Submission to:
The Attorney-General’s Department Human Rights Action Plan Baseline Study
September 2011
About ACON
ACON (formerly known as the AIDS Council of NSW) was formed in 1985 as part of the community response to the impact of the HIV/AIDS epidemic in Australia. Today, ACON is Australia’s largest community-based gay, lesbian, bisexual and transgender (GLBT) health and HIV/AIDS organisation. ACON provides information, support and advocacy for the GLBT community and people living with or at risk of acquiring HIV, including sex workers and people who use drugs.
ACON is home to the Community Support Network (CSN), the Positive Living Centre (PLC), the Lesbian and Gay Anti-Violence Project (AVP) and the Sex Workers Outreach Project (SWOP). ACON has its head office in Sydney as well as branches in the Illawarra, NorthernRivers, the Hunter region and the Mid North Coast.
General Comments
ACON was very disappointed that the previous two iterations of Australia’s National Action Plan for human rights excluded mention of the human rights of GLBT people. This is particularly concerning given the lack of other mechanisms such as Commonwealth anti-discrimination protection, or a dedicated Commissioner at the Australian Human Rights Commission to address human rights issues experienced by the GLBT community.
The inclusion of a section of the Baseline Study addressing GLBT issues is therefore welcome. However, ACON is disappointed at the lack of breadth and depth contained in this section, as well as others. The impact of human rights abuses on gay, lesbian, bisexual, transgender (GLBT) communities are well documented in Australia. They include negative impacts on mental health, higher levels of suicide, higher rates of substance abuse, verbal and physical violence as well as economic disadvantage.[1]
The failure of the Baseline Study to mention the vast majority of these issues, along with the lack of mention of human rights issues pertaining to people with HIV, is a serious shortcoming. These are outlined in more detail in the following section.
The Study identifies issues relating to the right to health infrequently and unevenly across its chapters. Specific comments are made below, but ACON feels that issues relating to health need to be addressed more adequately across the breadth of the Baseline Study.
Issues and concerns which the baseline study should incorporate
Chapter 1: Protection and promotion of human rights in Australia
1.5.3 Consolidation of anti-discrimination legislation.
There currently is no Commonwealth legislation prohibiting discrimination on the basis of sexuality and limited prohibitions on discrimination experienced by transgender and intersex people on the basis of their sex and/or gender identity. Where legislation does prohibit discrimination on the basis of sexuality, there are many broad exemptions in which discrimination against GLBT people is supported through exemptions. This, when coupled with the trend for social and welfare services being provided by non-government organisations rather than directly by the state, means that many in our communities, especially the most vulnerable, are unable to enjoy the same freedom from discrimination in employment and education as other Australians. .
Chapter 2: Human rights concerns of the general community
The right to the highest attainable standard of health.
It is disappointing that the issues of stigma faced by people living with or at risk of HIV, especially the communities most affected by HIV in Australia (including gay men and people who use injecting drugs), are not addressed. These issues, along with addressing other social determinants of health, are essential in attaining the highest standard of health.
The right to work.
ACON understands that the workplace is one of the most common places where discrimination takes place. The lack of discussion of labour rights is stark.
ACON argues that there should be a nationally consistent approach to the regulation of sex work across Australia. Decriminalisation in NSW has significantly improved the ability of brothel operators and sex workers to access essential health information and services, like the Sex Workers Outreach Project (SWOP) and other services. A recent study comparing the decriminalised framework in NSW with the licensing framework in Victoria and the criminalised framework in WA showed that the NSW decriminalised framework enabled the widest reach of health services targeting sex workers.[2]Decriminalisation enhances the possibility of achieving the highest standard of health and minimises the possibility of trafficking.
Chapter 3: The human rights experience of specific groups in Australia.
3.2 Women
The opening comments in this section of the Baseline Study acknowledges that some gay, lesbian, bisexual and sex or gender diverse women do not enjoy the same levels of human rights as other women in Australia. ACON welcomes this acknowledgement. However the remainder of this section fails to mention the experiences or issues facing same sex attracted women and sex or gender diverse people, and this needs to be addressed.
3.2.1 Freedom from violence.
This section of the Baseline Study fails to mention the violence faced by same sex attracted women, whether that is homophobic, transphobic or domestic violence. ACON believes this discussion of violence needs to include the specific experiences of same sex attracted women.
