ANTI-DISCRIMINATION (HOMOSEXUAL VILIFICATION) AMENDMENT BILL
Debate resumed from an earlier hour.
The Hon. J. F. RYAN [9.36]: I have an overwhelming sense of responsibility in considering this bill. There is little doubt that this will be a landmark decision of this Parliament. The public has debated this issue at length; almost everyone in the community has a strong feeling one way or the other. I have found few people in the community who are undecided about this bill; in fact, many have very definite opinions about it. In that regard, I find it an awesome responsibility to consider this bill. I, as an individual, and the members of the party I represent, support the concept of anti-vilification legislation. We support the right of people, whoever they are - whether they be male, female, homosexual or whatever - to move about our country at liberty, with
complete freedom of movement and freedom from intimidation. I support that concept as a Liberal, and I believe that my party supports it. However, for reasons which I will explain, I cannot support this bill. I believe that some of the provisions in it need to be significantly rewritten in order to make it a good bill which will service all the people of New South Wales in the best way possible.
It cannot be denied that our State has a law and order problem with respect to the homosexual community which has to be addressed, and addressed as quickly as possible. As has been pointed out in the House many times, since 1990 New South Wales police have reported 13 gay hate-related murders in this city, resulting in the conviction of 19 people, including 11 young people of school age. In so far as the Anti-Discrimination (Homosexual Vilification) Amendment Bill seeks to counter these significant community problems and to prevent violence, it is indeed worthy of support.
As a member of the Standing Committee on Social Issues, I have heard evidence - some of it in camera, so I cannot elaborate on it; but not all of the evidence has been so - that youth workers in the inner city have reported to members of this Parliament a particular problem with regard to the bashing of gay people. I will describe it so that it can be easily understood by all members of the community. When I was a young person it was common for people who were around my age to go into the city for excursions which they called rolling drunks. There is little doubt that some people regard this as an acceptable form of activity. In the vernacular, it might be referred to as poofter bashing. I am sure that no member of this Parliament regards that sort of behaviour as acceptable. I am sure that every member of this Parliament would do whatever was possible to prevent it.
However, I have reservations about whether any Act of Parliament will solve that community problem. These people are bashed, not because people hate them so much, but because they are seen as weak, vulnerable and wealthy and therefore targets for robbery. However, I would not kid myself that hate is not an integral part of the problem, so it deserves to be treated specially in legislation. In some respect I find myself divided in that I can support the objective of the bill but I believe some of its provisions need to be significantly rewritten so that the bill will best serve all the people of New South Wales.
The greatest merit of the bill is that it allows individuals to make complaints in private when they have become victims of vilification and to have those complaints dealt with by means of alternative dispute resolution which can include a settlement for damages. That is a worthwhile aspect of the bill and as a Government member I will seek to preserve that feature in any future bill which seeks to deal with vilification. As a member of the social issues committee I have at other times and in other States heard the suggestion that alternative dispute resolution and a civil resolution of damages for crimes such as rape would be welcomed within the community for very sensible reasons. People who are victims of this sort of violence and this sort of crime - I regard vilification in its extreme form as a crime - find it difficult to seek redress within the courts.
Frequently the offence occurs in circumstances which make it difficult to prove. Some members of the homosexual community in particular would find it difficult to have to parade the details of their sexual behaviour in a public place such as a court for the scrutiny of the defence when pursuing action for such a crime. It is appropriate to give victims of vilification - particularly homosexual vilification or vilification of people on the grounds of their gender - access to alternative dispute resolution procedures in which the details of the offence are heard in private. That is the best feature of the bill. Unfortunately, some of its provisions are so poorly drafted - that is the best way in which I can put it - that in my view it needs to be rewritten completely to get the best possible result. I am also realistic enough to understand that the mover of the bill and many of its supporters understood that for a small moment in time they had an opportunity to act now and to get the bill into law because a member of the Liberal Party, my good friend the Hon. E. P. Pickering, has exercised his right as a member of the Liberal Party to vote on this matter according to his conscience. I can understand why at this moment of political opportunity the supporters of the bill want to go with it as drafted rather than wait for something which I believe would be better drafted and better common sense.
I acknowledge also that to some extent the bill is a bit of a totem for the homosexual community, which has been persecuted fairly solidly throughout the community. Members of the homosexual community have regarded support for the bill as a barometer of community support for them as a group, quite apart from the issues dealt with in the bill. I can understand that some of them might regard my quibbling and the Government's quibbling about some provisions in the bill, to be - if I may use the vernacular again - stuffing around. Nonetheless, as a politician and a person elected to represent the people of New South Wales in this place I have to do my job and make sure that every piece of legislation passed by this House is drafted as well as it possibly can be. I listened with interest to the remarks of the Hon. Elisabeth Kirkby with respect to the views of Christians about the bill. I feel I have some ability to contribute to the debate because I regularly attend church and have been of a Christian persuasion for some years.
