Anti-Discrimination (Homosexual Vilification) Amendment Bill
| About this Item |
Speakers | Moore Ms Clover |
Business | Bill, First Reading, Second Reading |
ANTI-DISCRIMINATION (HOMOSEXUAL VILIFICATION) AMENDMENT BILL
Bill introduced and read a first time.
Second Reading
Ms MOORE (Bligh) [9.5]: I move:
That this bill be now read a second time.
In 1989 the House gave bipartisan support to legislation to outlaw racial vilification. At that time the community had been experiencing widespread and violent racially motivated attacks. Those attacks are richly documented in the debates surrounding that bill. In presenting the legislation, the former Attorney General, John Dowd, affirmed that each person has a right to a dignified and peaceful existence, free from racist harassment and vilification. He stated, "This bill is a clear statement by the Government that racist vilification has no place in this community."
Four years later, I call upon the House to act to protect another group within our community and to stop hate crimes against lesbians and gay men. I ask the House to make a statement that lesbians and gay men have a right to live free of violence and vicious, homophobic abuse. I present this bill to the House at a time of extreme levels of violence against lesbians and gay men. In the past 14 months, the lesbian and gay anti-violence project has received 156 reports of assaults on lesbians and gay men. In these incidents, 230 lesbians and gay men were assaulted, and 38 per cent suffered a serious physical injury such as concussion or broken limbs.
In 1991 police received reports of 136 homosexual assaults. In that year, 69 per cent of assaults in Surry Hills were gay related. Extensive media coverage was given to the murder of a gay man, Richard Johnson, in January 1990. He was lured to a toilet block in Alexandria Park by eight teenage boys, then brutally murdered. This was not an isolated event. In December 1988, William Emanuel Allen had been bashed and kicked outside the same toilet block. The police lesbian and gay group liaison officer stated last year that 13 homosexual men had been murdered by gay-bashers in the past four years.
Mr SPEAKER: Order! I call the honourable member for Monaro to order.
Ms MOORE: Statistics do not always convey the absolute horror of these assaults. I give the House some descriptions of the assaults reported to the anti-violence project and to the "Off Our Backs" report. A middle-aged man was badly beaten in King Street, Newtown. Four skinheads yelling, "You're dead, faggot" tried to cut off his ear and stabbed him in the neck. In another case, five men wielding a broken bottle attacked a 23-year-old lesbian on the street outside a lesbian venue. The assailants stated that the right man would make her straight. The survivor sustained serious lacerations but did not contact the police or medical services, fearing further victimisation.
In another example, a 27-year-old male was walking along Oxford Street when four youths attacked him, punching him to the ground and kicking him, while yelling, "Filthy fucking faggot". In addition to these assaults, there is the common experience of ongoing threats and harassment. The "Off Our Backs" report on anti-lesbian violence found that about one-third of lesbians responding to the survey were subjected to ongoing harassment, most commonly at home or work. There are also numerous examples of high school students, abused and assaulted by other students because they are lesbian or gay. In March 1990, three boys left their inner city school during their higher school certificate studies because of harassment. In describing their experience, the Sydney Morning Herald reported:
Over a number of weeks, the boys were subjected to death threats, verbally abused, had anti-homosexual messages left on blackboards and were "shadowed and stalked" when they left school in the afternoons.
The "Streetwatch" report considered who was perpetrating these acts of violence and came to some disturbing conclusions. For example, lesbian and gay bashings are committed largely by males between the
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ages of 16 and 25; there is usually more than one attacker, and often a gang of attackers; this crime is hate based; and the violence is often accompanied by homophobic abuse.
Mr SPEAKER: Order! I call the honourable member for Monaro to order for the second time.
Ms MOORE: The New South Wales Anti-Discrimination Board's 1982 report "Discrimination and Homosexuality" investigated the reasons why gay bashings occurred. The report stated:
After much discussion, it was generally accepted within the Committee that this was a problem with its roots in the way in which Australian society views homosexuality and therefore gays and lesbians . . .While the fact that violence is a crime and is not acceptable is generally understood by most people, gay bashing is often not perceived in the same way. It is as though by hiding the existence of homosexuality and silencing informed discussion about it, we've allowed young people the freedom to believe that violence against gay men and lesbians is condoned. Gays are considered acceptable targets. Certainly, the police could verify that many youths arrested for gay bashings have been genuinely surprised to find that police do not condone their activities.
It cannot be stated any more clearly than this. Public acts which incite hatred of lesbians and gay men feed into the violence against lesbian and gay men. Legislation against homosexual vilification was recommended by the Anti-Discrimination Board's report of the inquiry into HIV and AIDS related discrimination. I welcomed the Premier's statement last week of support for these recommendations. I welcome the positive response by the Attorney General in setting up the committee to oversee the implementation of these recommendations. This legislation was also recommended by the "Streetwatch" report and the "Off Our Backs" report into violence against lesbians and gay men - a report which was launched by the former Minister for Police.
