stand-alone right” and may be trumped by the rights found in section 8 of the Charter (equality and non-discrimination).[4] She said there is an “obligation, when rights compete... to determine the least limit which can be imposed on the enjoyment of both rights to achieve a balance between them.”[5]

In this case, however, no balance was achieved. The right to freedom of conscience and religion of a privately owned and operated religious organisation was defeated by the right to non-discrimination, even though there were other campsites available (which Cobaw eventually used). Christian Youth Camps’ right to freedom of religion was not absolute and did not extend to being able to impose that right outside of its own organisation. In contrast, it seems that Cobaw’s right to non-discrimination was regarded as absolute, allowing them to demand services despite their actions specifically contradicting the beliefs of the private organisation whose services they demanded.

This case demonstrates the need to strengthen the right to freedom of religion, especially for religious organisations. The failure of the Baseline Study to address religious freedom is of serious concern.

Abortion Law Reform Act

Freedom of conscience has also been a victim of competing human rights in Victoria. Victorian doctors who refuse to perform abortions are forced, under the Abortion Law Reform Act,[6] to refer patients to other doctors who would perform them. This forces doctors who conscientiously object to abortion to be complicit with abortion in violation of their own conscience.

Helen Szoke of the Victorian Equal Opportunity and Human Rights Commission has said that the “right to freedom of conscience needs to be balanced with competing considerations... limits on human rights are necessary in a democratic society that respects the dignity of each individual”.[7]

This reflects an attitude that regards the right to freedom of conscience, a fundamental right in international rights instruments, as less important than the perceived right to obtain an abortion, a right which is not found in any international rights instruments. In fact, the supposed right to obtain an abortion is inconsistent with the Declaration of the Rights of the Child, which states that a child needs “special safeguards and care, including appropriate legal protection, before as well as after birth”.[8]

The fact that the fundamental right of freedom of conscience can be negated by the perceived “right” to abortion – a right not internationally recognised – shows that freedom of conscience deserves special consideration to ensure that it is not routinely negated in this fashion. It is an alarming situation that allows a doctor to be forced to act against his conscience by complying with abortion.

Human trafficking, gender equality, and prostitution

ACL notes that the Baseline Study addresses the issue of human trafficking[9] and issues relating to women[10] including violence against women.[11] While these issues need addressing in any discussion of human rights, the Baseline Study ignores the relevant issue of prostitution, which contributes to both human trafficking and gender inequality.

Queensland’s Crime and Misconduct Commission, in its evaluation of the Prostitution Act 1999, stated:

[as] with prostitution in general, there are a number of key risk factors that make people vulnerable to sex trafficking... . In general, sex trafficking appears to be one of the unfortunate consequences of an industry driven by excessive demand for services with insufficient safeguards to protect vulnerable people.[12]

The US Department of State has also observed that:

Some women, primarily from the People's Republic of China (PRC), the Republic of Korea (ROK), and Southeast Asia, entered the country for the purpose of prostitution, sometimes entering with fraudulently obtained tourist or student visas. Many of these women traveled to the country voluntarily to work in both legal and illegal brothels but under conditions that amounted to debt bondage or sexual servitude.[13]

The South Korean government has written to mayors in Sydney asking to be advised of South Koreans involved in illegal prostitution. This move is a result of figures suggesting at least 1,000 South Koreans are involved in prostitution in Australia, many as a result of sex trafficking.[14]

A Four Corners report revealed the extent of sex slavery in Australia. Thousands of women,[15] particularly from Asia, are lured to Australia, subjected to violence and debt bondage, and forced to work as prostitutes.[16]

Prostitution is a demand-driven industry which provides a market for human trafficking. An important element in tackling the problem of human trafficking is to decrease the demand for prostitution. The most effective way to do this is to implement laws which make the purchase of sex illegal, as has been demonstrated in Sweden.[17] Legalisation or decriminalisation of prostitution creates a greater demand for prostitution which, in turn, creates an environment in which there is a greater risk for human trafficking.

Abuse of women, including violence against women, is also linked to prostitution. Prostituted women experience unacceptable levels of violence in the course of their work. According to one study, “5% to 10% of brothel and private workers” and “upwards of 50% of Sydney street workers report violence at work”.[18] This would not be accepted in any work or home situation, yet is tolerated as part of the job for those in prostitution.

Because of this violence, along with very high rates of sexually transmitted infections,[19] psychological problems,[20] and drug use,[21] ACL regards prostitution as a form of serious abuse and exploitation of women.

A discussion of human rights in the context of gender equality and violence against women without consideration of prostitution is seriously flawed. Similarly, addressing the tragedy of human trafficking while ignoring a major contributing factor in that tragedy is likewise flawed. ACL recommends addressing the topic of prostitution in the context of these two issues.