To start with I have to say frankly that whatever views the church has on homosexuality ought to be somewhat irrelevant to the debate in this place, because we are in the business of making laws for all the people of New South Wales regardless of their creed. But as a Christian in a position of leadership it is important for me to give a quick message to those who share my persuasion. As the Hon. Elisabeth Kirkby did, I condemn completely some of the outrageous remarks made by people who hold Christianity in the same way as I do. Some have gone overboard in opposing the bill and condemning members of the homosexual community. That is unchristian, wrong, intolerant and out of keeping with
the teachings of the scriptures. The Hon. Elisabeth Kirkby, in her interesting analysis of the biblical teaching about homosexuality, forgot a passage which I think is worth referring to because in my view it puts homosexuality into its proper context in the Bible. I disagree with the remarks of the Hon. Elisabeth Kirkby suggesting that it is possible to take a view that the Bible is silent on the issue of homosexuality. I do not believe that is frankly true or pays due attention to the text. However, the Bible does not refer to homosexuality extensively, which puts it into a context to start with. Second, one of the passages in the Bible that deals with homosexuality is in the book of Romans, which was written by the apostle Paul. He described a number of sins and said:
One thing I draw from that passage is that it is fairly unequivocal that the Bible condemns homosexuality as a moral option for people who would be Christians. Then the apostle Paul goes on to describe a series of other sins which he regards as equally abominable as the sin of homosexuality, including maliciousness, coveting, envy, murder, deceit, thieving and even gossip. So if gossip is as sinful as homosexuality we need to get this issue, for Christians, into some sort of context. He lists a whole heap of things to be morally irresponsible. I have to say quietly that I have committed plenty of those things which are outlawed in the Bible, so in that regard I am no different from a homosexual as far as God is concerned. I do not quiver at the knees simply because someone tells me that homosexuals are in the same position as me before God. The matter needs to be put in that context. So in my view there is no special reason for Christians to be particularly overwrought about the provisions of this bill. Many of its provisions are worth supporting; but I would prefer some of it to be rewritten because it imposes restrictions on legitimate freedom of speech. I wish to divide the offence described in the bill into two parts. It essentially creates two offences. One is described in proposed section 49ZT(1) which refers to homosexual vilification being unlawful. It states:
And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet.
In other words, public statements which are generally regarded as offensive towards homosexuals are made unlawful. Through the rest of the terms of the Anti-Discrimination Act people are able to make complaints about these matters and receive a form of alternative dispute resolution in response. For the purposes of my speech I shall refer to what I call the civil offence of homosexual vilification. By that I mean this offence which, though not strictly a civil offence, is not punishable by a gaol sentence. Serious homosexual vilification, referred to later in the bill under a sub-heading, is committed when a person makes a statement that satisfies all the above criteria for homosexual vilification but includes a threat of physical harm towards any property or person or group of persons, or when a person commits an offence that satisfies all the criteria of the civil offence, and then incites others to threaten physical harm. That offence is intended to be a criminal offence and attracts a penalty of six months imprisonment or a fine of 100 penalty units, or both. That is the criminal offence.
Any person who behaves in that manner behaves in a criminal way. Such an offence is no different from the offence of domestic violence and should be condemned in our statutes. In that respect the bill is good legislation. I have no objection to a bill which seeks to outlaw the criminal offence of homosexual vilification. My main concern is about the flimsy definition of what I term the civil offence of homosexual vilification, which is punishable not by a gaol term but by other serious and stringent provisions. I turn to those provisions to which a person might be subject upon committing the civil offence and refusing to co-operate with an attempt to conciliate a dispute.
If the offender refuses to co-operate in the conciliation effort, and if the matter is referred to the Anti-Discrimination Board and is confirmed as an offence, the offender could be subject to a range of remedies outlined in section 113B of the current Anti-Discrimination Act. They include an award of damages of up to $40,000, an order not to repeat the conduct, an order to perform any reasonable act to redress any loss or damage suffered by the complainant, an order to apologise, or an order to develop and implement a program or policy aimed at eliminating unlawful discrimination. A refusal to comply with an order of a tribunal carries a penalty of $1,000. Failure to comply with an order to appear at a meeting with the president of the Anti-Discrimination Board can attract a fine of up to $500. Failure to co-operate with the tribunal can also attract a penalty similar to that imposed for failure to comply with a requirement to attend hearings of a royal commission. These amounts are currently fixed in the present Act.
