Anti-Discrimination Amendment (Sexual Preference) Bill
ANTI-DISCRIMINATION AMENDMENT (SEXUAL PREFERENCE) BILL
Debate resumed from 12 October.
Mr WHELAN (Ashfield - Minister for Police) [9.30]: The Government is opposed to this bill. It is an unnecessary response to an isolated incident and misleads by trying to suggest that discrimination against heterosexual persons is a problem in the
community. The object of the bill is to amended the Anti-Discrimination Act 1977, referred to hereafter as the Act, to make it unlawful to discriminate against persons on the ground of their sexual preference. The bill replaces provisions in the Act contained in part 4C dealing specifically with discrimination on the ground of homosexuality, with parallel provisions that deal with all forms of sexual preference discrimination including heterosexual, homosexual and bisexual discrimination. The bill also replaces the provisions in the Act dealing specifically with vilification of homosexual persons, with parallel provisions that will make it unlawful for a person to publicly vilify a person or group of persons on the ground of their sexual preference.
Accordingly, the proposed sexual preference provisions will apply in relation to discrimination in the areas of employment, education, the provision of goods and services, accommodation, and registered clubs in the same way as the existing provisions of the Act apply in relation to discrimination on the ground of homosexuality. The provisions of the bill are apparently intended to apply to persons who experience discrimination because they are perceived to be heterosexual or bisexual, in the same way that the provisions of part 4C of the Act apply to persons who are perceived to be homosexual. The bill appears to be an attempt to address issues arising from a case earlier this year of allegations by a group of heterosexual people who were apparently denied entry to a restaurant where a function was being held for homosexuals. It is alleged that the heterosexual persons were refused entry on the ground of their sexual preference.
At present, the provisions of the Act do not extend to complaints of discrimination on the basis of heterosexuality. Although sections 49ZF and 49ZG of the Act provide that it is unlawful to discriminate against persons on the ground that they are homosexual, or thought to be homosexual, it is not unlawful to discriminate against heterosexuals or bisexuals. The bill may appear superficially attractive because as a matter of logic it would appear anomalous that the Act presently applies only to discrimination against homosexuals, but not heterosexuals. However, to equate discrimination against heterosexual persons with the level of institutional and extensive discrimination that minority groups in the community face is wrong in principle. The implications of such a change should be subject to careful consideration before specific legislative changes are formulated.
Homosexuality was made a discrete ground of discrimination under the Act because of the overwhelming weight of evidence that homosexual people are subjected to significant and exceptional levels of discrimination. Apart from the case referred to by the honourable member for Port Macquarie, there is no significant evidence of people being subjected to discrimination on the basis of their heterosexuality. In a number of cases it has also been considered necessary for safety reasons, because of the high incidence of gay bashings being committed by groups of non-homosexual persons at gay and lesbian venues, to deny these groups entry to such venues. Coverage of heterosexuality is argued on the ground that it will promote the notion of equality for everyone in relation to their sexual preference. However anti-discrimination legislation should focus specifically on addressing the problems of clearly disadvantaged groups.
To subsume homosexuality into a wider group of sexual preference will create the impression that discrimination against homosexual persons has been eliminated and should no longer be a discrete ground under the Act. The evidence suggests that this is far from the case. Some States do provide, in their anti-discrimination and equal opportunity laws, that there shall be no discrimination on the basis of sexuality as such. However, it is more a product of political consideration than any suggestion that there is a problem to be addressed. I remind honourable members that the New South Wales Law Reform Commission is reviewing the Anti-Discrimination Act 1977. Among the issues being considered are the broadening of the new homosexual vilification provisions and the introduction of a broad ground of sexuality.