3.3 Children and young people
3.3.1 Right to freedom from violence
Same-sex attracted young people experience disproportionately high levels of abuse and violence, mental health issues and rates of suicide. Writing Themselves In 3 showed high levels of abuse, violence and bullying occurring, and the 80% of victims reporting that these experiences took place at school. Writing Themselves In 3 also traces the links between this homophobic abuse, violence and bullying with higher instances of self harm and suicide ideation and attempts and that these incidents were higher in rural areas.”[3]ACON calls for the Baseline Study to recognise these serious breaches of young people’s fundamental rights and for specific action to be taken to address the experience of same-sex attracted children and young people.
3.4 Older people
Older GLBT fear discrimination from aged care providers.[4] Older GLBT people are very likely to have experienced discrimination in their lives, including from institutions. Older GLBT people are more likely to expect discrimination from aged care providers who are affiliated with religious groups that have taken a strong stance against homosexuality or same sex-relationships. This has a negative impact on older GLBT people accessing and enjoying aged care services.
3.4.2 Freedom from discrimination
Older people face discrimination not just on their age but also on other characteristics. Discrimination and insensitive treatment does occur, for example, in aged care settings. There is currently no Federal protection from discrimination on the grounds of sexuality, relationship status or gender identity. Religious providers are also likely to be exempt from State and Territory discrimination laws.
3.5 Gay, Lesbian, Bisexual and sex or gender diverse people
Gay, lesbian, bisexual and transgender (GLBT) people experience significant levels of discrimination,[5] are two to three times more likely to develop depression or anxiety[6] and experience violence, harassment and abuse at much higher rates than the general population.[7] These and other areas of disadvantage indicate the importance of the issues facing the GLBT community being addressed as a specific group with particular attention in the development and implementation of the National Human Rights Action Plan and Baseline Study.
The discussion in this section of the issues faced by intersex individuals is currently inadequate. The issues are affecting intersex individuals are broader than just identity and gender expressions. ACON believes that specific and focused consultation with representative groups such as the Organisation Intersex International Australia needs to be undertaken to ensure that the application of human rights is appropriate to this vulnerable group.
3.5.1 Same-sex relationships
Marriage is a significant legal and social status for many Australians, however it is currently denied to couples in same-sex relationships. The discriminatory and exclusionary nature of the current definition of marriage is a serious concern to ACON and our communities, and the failure of the Study to recognise this is a serious omission.
Transgender individuals are in a complex situation depending on whether they have undergone gender reassignment surgery or not. Someone who has undergone gender reassignment surgery can marry their opposite sex partner, as the law recognizes their affirmed gender. For example, someone who has transitioned from male to female through surgery procedures is able to marry their male partner. However, if that transgender individual has not undergone gender reassignment surgery, even though she identifies as female, she is still considered a male and therefore cannot marry her male partner.
3.5.2 Freedom from violence
ACON welcomes the discussion of same-sex domestic violence and recommendations to ensure that support services are adequately resourced to address the specific needs of the gay, lesbian, bisexual and sex or gender diverse communities in Australia. The fact that the discussion under this heading begins and ends at domestic violence is a dangerous omission. The majority of violence experienced by gay, lesbian, bisexual and sex or gender diverse people is in schools, on our streets and in the family home. The Baseline Study should be expanded to recognise and address this.
3.7 People with Disability
ACON welcomed the Australian Government’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD). The discriminatory aspects of Australia’s migrations programs need to be brought into line with the CRPD, especially with regards to the health and disability restrictions that prevent people living with HIV from migrating to Australia and limit the acceptance of people living with HIV from accessing Australia’s humanitarian and refugee programs.
3.9.1 Right to highest attainable standard of health care
ACON strongly supports proven harm reduction measures such as the Needle and Syringe Program (NSP) and their introduction into prisons. The success of NSPs in Australia is well documented and it is estimated that between 2000 and 2009, NSPs directly prevented over 32,000 HIV infections and almost 100,000 hepatitis C infections, and saved between $1.28 billion in health costs.[8] Hepatitis C can also have enormous negative, personal impacts on the health and quality of life of individuals affected. A review of NSP undertaken by the Australian Government Department of Health and Ageing found that “there is no evidence as yet of serious unintended negative consequences of Needle and Syringe Programs in prisons.[9]”Nonetheless, prisoners continue to be denied access to this essential intervention to protect them from a serious communicable disease.
Actions or outcomes for inclusion
1.1 Australia’s international human rights commitments
ACON recommends that the Baseline Study include commitments that Australia has made to human rights in addition to the seven core United Nations human rights treaties. We also call on the Government to publicly commit to the Yogyakarta Principles so as to ensure an internationally consistent understanding of the application of existing human rights to gay, lesbian, bisexual and transgender people in Australia.