The entire Anti-Discrimination Act is subject to a major review by the Law Reform Commission. A discussion paper being circulated indicates that consideration is being given to increasing the maximum level of damages from $40,000 to $250,000, in line with current Federal penalties. Concern has arisen that the scope of the law is being broadened at a time when current penalties appear to be moderate. At a later time action may occur to increase the penalties for discrimination against race or gender. However, such provisions also catch the measures that might be added to the law today. The chief difficulty in the bill as drafted arises from imprecision of the terms used to define the civil offence of homosexual vilification. The criminal offence is easily defined as including an objective threat of physical harm or bodily damage to a victim. Where the offence is a public statement which the homosexual community may find offensive, the sorts of terms used to define that offence are serious contempt and severe ridicule. Yet there are also defences which include acts done reasonably and in good faith for academic, artistic or scientific research purposes or other purposes in the public interest. Recently the Parliamentary Library distributed to all members an excellent briefing note on homosexual vilification. That briefing note takes two pages to
demonstrate the difficulty of describing what the word ridicule means. I quote the first paragraph of that note:
It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of homosexuality of the person or members of the group.
In other words, until the meaning of severe ridicule or serious contempt is tested in court, the provisions are a step into the dark. No one knows exactly what they mean. That creates a problem for the president of the Anti-Discrimination Board in determining who has committed an offence or whether a particular action constitutes an offence, but ordinary citizens will have no idea whether a comment they might make offends the proposed law. That awaits a decision yet to be taken in the courts. Because most of these matters are heard by the Anti-Discrimination Board and do not attract a gaol sentence, many people will cop a lot of harassment before deciding to go to court.
The bill mirrors similar racial vilification provisions that have become law. The provisions are almost identical in terms. To some extent they have had a dry run in the community and people have had a chance to become used to them. However, peculiar decisions have been made by the Anti-Discrimination Board. The Daily Telegraph Mirror published an article on my native country of Ireland. The article gave a rather robust description of that country as being fairly heavily subject to the rule of the Roman Catholic Church. The article was critical of some aspects of life in the Republic of Ireland, but one would not think such an article would be considered vilification of Irish people.
Nevertheless, the Anti-Discrimination Board did, and ordered the newspaper to publish three articles to counter the effect of that one article, which could be regarded by some as accurate. The newspaper had to publish articles on the positive contribution of Irish people to Australia and on the harm caused by racist jokes; also it agreed to print an editorial on the dangers of racism and the benefits of tolerance in society. People will wear a great deal from the Anti-Discrimination Board without protest because they want to get the matter over and done with; they will not want to be hassled by the provisions of the bill. If a problem like this can happen on questions of racism, I expect the situation to be far worse when the board deals with the far more controversial topic of homosexuality.
The loose definitions in the bill are important. They will have an impact on the liberty of the individual and that is why I am particularly concerned about how the bill is drafted. The driving force behind it is said to be a recommendation made by the New South Wales Anti-Discrimination Board in its excellent paper entitled "Discrimination - the other epidemic". It is true that this particular report recommends the introduction of vilification laws. It needs to be pointed out to honourable members that this important issue - which I have been speaking about for almost half an hour - is disposed of in three pages in this report.
The sole example given to justify the introduction of these laws is one instance in which the board reports that a person with HIV-AIDS was subjected to ongoing harassment by a neighbour. He was subjected to verbal abuse and graffiti on his front door reading, "Die faggot, die" and his property was defiled with faeces. I am sure every member of this House would regard that as an utterly offensive act and would have enormous sympathy for the victim in that particular case. If the person who did that suffered very heavily in the courts, I am sure many honourable members would believe that to be reasonable justice.
That incident, which is regarded as the motivating factor behind bringing in vilification laws, could have been dealt with under the provisions of the Summary Offences Act and the Crimes Act and that would be considered to be reasonable treatment for the offence. Even if those existing provisions were not available to deal with it, there is no doubt that proposed section 49ZTA, which deals with criminal offences relating to homosexual vilification, would have been more than adequate to deal with that particular case. In my opinion there is no reason for the other offence, which I have called the civil offence, of homosexual vilification. The one that does not carry a gaol penalty is almost unnecessary. My other concern with this report, good though it is, is that it makes no attempt to examine the efficiency of one method of attacking homophobia over other potential methods. It simply recommends the introduction of every imaginable legal measure. Whether the authors of this report like it or not, whether I like it or not, or whether any member of this House likes it or not, it must be acknowledged that there is a robust debate within our community as to whether homosexual acts are considered acceptable behaviour.