If the commission finds evidence to suggest that there is a problem in this area, it will be addressed by the Government. However, the Government is not aware of any such evidence to date and on that basis must call into question the motivation behind the proposed introduction of the bill. Recently the Government has been considering a proposal to include transgender status as a ground of discrimination under the Act. The Government considered it appropriate to introduce such a proposal prior to the final report of the commission for two main reasons. Firstly, transgender status is a question of gender identity, not sexual preference. Secondly, there is an overwhelming weight of evidence to show that transgender persons are subject to high levels of discrimination, including exceptional levels of verbal and physical abuse, and violence.
However, no such argument can be advanced in favour of making sexual preference a ground for discrimination. Accordingly, it is considered appropriate to delay any decision to broaden the ground of complaint on the basis of homosexuality until the final report of the commission is to hand. This course of action would enable these issues to be examined in conjunction with the Government's consideration of the existing homosexual discrimination and vilification provisions in the context of a broader strategy aimed at protecting the whole community. The Government opposes the bill.
Mr TURNER (Myall Lakes) [9.35]: I support my colleague the shadow minister for consumer affairs. This matter is not only about discrimination but also about fairness. All people should be
treated fairly under the law. This is a clear case of certain people enjoying certain privileges that others do not enjoy. Without quoting figures, because I do not know them, I would suggest that there are far more heterosexual people in our community than there are homosexual people. The Act should apply to all people evenly and fairly. The Anti-Discrimination Board is of the same opinion. Unfortunately, I was not in the Chamber to hear the entire contribution made by the Minister for Police. I do not know whether he alluded to the report of the New South Wales Anti-Discrimination Board to the New South Wales Law Reform Commission in its review of the Anti-Discrimination Act 1977 entitled "Balancing the Act".
The report reveals that the Anti-Discrimination Board is of the opinion that the Act should be expanded to cover discrimination against heterosexuals. Some time ago I spoke to the commissioner, Mr Puplick, about this matter. As commissioner and the person in charge of the Anti-Discrimination Act, he was of the opinion that the Act should be expanded to cover discrimination against heterosexuals, but the government of the day does not support the commissioner in his view. The commissioner is by far the best judge to determine whether the Act should be expanded. An unhealthy conflict arises when the commissioner is of the view that the Act should be expanded but the Government is of the view that it should not be expanded. Again I stress that it is a matter of fairness. At page 98 the report states:
I heard the Minister for Police say that this legislation is a knee-jerk reaction, that there were only isolated incidents of discrimination, and that the legislation did not warrant the changes. As I said, the report was made by the Anti-Discrimination Board, a respected board, to a very respected organisation, the Law Reform Commission, and it states quite clearly:
It is anomalous that a homosexual can complain about being treated unfairly by a heterosexual but a heterosexual cannot complain about being treated unfairly by a homosexual. Because the notion of equal treatment is the cornerstone of discrimination law it is logical that everyone should be protected. This is in keeping with the philosophy of human rights being important for everyone and the notion that even the majority can be in a minority position at times.
This bill is all about fairness. It does not matter if there is only one instance of discrimination: the person involved should have the same rights as other persons have for redress at law. At pages 98 and 99 the report states:
This is in keeping with the philosophy of human rights being important for everyone and the notion that even the majority can be in a minority position at times.
The Minister for Police has said that the Government does not support the legislation, that it is unnecessary and that its introduction results from isolated instances of discrimination. The considered view of the Anti-Discrimination Commissioner and the paper of the Anti-Discrimination Board, "Balancing the Act", is that there may be a community backlash against gay men and lesbians, with anger demonstrated against those people, arising out of frustration within the heterosexual community that heterosexuals are not given the same rights that homosexuals enjoy. This anger and frustration could lead to violence. The Minister for Police has been told by the Anti-Discrimination Board that there will be real problems if the need to redress discrimination against heterosexuals is not recognised. The bill was introduced to avoid such a backlash.