The Anti-Discrimination Board's report on HIV and AIDS related discrimination also recommended the addition of transsexuality to the list of grounds for an action under the Anti-Discrimination Act. I would like to express my support for this proposal and for anti-vilification legislation for the transgender community. I should like to deal with the misconceptions and the concerns that some people have expressed about this legislation. They fear that the legislation would prevent the expression of moral views and would stifle debate. Let me make it perfectly clear that this is neither the intention nor the effect of the bill.
The bill will not make it illegal for people to talk about homosexuality. It will not prevent people from stating that they disagree with or disapprove of lesbian or gay lifestyles. The bill will not affect people who state their belief that homosexuality is a sin or who quote from the Bible to support their argument. Some public acts will be expressly protected, and I will discuss these later. The bill will stop acts that incite hatred towards or serious contempt for lesbians and gay men, either as a group or as individuals.
The legislation has crime penalties for acts which threaten violence or which incite others to threaten violence against lesbians and gay men, because they are lesbian or gay. These proposed sections are strongly worded: to incite hatred, to incite serious contempt, to threaten harm. They are not intended to catch every homophobic comment, which I am sure comes as a great relief to the honourable member for Monaro and, of course, to the honourable member for Coffs Harbour, who is not sitting next to him but near him.
The legislation is aimed at bumper stickers with slogans which read "Stop AIDS: Shoot Poofters". These were distributed by a religious organisation through a North Coast petrol station in August 1990. The legislation aims to stop people such as Mr Hetherington from Bega who advertised in January this year for 40 "decent men" to help him run gay men and lesbians out of town, for which he offered to pay them $100 each. It is barely believable that we are in 1993. He was broadcast on local radio claiming:
Homosexual people play a major role in the spread of that sickness or disease or whatever you call it. All's fair in love and war . . . I'm declaring war on them.
The legislation is intended to make people think twice before saying such things which feed into the violence against lesbians and gay men. I am speaking of comments such as that made by the Anglican chaplain of the Launceston General Hospital, who in October 1990 is reported in the Launceston Examiner as saying that people should not be afraid to be called gay-bashers. The Anti-Discrimination Board commented in its report on racial violence that failure to take some action against individuals who incite racial hatred creates an environment where people think it might be acceptable. That principle applies equally to inciting hatred against lesbians and gay men.
The legislation seeks to change attitudes and will do this by emphasising conciliation rather than court action as the means of resolving complaints. The process of conciliation is an effective means of addressing ignorance and homophobia. The emphasis is on education rather than external judgment. The experience of racial vilification is evidence that conciliation is an effective resolution process. Where a person complaining of racial vilification is not satisfied by the resolution offered by the person who performed the act of vilification, the complainant may seek a hearing before the Equal Opportunities Tribunal. No actions have been brought before the Equal Opportunities Tribunal, which means that all complaints were resolved in conciliation. Similar provisions are found in the bill for requesting a hearing before the tribunal.
I would like to assure those concerned about freedom of expression that the racial vilification legislation on which this bill is modelled was drafted to be consistent with the freedom of expression provisions of the International Covenant on Civil and Political Rights. Paragraph 3(a) of article 19 of that covenant provides for restrictions on freedom of expression to the extent where these are necessary "for the respect of the rights or reputation of others". Homosexual vilification clearly falls within this category of acceptable restriction. Article 17 of the
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covenant also provides authority for this legislation and states in part:
No-one shall be subjected to . . . undue attacks on his reputation.
Everyone has the right to the protection of the law against such attacks.
Honourable members may not be aware that vilification provisions have applied to commercial radio since 1st February, 1986, when the Australian Broadcasting Tribunal radio program standard 3 commenced operation. This standard states:
A licensee may not transmit a program which:
(a) is likely to incite or perpetuate hatred against; or
(b) gratuitously vilifies;
any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, religion or physical or mental disability.
In the seven years of its operation, there has been no discernible stifling of views either by radio commentators or callers to talkback radio. As far as I am aware, there has been only one sexual preference complaint to the Australian Broadcasting Tribunal under this standard. This related to the John Pearce program of 15th January, 1985, broadcast on 2GB. This discussion included suggestions by listeners that gay men should be gassed. Pearce suggested that police stationed at Darlinghurst should assault homosexuals, and there were a number of seriously offensive and gratuitous insults. In late 1987 the Australian Broadcasting Tribunal formed a preliminary view that this program may have incited or perpetuated hatred against a group on the basis of sexual preference.