As evidence of that I refer to a Bulletin opinion poll published late last year in which a bare majority of respondents, 51 per cent, indicated that they accepted homosexual relationships. True, that is a majority, but 38 per cent of the respondents said that they found homosexual relationships totally unacceptable. The remaining 11 per cent were undecided. It has to be acknowledged that our society is robustly debating, and probably will continue throughout our lifetime to robustly debate, whether homosexuality is an acceptable form of behaviour. I am sure everyone has an opinion on that. Accordingly, it is necessary to make provision in our legal system to allow that debate to progress. Certainly the debate should not reach the extremes whereby people are wounded and offended, but a level of robust debate has to be permitted. For my own information I conducted a review of the print media over the last couple of years to look at some of the ways in which this debate has raged, and some of the remarks which might attract attention from this bill.
For the information of the Parliament I quote the types of comments which have been made. Mr Patrick Jones, executive officer of the Armed Forces Federation - the quasi union that operates for the defence forces - said that "heterosexuals still find homosexual activity to be repugnant". His comments
were mild by comparison with those of the former National Returned Services League President, Alf Garland, who, responding to proposals that the ban on homosexuals in the forces should be lifted, claimed that some members of the defence forces "would take their own action" and that it was "likely to be physical". He went on to say, "Homosexuals are sexual deviants who have a medical problem and should not be treated any differently to drug addicts". That is a strong statement indeed.
While I do not accept those comments in any way to be statements of fact, it has to be acknowledged that, unfortunately, a large number of people would support Mr Garland. Even a judge raised the ire of homosexuals by saying, "Even though the Anti-Discrimination Act forbids people to attack homosexuals (sic)" - and that says something about what judges know of the law, because it does not - "nevertheless sodomy is still regarded as unnatural behaviour by most people in the community". The homosexual community would also be likely to take extreme offence at the remark of a police officer who described a park in the Milperra area - in a police report in a newspaper, not particularly dealing with the issue of homosexuals - as "infested with homosexuals".
Even the much respected late Professor Fred Hollows raised strong objections by accusing homosexuals of "recklessly" spreading the HIV-AIDS virus. He said, "AIDS in this country remains a homosexual problem". He went on to condemn the Gay and Lesbian Mardi Gras and proposed the segregation of members of the Aboriginal community who were HIV-AIDS positive. I would not agree with most of the remarks that I have read. Few members of the Parliament would not have regarded Professor Fred Hollows as a person who set some high standards in his personal morality. Yet clearly his comments about the homosexual community and the Aboriginal community would be hotly debated. The difficulty posed by all the above statements I have cited is that I suspect many members of the homosexual community would regard them as comments which should come within the purview of this bill.
For example, one spokesperson for the gay rights lobby in this city, Miss Carole Ruthchild, claimed that a spate of gay bashings which occurred in 1991-92 were "directly related to the propaganda put out by such people as Fred Nile". I also cite those paragraphs to indicate the difficulty of groups within the community who would regard those as being statements made in good faith or in the public interest. What one group of people would regard as vilification, another group in our community would regard as comments in the public interest. I am loath to become involved in choosing between what is good taste, what is politically correct and what is acceptable. I am perfectly happy to legislate against statements which deal with the issue of violence. I have enormous reservations about enacting laws which might restrict any aspect of that robust debate. Though I may not agree with a single statement made, and though I might regard some of those remarks as tasteless in the extreme, I am not sure that those remarks should be unlawful, given that those views are widely held by people of high respectability in the community. I am not sure I could take the final step of making that type of statement illegal, given that it would be difficult to prove that any act of violence actually flowed from any one of those particular comments.
Particular difficulties also arise from the use of the term "severe ridicule". If the purpose of the bill is to prevent violence, it is difficult to understand why the definition of "public act" includes the term "severe ridicule". Ridicule may be painful to endure but it is not likely to have a proximate relationship to potential violence. At the very least this term should be deleted from the bill. I could quote one other instance of where a level of zealousness has been exercised by the Anti-Discrimination Board but I am sure that our colleagues the Hon. Elaine Nile and Reverend the Hon. F. J. Nile will refer to the occasion later when Reverend the Hon. F. J. Nile made a comment in a newspaper with regard to the decision by the Prime Minister, Paul Keating, to allow homosexuals into the army. He made a comment which I personally regard as absolutely tasteless. A complaint arose as a result of that press release. The complaint was made to the Anti-Discrimination Board by another of our colleagues, the Hon. P. F. O'Grady. I understand why he would complain about that. In any event, because this bill was not in existence the President of the Anti-Discrimination Board was not able to take action but he wrote to Reverend the Hon. F. J. Nile and that reply has been circulated.