One incident that came to my attention, among others, concerned heterosexuals who were refused entry to a nightclub that was apparently the domain of homosexuals. Anger and a feeling of discrimination arose from that incident, feelings prophesied in the report "Balancing the Act". This bill is about fairness and equity. All people should be protected under the law. It is unsatisfactory when one section of the community enjoys better redress under the law than another section of the community. The exclusion of one group to the benefit of another can only add to angst, anger and frustration. The bill seeks to achieve a level playing field. It should not matter whether one is heterosexual, homosexual, bisexual, transsexual, black, white or yellow. All people who are discriminated against should have the right of redress. The bill seeks to achieve that, and that is a positive step.
The bill should be supported by both sides of the House. It is disturbing that the Government will not support the entitlement of average people - in this instance the majority of people - to the same rights enjoyed by a minority. It is anomalous that the Anti-Discrimination Board, this State's foremost discrimination organisation, produced a paper calling unequivocally for the inclusion of discrimination against heterosexuals in the law yet the Government chose not to support such inclusion. This bill is not landmark legislation; similar legislation exists in South Australia, the Australian Capital Territory and the Northern Territory. I support this bill. It is important and, more than anything, it is fair. I am disturbed that the Government will not support the bill and is repudiating the advice of the Anti-Discrimination Board.
Mr FRASER (Coffs Harbour) [9.45]: I support the bill. A few basic principles involved in the bill should be recognised by all parliaments. This bill concerns a democratic right. Parliaments, both State and Federal, have in the past protected the rights of minorities, and correctly so. But it would seem that minority groups are now discriminating against the majority. Such
discrimination was demonstrated clearly late last year when a demonstration outside Parliament House of approximately 600 of the gay community, who had whistles and made a lot of noise, was the following day accorded front-page attention by both the Sydney Morning Herald and the Daily Telegraph Mirror, yet not long before that a demonstration by 3,500 people about wilderness issues - people from right across the community; four-wheel drivers, farmers, fishermen and others who wanted their rights protected -
Mr Jeffery: They might have got two lines.
Mr FRASER: The honourable member for Oxley is right; that demonstration of a majority group was reported at about page 7, and those people were lucky to get two lines. In this State minority groups get more media attention and are so sure of their position as political lobbyists that they are able to turn the debate around. The Sydney Gay and Lesbian Mardi Gras is something that I find absolutely offensive -
Mr McManus: You cannot discriminate. You brought in anti-discrimination laws yet you say something like that.
Mr FRASER: The honourable member for Bulli may well laugh.
Mr McManus: Make up your mind. Which side are you on?
Mr FRASER: Personally, I find the Mardi Gras offensive, but I will defend the right of the gay community to demonstrate. At the same time, that community will not allow heterosexuals to attend the party it holds afterwards at the showground which the Premier is about to sell off to Fox studios. That is reverse discrimination. It is about time that people whom I would regard as quite normal, the average Australians, are given the opportunity not to be discriminated against by minority groups. I ask the honourable member for Bulli whether he will support this legislation, which supports the majority of people in his electorate. I wonder how far he would get if he went back to his electorate and told his constituents that he intended to support the rights of minority groups above those of the majority. His constituents would not be too impressed.
The Government has indicated clearly that it will not support the legislation. Possibly that has something to do with the fact that the Government has the minority support of the people of this State - at the election it got only 48 per cent of the vote. By not supporting this legislation the Government will allow minorities to discriminate against majorities, against the normal person. This bill seeks to even up the balance sheet. It brings the debate back to commonsense and practicality. The bill supports the right of minority groups to have their say, and their Mardi Gras, and supports the right of others to compete on a level playing field in employment, recreation and so on.
I bring to the attention of the House the example provided by the honourable member for Myall Lakes of a nightclub that denied entry to heterosexual people. Heterosexuals were not allowed to go into that club to enjoy a drink because a particular minority group felt that it was above everyone else. It is high time the Parliament publicly declared support for everyone's rights. I commend the honourable member for Port Macquarie for introducing the bill. I am disappointed that the Government will not support the rights of the majority. I understand the reason - the Government was elected on minority votes - but nevertheless its approach is shameful. I hope members wholeheartedly support the bill.
