The Affiliation of Australian Women’s Action Alliances (AAWAA) is surprised and disappointed at the Australian Human Rights Commission’s preliminary view not to grant a temporary exemption to the Sex Discrimination Act 1984 (SDA) that would allow lesbians to meet on the basis of their sex and their sexual orientation. We are particularly puzzled as the AHRC has acknowledged that lesbians in Australia have faced structural and entrenched discrimination, both historically and in the present day. We believe the commission’s preliminary view is mistaken in law and principle for reasons we set out below.
1. The commission’s powers and the scope and purpose of the SDA
In essence, the commission must assess whether, or to what extent, it has the responsibility and the legal authority to qualify rights set out in the Sex Discrimination Act, carefully weighing the interests of all interested parties. Regrettably, the preliminary view fails to address these matters systematically or comprehensively, hindering their proper consideration and, we contend, denying the applicants procedural fairness. A full discussion on this point can be read in our total submission, below.
2. What rights are we talking about?
It is our view – and we believe it should also be evident to the commission – that the LAG’s (Lesbian Action Group’s) application is, at its core, a request for the protection of the human rights set out in international human rights instruments that Australia is a signatory to, notably the freedoms set to assembly, association, and expression, including the right to hold and communicate opinions without interference, as set out in the International Covenant of Civil and Political Rights (ICCPR).
While the LAG does not itself refer specifically to these civil and political rights, the fact that these rights are at issue is clear in the substance and language of its application, including that the LAG seeks the exemption in order to “meet freely, and without being abused for wanting to do so … to organise and attend workshops on a plethora of pertinent topics … to exchange views and opinions … without fear of being hauled before VCAT … and being told our exclusive Lesbian born female events are illegal … and to meet publicly without fear of litigation.”
We would respectfully submit that applicants for exemption under the Act or for any other engagement with the commission should not need to cite the specific legal instruments and articles within statutes, as a human rights lawyer might, in order to seek to have their human right upheld. Indeed, as the commission itself has recently – and admirably – advocated, human rights are “for everyone, anywhere and at all times.” Again, read our full submission, below for further detail.
3. ‘Qualifying’ rights: the commission’s powers and responsibilities
In addition to setting out what rights the LAG’s application engages – or may be assessed by a ‘reasonable and well-informed person’ to engage – we also respectfully request that the commission set out its assessment of its legal prerogatives and responsibilities in relation to these rights. We submit that doing so is essential to procedural fairness in this application as the commission’s prerogatives and responsibilities in relation to the ‘objects of the SDA’ depend on the precise nature of the right at issue. See the full submission, below, for more.
4. Balancing relevant factors
In light of the foregoing, we draw attention to paragraph 7.41 and ask that the commission make clear the legal authority for its view that it is “not appropriate and reasonable to make distinctions between women based on their cisgender or transgender experience, or among same-sex attracted women based on the exclusivity of their same-sex attraction at an event of this kind.”
Though the commission does not say so, we assume this is a reference to sections 5A, 5B and 5C of the SDA, which incorporated parliament’s 2013 amendments to the Act to introduce new prohibitions on discrimination on the grounds of sexual orientation, gender identity, and intersex status.
But the commission would also know that the 2013 amendments did not limit the fundamental rights set out in section 3a of the SDA, including the ICCPR rights to freedom of opinion, assembly, and association.
For our part, we submit that it is neither reasonable nor proportionate for the commission (as it does implicitly in paragraph 7.41) to impede the LAG exercising its civil and political rights in order to ensure non-discrimination in the matter of goods, services, and facilities, particularly when numerous alternative avenues are available for accessing these goods and services. We also submit that the effect of denying an exemption would be to deprive the applicant an opportunity to express and exchange opinions publicly. By contrast the effect of granting an exemption to the LAG would not be to deprive same-sex attracted women and others with different experiences and opinions the opportunity to exercise their civil and political rights through attending the numerous public events that other communities host. See the full submission for further argument.
5. A way forward: Special measures and other considerations
If, as we believe is reasonable, the commission recognises that the LAG’s application engages civil and political rights – rights that the commission has a legal obligation to uphold and a positive duty to facilitate – then we would urge the commission to reconsider the mechanisms the SDA provides to address potential challenges under sections 5A, 5B and 5C.
We commend the commission for its consideration of a possible permanent exemption under section 39 also noting its view (paragraph 6.5) that this exemption does not apply in these circumstances, where the provision of “benefits, facilities or services” is proposed to extend to persons beyond members of the Lesbian Action Group. We would respectfully contend, however, that the LAG has a right both to advertise for membership and for its events in line with its constitutional rights to freedom of political communication. We would welcome the commission’s views of section 32 (Charities) were the LAG to register under the Australian Charities and Not For Profits Commission Act 2012 noting the LAG’s purpose in promoting and protecting human rights.
6. Special measures
More urgently, we implore the commission – including as a matter of procedural fairness in this matter – to set out its views on making use of section 7D of the Act (special measures) to ensure that the LAG’s rights are upheld. Special measures are intended to achieve equality (for example, between men and women (7Da) and between people who have different sexual orientations (7Db)) and do not constitute unlawful discrimination. We submit that the use of 7D in relation to the LAG’s application would allow the LAG to enjoy its civil and political rights to opinion, expression, and assembly.
7. Terms and conditions
We would also urge the commission to explore the range of mechanisms that are open to it to address concerns raised in paragraphs 7.43 (privacy) and 7.44–7.45 (scope), including by imposing terms and conditions on any exemption it grants in line with its section 44 powers. We recommend, for instance, that the commission consider a similar approach to that the Victorian Civil and Administrative Tribunal employed to address privacy concerns when granting a temporary exemption to a Melbourne hotel, allowing it to operate a venue specifically for gay men. In this regard, we submit that the risk of individuals thwarting or attempting to thwart an exemption should not serve as a reason not to grant an exemption.
Similarly to alleviate the burden on itself and all concerned parties, we recommend the commission clearly articulate its terms and conditions, along with its purposes and principles, and at the same time reserve an express right to revert in instances where conditions are not adhered to.
We also respectfully submit that the AHRC has a positive duty to engage and educate those who may object to the LAG’s events, with the aim of fostering an understanding of and respect for the rights of these female-born lesbians to meet and exchange opinions free from harassment. We note that the legislation establishing the commission sets out the commission’s responsibilities to perform its functions with regard to relevant international instruments – notably the ICCPR, which the Australian Human Rights Commission Act (1986) incorporates – a responsibility that extends to positive duties.
Conclusion
AAWAA keenly anticipates a revised commission view that rectifies the omissions and deficiencies in its preliminary view, particularly concerning the analysis of the SDA’s objects and their correlation with the rights implicated by the LAG’s application. A clarification of the legal foundation underpinning the commission’s reasoning would also benefit procedural fairness for all parties.
While we respect the commission’s authority to adjudicate on this matter, we firmly believe that a better-researched and reasoned consideration of all relevant factors will support the grant of this exemption.
Affiliation of Australian Women's Action Alliances 