1.5.2 Human Rights Education
ACON supports broad human rights education at all levels of society. So far human rights education has often excluded the human rights of GLBT people and the human rights breaches that GLBT people are currently experiencing. A program that includes the rights GLBT people enjoy should be included in all Commonwealth human rights education programs, so that day-to-day discrimination, harassment and violence can be addressed at the community level.
ACON recommends that the Baseline Study also include a sustained program of community education and engagement in relation to the continued exemption from anti-discrimination legislation afforded to religious institutions, especially in the areas of employment and service provision. This issue was identified by the Senate Standing Committee on Legal and Constitutional Affairsas an area that should be re-examined[10] and causes significant challenges and distress for GLBT employees (as well as unmarried heterosexual women) in a wide range of publicly funded services delivered through religious institutions.
1.5.3 Consolidation of anti-discrimination legislation.
ACON calls on the Government to empower the Australian Human Rights Commission to address day-to-day discrimination an additional Commissioner with responsibilities over sexual orientation, gender identity and sex characteristics discrimination is required. Additional staffing for the Commissioner as well as for complaints handling would enable the Commission to deal with discrimination against GLBT people by providing alternative dispute resolution as well as conducting policy and advocacy activities. This model would be similar to the current arrangement for Sex Discrimination, Race Discrimination, Disability Discrimination and Age Discrimination commissioners to reduce discrimination on the grounds of sex, race, disability and age.
ACON opposes state supported human rights breaches that occur as a consequence of broad based exemptions like those in much current State and Territory anti-discrimination legislation. Religious exemptions should be narrow, minimal and temporary. We therefore support dedicated staffing to begin a process of stakeholder dialogue and community education to find acceptable solutions to this situation. This would be a constructive step forward in addressing this embarrassing and impractical challenge to the realisation of universal human rights for all Australians.
1
[1] Australian Research Centre in Sex, Health & Society, Private Lives: a report on the health and wellbeing of GLBTI Australians, (2006); L Hillier, T Jones, M Monagle et. al., Writing themselves in 3: The third national study on the sexual health and wellbeing of same sex attracted and gender questioning young people, Australian Research Centre in Sex, Health and Society, La Trobe University, (2010); NSW Gay and Lesbian Rights Lobby, The Pink Ceiling is Too Low, (2003); NSW Attorney General’s Department, You Shouldn’t Have to Hide to be Safe, (2001), Beyondblue, Feeling Queer and Blue, (2009).
[2] C Harcourt, J O’Connor, S Egger, et. al., ‘The decriminalisation of prostitution is associated with better coverage of health promotion programs for sex workers’, Australian and New Zealand Journal of Public Health, vol 35 (5), (2010).
[3]L Hillier, T Jones, M Monagle et. al., Writing themselves in 3: The third national study on the sexual health and wellbeing of same sex attracted and gender questioning young people, Australian Research Centre in Sex, Health and Society, La Trobe University, (2010)
[4]Jackson NC,Johnson MJ,Roberts R (2008) The potential impact of discrimination fears of older gays, lesbians, bisexuals and transgender individuals living in small- to moderate-sized cities on long-term health care J Homosexuality 54(3):325-39.
[5]Australian Research Centre in Sex, Health & Society, Private Lives: a report on the health and wellbeing of GLBTI Australians, (2006); L Hillier, T Jones, M Monagle et. al., Writing themselves in 3: The third national study on the sexual health and wellbeing of same sex attracted and gender questioning young people, Australian Research Centre in Sex, Health and Society, La Trobe University, (2010); NSW Gay and Lesbian Rights Lobby, The Pink Ceiling is Too Low, (2003);
[6] Australian Bureau of Statistics, National Survey of Mental Health and Wellbeing, (2007).
[7]NSW Attorney General’s Department, You Shouldn’t Have to Hide to be Safe, (2001).
[8]National Centre in HIV Epidemiological and Clinical Research (2009) Return on investment 2: Evaluating the cost‐effectiveness of needle and syringe programs in Australia, Sydney: National Centre in HIV Epidemiological and Clinical Research, University of NSW.
[9] Dolan, K. MacDonald, M., Silins, E. & Topp, L. 2005. Needle and syringe programs: A review of the evidence. Canberra: Australian Government Department of Health and Ageing.
[10]Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality, Commonwealth of Australia, (2008), p. xiv.