Ms MACHIN (Port Macquarie) [9.51], in reply: I thank my colleagues, the honourable member for Coffs Harbour and the honourable member for Myall Lakes, and also the Minister for Police, for their contributions to the debate. I was aware that the Government had decided to oppose the bill. I am not surprised but nevertheless I am somewhat disappointed. The closing remarks by the honourable member for Coffs Harbour summed up the bill as one that the majority in the community would think not unreasonable. The Minister for Police said that the bill is merely a response to isolated incidents. It is not: a couple of incidents have highlighted more widespread behaviour that we all know is occurring.
Straight people find that gays in predominantly homosexual areas are becoming somewhat precious and exclusive by using smear or whispering campaigns, calling heterosexuals breeders. I as a woman would find it offensive to be treated that way, as many others do. These incidents are not isolated, but that is not the point. The majority of gay people do not get bashed up. It could be argued that the serious vilification on which the Act is based occurs in isolated incidents. I agree that one incident of vilification is one too many, but not everyone is being vilified. The argument by the Minister for Police is not valid, that the restaurant incident and others affecting heterosexuals are isolated. The victims of those incidents must think it unfair that gays have recourse to the protection of the Act but that straight people cannot take any action whatsoever.
The honourable member for Myall Lakes said the intent of the bill is to give everyone protection under the Act. As I said in my second reading speech, the Act will be weakened, and support for it will cease, when the mainstream community realises that its provisions protect only a small select section of the community. In a democracy, laws offering protection against discrimination are vital; it is equally important that the community has faith in and supports such laws. The purpose of the bill is not to weaken the Act or the protection it affords homosexuals who may be the targets of vilification. Vilification happens, but protection against it should be extended to all. The homosexual community and gay press argue that specific anti-vilification laws are necessary because homosexuals are unfairly and systematically targeted. My bill does not water down the protection the homosexual population enjoys; it merely seeks to extend those laws to all. The homosexual lobby is articulate, powerful, intelligent, well-funded and effective, and not by any means an ineffective or weak group in society.
The Minister for Police spoke about transgender anti-discrimination legislation. I am aware that the Government, the Anti-Discrimination Board and the honourable member for Bligh are examining those issues. That is a different issue. The bill we are debating covers many complex issues, involving key issues of employment, club membership, and access to universities and industrial and professional associations. The law should apply equally to everyone. The Act is specific in its application to homosexuals. We want the law to apply regardless of sexual preference - the very phrase I use in my bill. I cannot see why that is a problem. Such a provision would not water down the current legislation or the protection offered to those covered by it.
The bill addresses the section of the Act dealing with serious vilification. Heterosexuals have been vilified. But this is a matter of principle. If, when walking up Oxford Street, I am seriously vilified by a group of gay people on the grounds that I am not gay, I just have to cop it. That experience would be most unpleasant for me or any other person, but as the law stands I have to grin and bear it. The reverse applies to a gay person who is vilified by a group of heterosexuals: the gay person can prosecute and take action under the Act. The average person in the community is asking why it does not apply to everyone. Why should not I, if I am seriously vilified, have the protection afforded to another section of the community?
Mr Amery: Because you are not being discriminated against.
Ms MACHIN: The Minister does not get the point; he is so dumb! Let me say it again: if a heterosexual person walked up Oxford Street and was seriously vilified - behaviour which is defined in the Act - that person could do nothing about it. Does the Minister think that is fair?
Mr McManus: What does vilification mean - talking to someone, shouting to someone?
Ms MACHIN: No, it does not. It has to be a public act, and a serious one, not merely the telling of a joke. If members opposite do not know what serious vilification is, they should consult their Attorney General, read the Act, or refer to Hansard of a couple of years ago, where the full definition appears. Government members seem happy to accept that if their constituents are taunted in a gay area and are seriously publicly vilified, they should have no protection because they happen to be straight, but if their constituents are gay they are able to take action at law. I do not think that is fair, nor do many others in the community. We are not trying to remove protection from the gay community. Why cannot a straight person who is seriously vilified have access to the protection of the law in the same way gays do?