The President of the Anti-Discrimination Board, Mr Mark, said that the comments of Reverend the Hon. F. J. Nile breached the spirit and intent of the Anti-Discrimination Act. I have little doubt that he probably would have regarded the comments of Reverend the Hon. F. J. Nile as an offence under that Act. May I contrast those comments with similar assurances given to the public by the Attorney General, the Hon. John Hannaford, when the Government was circulating a bill with almost identical provisions. He said that the comments of Reverend the Hon. F. J. Nile or similar remarks would not be subject to action because they would be covered by the provisions of the Act which exempt speaking out in good faith or in a matter of public interest. So two perfectly respectable legal authorities have completely different views about what this bill means. That is why I am concerned about its drafting.
The concern that has been voiced to me is not about the thrust of the bill, but about a fear of how it might be applied overzealously by the President of the Anti-Discrimination Board or by overzealous complainants. Proving that one should not be subject to the bill will be a very difficult task indeed. The most articulate expression of this point of view that has been presented to me was by Father Brian Lucas of the Catholic Education Commission. He said if the bill were passed he fully expected to be involved in almost non-stop litigation with the Anti-Discrimination Board as a result of complaints about the contents of the Catholic school curriculum whenever lessons canvassed issues such as the family, morality and sexuality. I am inclined to agree that if this bill is passed unamended by this House, it is highly likely
that the Catholic Education Commission and schools which seek to include a religious viewpoint in their curricula will be the subject of complaints under this bill.
I strongly believe that the honourable member for Bligh, who introduced this bill in another place, did not intend the bill to pick up comments like that. However, I am not convinced by the facts or by the advice I have received that this bill is not at least oblique and difficult to interpret when it deals with this particular issue. It is because of that lack of definition that I have enormous reservations about it. It is well-known that the Government would prefer the issue of homosexual vilification to be dealt with in a bill which attacks vilification in generic terms. I have essentially supported that concept. As is stated in the long title of the Anti-Discrimination Act, it is the very essence of the legislation that all members of the community should be treated equally. All individuals in the community are entitled to be protected from threats of violence. The level of violence faced by homosexuals is very serious but, regrettably, it is not a problem that is faced by homosexuals alone. It is almost certain that another two groups in the community suffer even more from threats of violence. They are women and children.
It is very likely that other minority sexual practices such as celibacy, virginity, promiscuity, adultery or prostitution are equally subject to public expressions of at least serious contempt, severe ridicule and, in some instances, hatred. In my view equality demands protection for these people, as well as for people who lead homosexual lifestyles. One of the key factors behind the ready public acceptance of racial vilification laws is the fact that the laws have been universal in their application. Those laws not only provide protection for people of non-English speaking background, but also protect the indigenous people of Australia and members of the dominant Anglo-Celtic culture. They have been effective in resolving and preventing the escalation of disputes between members of immigrant cultures. Regrettably, these amendments to section 49 of the Anti-Discrimination Act will not act in the same manner because they relate only to those of one sexual preference.
One bizarre effect of this bill is that it will protect the homosexual community from the abuse of others but it will not protect the remainder of the community from hurtful comments or actions which may come from within that community towards others. To demonstrate that point, I need refer only to two notable examples of what I believe represents vilification by homosexuals of other members of the community. One infamous tableaux that is a regular presentation at the Gay and Lesbian Mardi Gras is a papier-mâché head of Reverend the Hon. F. J. Nile on a plate. Although the image is meant to be provocative and satirical it could be argued that it is an image of violence which, in the eyes of some, may validate an attack on Reverend the Hon. F. J. Nile. In fact, Reverend the Hon. F. J. Nile reports that on many occasions he has been surrounded by protesters who have behaved or acted in a violent or near-violent manner. Another example of what I believe represents vilification by homosexuals of the remainder of the community is the group known as the Sisters of Perpetual Indulgence, who frequently heap strong ridicule on Roman Catholic nuns, which is in part directed against their practice of chastity.
The Hon. Ann Symonds: They are Anglican nuns.