Gay, lesbian, bisexual and sex or gender diverse people

ACL notes the Baseline Study’s consideration of gay, lesbian, bisexual and sex or gender diverse people.[22] The removal of discrimination in 85 pieces of federal legislation means that non-heterosexuals are no longer unjustly discriminated against in Commonwealth law. ACL supports this but notes that its position is to support the current legal definition of marriage as the union of a man and a woman. ACL also supports the upholding of traditional binary gender, male and female, in all cases where this does not result in unjust discrimination against transsexual or intersex people.

ACL considers it vitally important that religious people and organisations continue to be given the right to freedom of religion, belief, and conscience. As such, religious organisations, schools, and employers should continue to be allowed the right to choose employees according to their religious beliefs, including when these beliefs involve sexuality or lifestyle.

Conclusion

ACL is concerned that the Baseline Study neglects some important considerations.

In particular, human trafficking and violence against women is addressed without any consideration of prostitution and the effects it has on both these issues.

Perhaps most importantly, there is little or no discussion of the fundamental right to freedom of thought, conscience, and religion. These freedoms must be addressed adequately in any discussion of human rights, as experience shows that they can be quashed by competing rights when they are not given adequate protection.

Increasing emphasis on certain rights while failing to maintain the relevance of fundamental freedoms is a potentially dangerous approach which could lead to an imbalance in the approach to rights in our society.

Yours sincerely,

Lyle Shelton

Chief of Staff

1

[1] Article 18(4), International Covenant on Civil and Political Rights, http://www2.ohchr.org/english/law/ccpr.htm

[2] Section 14, Charter of Human Rights and Responsibilities Act 2006.

[3] Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination)[2010] VCAT 1613

[4] Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination)[2010] VCAT 1613, [325]

[5] Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination)[2010] VCAT 1613, [39]

[6] Section 8, Abortion Law Reform Act 2008 (Vic).

[7] Quoted in Brennan, F. (7 September 2010), ‘Let There be Light on Human Rights, Religion and the Law’, adapted from Brennan’s Conannon Oration at the University of Southern Queensland in Toowoomba, http://www.acu.edu.au/__data/assets/pdf_file/0007/275713/Concannon_Oration.pdf, p. 35.

[8] Preamble, United Nations, Declaration of the Rights of the Child (1959), http://www.unicef.org/lac/spbarbados/Legal/global/General/declaration_child1959.pdf, emphasis added.

[9] National Human Rights Action Plan Baseline Study, pp 27-34.

[10] National Human Rights Action Plan Baseline Study, pp 59-72.

[11] National Human Rights Action Plan Baseline Study, pp 61-64.

[12] Crime and Misconduct Commission (2004), Regulating Prostitution: An evaluation of the Prostitution Act 1999 (QLD), http://www.cmc.qld.gov.au/data/portal/00000005/content/39465001129618636127.pdf, pp 26-27

[13] US Department of State (2009), 2009 Human Rights Reports: Australia, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135985.htm.

[14] Nick Tabakoff (February 6, 2012), ‘Korea’s sex call – dob in our prostitutes’, The Daily Telegraph, http://www.news.com.au/national/koreas-sex-call-dob-in-our-prostitutes/story-e6frfkvr-1226263465040

[15] Some estimates are that about 1,000 women are trafficked into Australia for sexual exploitation each year: Humantrafficking.org, ‘Australia’, http://www.humantrafficking.org/countries/australia; see also Australian Centre for the Study of Sexual Assault (June 2005), Briefing No. 5: Trafficking in women for sexual exploitation

[16] ‘Sex Slavery’, Reporter Sally Neighbor (October 17, 2011), ABC, http://www.abc.net.au/4corners/stories/2011/10/06/3333668.htm

[17] Gunilla Ekberg (2007) Update on Swedish Model of Sex Industry Reform, p 5.

[18] Basil Donovan et al (2010), The Sex Industry in Western Australia: A Report to the Western Australian Government, National Centre in HIV Epidemiology and Clinical Research, University of New South Wales, http://www.med.unsw.edu.au/NCHECRweb.nsf/resources/SHPReport/$file/WASexReport.pdf, p 5.

[19] Basil Donovan et al (2010), The Sex Industry in Western Australia: A Report to the Western Australian Government, National Centre in HIV Epidemiology and Clinical Research, University of New South Wales, http://www.med.unsw.edu.au/NCHECRweb.nsf/resources/SHPReport/$file/WASexReport.pdf, p 15.

[20] Basil Donovan et al (2010), The Sex Industry in Western Australia: A Report to the Western Australian Government, National Centre in HIV Epidemiology and Clinical Research, University of New South Wales, http://www.med.unsw.edu.au/NCHECRweb.nsf/resources/SHPReport/$file/WASexReport.pdf, p 16, 37.

[21] Basil Donovan et al (2010), The Sex Industry in Western Australia: A Report to the Western Australian Government, National Centre in HIV Epidemiology and Clinical Research, University of New South Wales, http://www.med.unsw.edu.au/NCHECRweb.nsf/resources/SHPReport/$file/WASexReport.pdf, p 16

[22] National Human Rights Action Plan Baseline Study, pp 93-97.