Mr McManus: How many straight people have been killed in or near Oxford Street? 26 gays have been killed already!
Ms MACHIN: We are not talking about murder but about vilification. I will bring the dictionary around to the honourable member. It starts with v - if he finds the word he might be able to work it out. The Government's position is most interesting. The Opposition will publicise in Labor electorates that Government members think the average citizen is not entitled to protection from that kind of public abuse. The Opposition intention will make clear to constituents in the Bathurst, Cessnock, Broken Hill, Kiama and Londonderry electorates that the Government is happy not to extend to most people the protection available to some under the Anti-Discrimination Act. The Opposition will be pleased to convey to constituents in those electorates how Government members representing them voted down a proposal to extend protection under the Anti-Discrimination Act to all regardless of sexual preference.
The bill is not unfair and does not remove protection from the homosexual community. The bill applies the law evenly to everyone. Vilification happens, and that is why the Anti-Discrimination Act is needed. Why should heterosexuals not be afforded the protection available under that Act to homosexuals? Government members are amused, but the Opposition will be interested in feedback from all Labor electorates, not just the electorates I have named. I am disappointed in but not surprised at the Government's position. Many Government members will be haunted by their decision. The mainstream community feels that some laws have gone too far in catering for one section of the community. It does not want to remove the privileges or protection that that section of the community enjoys; it merely wants the same protection when it is required. Unfortunately, the Government is not prepared to do that.
Question - That this bill be now read a second time - put.
The House divided.
The Board's experience indicates that many people perceive that the failure to protect heterosexuals and bisexuals is unfair. Heterosexuals and bisexuals often object when they realise that it is unlawful for them to discriminate against people who are gay or lesbian but the reverse is not true. Such an anomaly can diminish community support for discrimination laws, and provoke a community backlash against gay men and lesbians which reinforces the existing homophobia in the community.
Mr Armstrong Mr O'Doherty
Mr Beck Mr O'Farrell
Mr Causley Mr D. L. Page
Mr Chappell Mr Peacocke
Mrs Chikarovski Mr Phillips
Mr Cochran Mr Photios
Mr Collins Mr Richardson
Mr Cruickshank Mr Rixon
Mr Debnam Mr Rozzoli
Mr Downy Mr Schipp
Mr Ellis Mrs Skinner
Mr Fahey Mr Slack-Smith
Ms Ficarra Mr Small
Mr Fraser Mr Smith
Mr Glachan Mr Souris
Mr Hartcher Mr Tink
Mr Hazzard Mr Turner
Mr Humpherson Mr West
Dr Kernohan Mr Windsor
Mr Kinross Mr Zammit
Mr Longley Tellers,
Ms Machin Mr Jeffery
Mr Merton Mr Kerr
Ms Allan Mr Markham
Mr Amery Mr Martin
Mr Anderson Ms Meagher
Ms Andrews Mr Mills
Mr Aquilina Mr Moss
Mrs Beamer Mr Nagle
Mr Clough Mr Neilly
Mr Crittenden Ms Nori
Mr Debus Mr E. T. Page
Mr Face Mr Price
Mr Gaudry Dr Refshauge
Mr Gibson Mr Rogan
Mrs Grusovin Mr Rumble
Ms Hall Mr Scully
Mr Harrison Mr Shedden
Ms Harrison Mr Stewart
Mr Hunter Mr Sullivan
Mr Iemma Mr Tripodi
Mr Knight Mr Watkins
Mr Knowles Mr Whelan
Mr Langton Mr Yeadon
Mrs Lo Po' Tellers,
Mr Lynch Mr Beckroge
Mr McManus Mr Thompson
Mr Blackmore Mr Carr
Mr Schultz Mr McBride
Question so resolved in the negative.