The Hon. J. F. RYAN: Frankly, I do not care whether they are Callithumpian nuns. Nevertheless, that group represents a vilification of the nuns' practice of chastity. I certainly accept the view that those nuns are entitled to believe that they are being vilified and are entitled to protection, just as much as homosexuals, from that vilification. Many Roman Catholics, Anglicans and nuns find that practice very wounding, disturbing and hurtful. I realise that many of the protests are responses to fairly equivalent attacks on homosexuals. I regard all of the statements made by all parties I have described as being in poor taste, but in my view they are not statements which should be made illegal. My preferred position is that they should be tolerated and not subjected to any interference. The best response to outrageous attacks which are made in poor taste is for other members of the community to defend the victims.
An additional problem of dealing with hate-based violence by measures such as homosexual or racial vilification laws is that such laws tend to focus more attention on the victim rather than on the eradication of the anti-social violent behaviour. I would prefer generic laws that generate a mainstream response by the whole community against violence. The current strategy risks are being criticised as artificial. May I perhaps illustrate that in another way. I understand that in Weimar, Germany, a number of people deliberately vilified members of the Jewish race to break the law and to be brought before the courts, so that they could publicly repeat their vilifying remarks and obtain public sympathy and credit for them when they were punished. In my view a bill which seeks to define vilification for one group in the community in this particular way, rather than being a generic response to a problem, risks being treated in the same manner. Regrettably, some people will regard it as noble to commit an act of civil disobedience by deliberately disobeying the provisions of the proposed Act and having themselves punished so that they will be able to make public martyrs of themselves. By doing so, they will undermine the intended beneficial effect of the Act.
It is probably time for a little humour. The supporters of this bill have said that one excellent result of the bill will be the gagging of our colleague who is not present, Reverend the Hon. F. J. Nile. Oddly enough, I believe that legal advice indicates that whomever else the bill may gag, it will not gag him. The reason is that he is not only a person with a view about homosexuality, but also a politician who is likely at some stage in the future to stand for re-
election. The famous case of Australian Capital Television Pty Limited v. The Commonwealth (No. 2) and the case that was heard at the same time, Nationwide News Pty Ltd v. Wills, were heard by the High Court and resulted in the discontinuance of the ban on electronic election advertising. In his judgment Justice McHugh stated that it was the right of all people to be aware of the opinions of their elected officials. He said that all electors must have access to the information, ideas and arguments which are necessary to make an informed judgment as to how they had been governed and as to what policies are in the interests of themselves, the community and the nation. I believe that so long as Reverend the Hon. F. J. Nile stops short of actually advocating an act of violence, regardless of the provisions of this bill -
The Hon. Elaine Nile: Which he has never done.
The Hon. J. F. RYAN: I accept that may well be the case. Provided he stops short of that, it is highly likely that he is protected by this implicit constitutional guarantee of political free speech and is able to say just about anything he likes. That simply begs the question: if this bill is drafted in such a way that Reverend the Hon. F. J. Nile is free to say whatever he likes about homosexuality, should that right not apply to the rest of the community? What we really need is a bill that simply does not leave Reverend the Hon. F. J. Nile out; we need a bill that brings us all in and has the support of the whole community. I now want to deal with some philosophical objections to the homosexual vilification laws, because these philosophical objections are important. A number of civil libertarian academics have raised cogent arguments, in my view, against vilification laws in general, particularly laws which seek to restrict public statements that fall short of advocating violence. I quote an example from the Sydney Law Review by a commentator, Mr Sadurski, who said:
There is some uncertainty about the operation, though, of the anti-vilification provisions if they are enacted. What does the term "ridicule" mean, for instance, and how is this to be distinguished from "severe ridicule"? As a matter of law it seems unlikely that such a term will be able to be more specifically defined: to others, clearer statements of what is to be proscribed and clearer statements of how the law would apply in practice would be desirable to the situation of awaiting a "test case".
That view has been shared by Hugh McKay, who says in his book Reinventing Australia:
Racists are there, and it is better to let them air their views in the open rather than allow an illusion to grow that the problem has been solved because racist statements have been made illegal. Group vilification is a symptom, not a source, of deeper problems that give birth to hate and contempt by some groups in society. By prohibiting public statements that vilify those groups we may slightly reduce the hurt to the feelings of their members, but at the same time we risk removing the issue of racism from the public agenda. The good of allowing group vilification is that it helps maintain the visibility of a dramatic problem which is there anyway, regardless of the prohibition.
It is my view that passing laws does not necessarily solve the problem; it may only mask it and allow it to exist in a more sinister and difficult way. This particular comment has not only been made by people with regard to outlawing racism but by some respectable commentators with regard to homosexual vilification. A similar point is made by the gay activist, Anthony Lean, who argues that while the proposed laws have some value in empowering minorities, they are so narrowly focused that they will only serve to heighten the process of disempowering the non-heterosexual identifying minority. He reports that similar homosexual vilification laws in New Zealand have simply allowed vilifiers to hide behind private conciliation procedures and appeals to their rights of free speech. They have not challenged what he calls "heterosexism" in any meaningful way.
