The Attorney-General’s Department has released the Exposure Draft Human Rights and Anti-Discrimination Bill 2012, a Bill aimed at consolidating anti-discrimination laws into one piece of Federal legislation (Attorney-General’s Department 2012). The Bill is currently being considered by the Senate Standing Committees on Legal and Constitutional Affairs.

While there are a number of positive aspects of the Bill, YACVic particularly welcomes the Bill’s introduction of federal protection against discrimination on the basis of sexual orientation and gender identity.

Discrimination on the basis of age, race, sex and disability is already protected against by federal laws (i.e. Racial Discrimination Act (1975), Sex Discrimination Act (1984), Disability Discrimination Act (1992), and Age Discrimination Act (2004)). However, it has been state and territory anti-discrimination laws that have provided protection against discrimination on the basis of sexual orientation and/or gender identity. A key concern has been the fact that these state and territory laws have differed in terms of how terms are defined, what is protected against, and what exemptions are included (Chapman 2010). This one of the main reasons that YACVic and other organisations and individuals have asserted that federal legislation is important in their area – i.e. to ensure that people across Australia are protected from such discrimination in a uniform way (YACVic 2010).

Australian Human Rights Commission’s 2010 Consultation and YACVic’s submission

In 2010, the Australian Human Rights Commission conducted a consultation process on this very topic, asking whether there was a need for the introduction of federal protections against discrimination on the basis of sexual orientation and sex and/or gender identity (Australian Human Rights Commission 2010).

In developing our response to this consultation, YACVic conducted an online survey which was completed by 86 young people. The survey asked a range of questions, including:

  1. whether they had ever experienced unfair treatment, discrimination or harassment on the basis of their sexual orientation or gender identity,
  2. whether they had made a complaint about this treatment,
  3. whether they thought federal laws were necessary and what these laws should contain, and
  4. how young people should be able to access information about their legal rights (YACVic 2010, 4-5 and 23-24).

Of those surveyed, 41% of young people were between 18 and 21 years, 37% were between 14 and 17 years and 22% were between 22 and 25 years (YACVic 2010, 5). In describing their sexual orientation, 45% identified as ‘gay’, 31% as ‘same sex attracted’, 22% as ‘queer’, 21% as ‘heterosexual (straight)’, 18% as ‘homosexual’, 15% as ‘bi sexual’, 12% as ‘lesbian’ and five selected ‘other’ (YACVic 2010, 5).

In describing their gender identity, 58% said ‘male,’ 33% said ‘female,’ 6% said ‘queer,’ 3% said ‘transgender (female to male)’, and 1% each selected ‘transgender (male to female),’ ‘gender questioning,’ and ‘pansexual’ (YACVic 2010, 5). Three young people selected ‘other’ (YACVic 2010, 5).

The following discussion provides a snapshot of the survey findings and YACVic’s response to the Australian Human Rights Commission’s 2010 consultation:

Unfair treatment, discrimination or harassment

In the survey, the majority of participants indicated that they had experienced unfair treatment or discrimination because of their sexual orientation or gender identity (YACVic 2010, 10). 51% reported having experienced such treatment ‘more than three times’ and 12% selected ‘at least once’ (YACVic 2010, 10). 37% said they had not experienced this treatment (YACVic 2010, 10). Participants reported having experienced unfair treatment or discrimination while at school, at work, and when looking for accommodation (YACVic 2010, 10-11).

The majority of young people also reported having experienced physical or verbal harassment due to their sexual orientation. 34% selected ‘more than three times, 20% selected ‘once’, another 20% selected ‘I am often abused because of my sexual orientation and gender identity, and 26% indicated they had not experienced either type of harassment (YACVic 2010, 12-13).

Should federal legislation be introduced?

When asked whether it was important that federal laws be introduced to protect people from being treated unfairly or harassed because of their sexual orientation or gender identity, 99 per cent of the participants said ‘yes’ and only 1 per cent said ‘no’ (YACVic 2010, 7). While not all participants distinguished between a need for federal protections and the existing state and territory protections, a number of participants emphasised the importance of laws protecting against such discrimination, noting the levels of discrimination and harassment of people due to their sexual orientation or gender identity that continues to take place in Australia (YACVic 2010, 8).

According to one participant, “There are still people in society who treat people differently and unfairly because of their sexual orientation. This is not fair to the people who are trying to work out who they are [;] they need to be embraced and support[ed] by society as a whole” (YACVic 2010, 8). Another reason provided by young people for the introduction of federal protections is their belief that federal laws may result in cultural change in Australia. According to one participant, “federal laws, I believe, could be helpful in changing the culture” and “alter the culture so that homophobia is treated the same as racism or sexual harassment” (YACVic 2010, 8). Other young people discussed the importance of uniformity in the legislation in this area. For example, one participant said that federal law will ‘set a national standard’ (YACVic 2010, 7). In addition, a number of young people discussed the issue in terms of human rights (YACVic 2010, 8). According to one participant, ‘equality is a given right of a human being regardless of their orientation or identity’ (YACVic 2010, 8).

YACVic’s recommendations

Ultimately, YACVic made a number of recommendations, including that:

  • Federal protections on the basis of sexual orientation and gender identity should be introduced.
  • A wide-ranging education campaign should accompany federal legislation. This campaign would help inform all Australians about their legal rights and the process for making complaints if they experience such discrimination.
    • Part of this education campaign should specifically discuss young people’s rights and the options they have if they experience discrimination on the basis of their sexual orientation or gender identity while in school, at work, or in public spaces in the community.
    • All information should be accessible and available in a number of languages.

Find out more information about the new draft legislation. 

Read YACVic’s full response to the Australian Human Rights Commission.