This legislation is modelled on the provisions of the racial vilification amendments of 1989. Proposed section 49ZS of the bill will repeat the definition of public act contained in the racial vilification amendment. Public acts include spoken and written communications to the public, actions and gestures observable by the public, the wearing or displaying of signs and emblems, and the distribution of matter to the public with knowledge that the matter vilifies a person or group on the ground of the homosexuality of the person or members of the group. It does not include private communication or other conduct in private.
Proposed section 49ZT will make it unlawful for a person to vilify homosexuals. This is defined as inciting hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of homosexuality of a person or members of the group. The proposed section provides protection for fair reporting of acts of vilification of homosexuals, the communication or publication of matter subject to the defence of absolute privilege in proceedings for defamation, and a public act done reasonably and in good faith and for a purpose which is in the public interest. The proposed section will enable complaints to be made to the president of the Anti-Discrimination Board and to be dealt with first by conciliation and, failing a satisfactory resolution of the complaint being reached, by an action before the Equal Opportunities Tribunal. The tribunal will be able to order that an apology be made and will be empowered to make an order for damages of no more than $40,000.
Proposed section 49ZTA will provide that vilification of homosexual persons involving threatened violence or incitement to violence will be a criminal offence punishable by a maximum penalty of six months imprisonment or a fine of $1,000, or both. Corporations will be subject to fines of up to $10,000. A person may be prosecuted only with the consent of the Attorney General. Schedule 1(2) of the bill will amend section 87 of the Anti-Discrimination Act to define the term "homosexual vilification complaint" and to substitute the definition of "representative body" as a consequence of the new type of complaint.
Schedule 1(3) will amend section 88 of the Act to allow a "representative body" to lodge a complaint of homosexual vilification on behalf of one or more named individuals. This provision will enable people who lack the confidence or ability to make a complaint, or who are afraid to make a complaint, to lodge a complaint with the assistance of their own community organisations. I emphasise that this does not provide for class actions and that no damages are payable to these organisations. These community organisations will play an important role, both in assisting potential complainants and in advising them whether a particular act is in fact vilification and grounds for a complaint.
Schedule 1(4) of the bill will insert in the Act a new section 89C. This will require the president of the Anti-Discrimination Board to refer a complaint to the Attorney General if, after investigating the complaint, the president considers that the offence of serious vilification of homosexual persons may have been committed. As with the racial vilification provision, this procedure has been adopted to maintain a clear distinction between the function of conciliation, performed by the Anti-Discrimination Board, and the function of prosecution, performed by the courts. Schedule 1(5) is a consequential amendment. Schedule 1(6) will amend section 113 of the Anti-Discrimination Act to enable the tribunal to make certain orders after holding an inquiry. The tribunal will be empowered to order the respondent to publish an apology or retraction or both. The tribunal may also order damages to be paid.
Violence against lesbians and gay men is endemic. Every week there are reports of gay bashings and threats, and abuse is common. The "Off Our Backs" report on violence and the "Streetwatch" report on violence against lesbians and gays document the extent of this violence. It is not safe for gay men and lesbians to walk down main roads in daylight. Walking with friends is no protection. Laws against vilification of lesbians and gay men were recommended by the Anti-Discrimination Board report on HIV related and AIDS related discrimination, by the "Streetwatch" report and by the "Off Our Backs"
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report - three reports dealing with violence that centres in particular on the Bligh electorate.
The aim of the legislation is to encourage a change in attitudes. This is a difficult process, and slow, but it is absolutely essential if hate crimes against gay men and lesbians are to be stopped. The legislation will encourage education about and discussion of the issues. The requirement of conciliation is designed to resolve problems that arise out of ignorance and to make people examine their homophobia. The law also will make people think twice before saying something which is grossly abusive to 10 per cent of the population. It is only in the past few weeks that I have come to understand just how desperately this bill is needed. Callers to radio talkback shows and callers to my office have spoken about this issue with venomous hatred, and I have been subjected to that. I have never experienced such anger. This is what lesbians and gay men experience every day in the Bligh electorate.
One caller to my office said that violence was the right response to sinners like this. She said that if someone in her area called for people to drive out the homosexuals from her area, she would be there to support him all the way. Honourable members, this bill is not introducing the thought police. If this woman believes that homosexuality is a sin, she can hold that belief. If she wants to say this on prime time television, I will support her right to do so. But the minute she talks about lynch mobs, the tolerance of the community is at an end. This is what this bill calls for. It calls for protection of the rights of homosexual people to live a dignified and peaceful existence, free from homophobic violence and vilification.
I call for bipartisan support from this House for the bill. I call upon this Parliament to continue to play a leadership role in legislating for an end to totally unacceptable forms of discrimination. I ask this House to call for an end to ignorance and prejudice. This bill will, through education, contribute to changing attitudes, which thereby will lead to creating a more just, humane, tolerant and accepting society. What goal could be higher than that?
Debate adjourned on motion by Mr Hartcher.