Anthony Lean makes the point strongly that the presentation of sexuality in drama and movies and on television has a great deal more effect on public attitudes towards homosexuality than odd outbursts by extremists. Of course, it is worth noting that this particular bill actually contains a provision to permit vilification within works of art. The statement frequently quoted by my colleague the Hon. Dr Marlene Goldsmith from Voltare is also applicable, "I may not agree with what you say, but I will defend to the death your right to say it". With regard to this particular issue I have a great deal of respect for the remarks of the famous libertarian, Thomas Jefferson, who said:
If we regulate tolerance, is it really tolerance any more? If we create laws to prohibit the expression of bigotry and racism, have we addressed the vices of bigotry and racism? If we legislate for non-sexist language, have we solved the problems of sexism (or might a term like `chairperson' be used in a spirit of derision - either by men who employ it as a sarcastic expression of their lingering chauvinism, or by those who object to the artificial distortion of language which it involved)?
I believe that vilification laws need to be treated with some caution. I would certainly prefer to rewrite this particular bill so that it was more accurate in the way in which it defined the offence, and I believe we need to seriously address the difficulty that might occur if we make this a private problem when it ought to be out in the open and public. Honourable members will know that I have put a great deal of thought into this particular bill and that when the matter was available for public consultation I wrote and circulated a 20-page report on this subject - because I felt strongly about it - in which I developed some of the research, poor though it was, that I was able to carry out on this particular subject.
I appreciate the comments made to me by the research officer of the Hon. P. F. O'Grady, who said he read my paper with interest and believed that it was a good commentary on the issues. I thank him for that comment and I quote it only to demonstrate that I have not attempted to approach this matter in a bigoted fashion, I have attempted to approach it from the point of view of an objective, logical, rational, and well reasoned debate to try to make the bill as good as it can possibly be. In that vein, I outlined to the Attorney General and to others who cared to listen another form of legislation which may well deal with
this issue in a far better way. I do not suggest that this is where the Government might end up when it receives a report from the Law Reform Commission. I simply put it forward as another way of achieving the same end and I ask honourable members to consider, when they listen to the regime I suggest, whether it would not be less controversial and more accurate in its description of the problem.
I would prefer section 49ZTA of the bill, which is the criminal homosexual vilification section, to contain a requirement that there must be the threat of physical harm towards the property or some person, so there is an objective test that can be applied to any public statement. However, we would probably have to add in addition to that some provision which substantially mirrored the provision of the Summary Offences Act which relates to offensive language. We would need to add to it the words "which cause serious alarm or affront". Additionally, it would be necessary to legislate to give the President of Anti-Discrimination Board the legal discretion to either conciliate complaints made under the Act or to bring them to the attention of the Director of Public Prosecutions so that it could be dealt with by the courts. I would include in that discretion the provisions which oblige the President of the Anti-Discrimination Board, when he receives complaints, to take into account the seriousness of the offence and the express wishes of the complainant to have his matter heard in private.
If there were a regime of that nature and if it were made to generically apply to all forms of vilification, I believe we would have a vilification law which would contain all of the benefits of the current bill, but which would stand out in that it would not be met with such an enormous level of controversy. In my view, almost all of the controversy about this bill arises from the earlier proposed section 49ZT(1) dealing with the civil offence and from the fact that its definitions are so loose that people have been able to make this bill relate to almost anything.
As a means of testing the effectiveness of the regime that I have outlined, I went to some examples of homosexual vilification which have been cited by the honourable member for Bligh in another place. I am not inclined to simply repeat them, because I have reservations about gratuitously repeating examples of homosexual vilification. However, I will refer to a couple because they are well known and I do not believe I am adding to the problem by referring to them. There has been reference already in this Chamber to the Anglican clergyman in Tasmania who was quoted in the Examiner as saying that people should not be afraid to be called gay bashers. That particular remark would probably fall within the terms of the Act I have outlined. There is a specific reference to an act of potential violence. The honourable member for Bligh referred to a person who rang her office and made some critical comments about homosexuals and then indicated that she wanted lynch mobs to address the problem - a specific, objective reference to an act of violence. It would be covered in the bill I have just proposed.
The bumper stickers to which the Hon. Elisabeth Kirkby referred earlier would be covered by the regime that I have referred to, because a specific reference to an act of violence is included in the comment. There is need for a provision that refers to offensive language, because a threat of violence would not pick up expressions such as those used to refer to homosexuals, the well-known words "faggot", "poofter" and so forth. The regime I have described would address that need, and if it were generic, the problem would be solved without controversy. I have tried to be as constructive as possible in my examination of this bill. I cannot support the bill because its loose drafting involves almost 50 per cent of its text. It is not possible, though I have tried by consulting with the Parliamentary Counsel, to solve the problem. If that 50 per cent were deleted, the bill would not make sense. I urge honourable members not to pass the bill and to await a further report by the Law Reform Commission on a bill that would do the job better. Sure, it would take more time, but it would be time well spent, because it would have the advantage of being accurately and properly drafted, and it would attract a great deal more community support.
The Leader of the Opposition has already floated reference to an amendment should the House vote to pass the bill. Though I will be voting against the second reading of the bill, I urge honourable members in Committee to support those necessary amendments. Despite the provision in the Anti-Discrimination Act which exempts religious practice there is some concern that that exemption may not refer to religious statements. Therefore the churches, at a high level, have requested honourable members to consider a simple amendment that would enable those concerns to be met. My concern about that amendment generally is that it applies only to people who operate within the Christian church. Other people may want to make robust comments about homosexuality that are not in bad taste and are not necessarily offensive, but regrettably would not be covered by that amendment. Though I am not particularly excited about the bill being passed, and there are limitations to the amendment, for good reason those amendments are well worth the consideration of the House. I have spoken critically of the bill, but I would never want to speak critically of its supporters, because I believe they stand for principles that are decent, just and compassionate. In so far as they are attempting to achieve that I commend their efforts, but I cannot support the bill.
The Hon. Dr MARLENE GOLDSMITH [10.33]: I am obliged to my colleague the Hon. J. F. Ryan for his meticulous examination of the structural drafting and interpretation problems that attend this bill. He has obviated the necessity of my discussing them, because I support entirely his comments on this matter, including his final comments. I shall take a different approach in debating this bill. A dishonest and misleading allegation in this debate that has been widely circulated and is most unfair is that the Government
backed off on its undertaking to introduce legislation to protect the gay and lesbian community from vilification. In my view that is a total falsehood. True, the provisions relating to homosexual vilification in the Government's draft Anti-Discrimination (Amendment) Bill were not proceeded with at the time and I inform the House that I was one of those who lobbied strongly against proceeding with the legislation in its draft form.
However, honourable members and the community generally are entitled to know why I opposed the legislation as it stood, and why I similarly have strong views about the current legislation. My stance does not arise from opposition to vilification legislation as such. Indeed, my rationale is quite the opposite. I wish to have the protection of such legislation extended to a broader community. As a former social scientist, I realise the value of vilification legislation. It is educative legislation. It is legislation that challenges certain entrenched societal attitudes and helps to change those attitudes, attitudes that are harmful to equality of opportunity for those in society who are the subject of such vilification, who are the subject of language that promotes violence against them. In particular, while on the subject of sexual vilification, I wish to have the protection of such legislation extended to one community that is currently excluded, and that is females.
In my view it is profound hypocrisy to introduce the concept of sexual vilification but not extend its protection to women - more than 50 per cent of the population - who are both the greatest targets of sexual vilification and the greatest victims of sexual violence. In commemoration of the State day of action on sexual assault on 31st August, while the Government bill was still in the arena of public discussion, and after a great deal of personal soul searching, I took the difficult step for a Government member of calling upon the Attorney General to extend the protection of the legislation to include women. I took this step by making a public statement on 30th August. My press release stated:
We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings of some; these corrections are safer than the conscience of the judge.
In making those statements I requested that the Government extend its draft proposals on vilification to everyone on the grounds of their sexuality, but particularly to women. The level of violence which the gay community has suffered has been already alluded to in this debate and in previous debates on the same subject in this House. What of the level of violence experienced by females? One could discuss domestic violence, murder and general assault, but I will not. I could point out to honourable members that according to a United Nations report on 38 different countries, Australia is about half way in the level of male homicide but is sixth in female homicide.
However, because my concern is with sexual vilification, I will limit my comments to sexual violence only. In order to gain a concept of the overall level of sexual violence in New South Wales, last year I extracted the 1991 Bureau of Crime Statistics and Research figures only for the categories of sexual assault involving rape - that is, the most serious sexual assaults. A conservative estimate is that one in three rapes are reported, though most estimates now suggest that one in four rapes are reported. The figures I used were that 85 per cent of rape victims were female - although estimates suggest the figure may be as high as 90 per cent. The average lifespan of a woman I calculated as 75 years - again a conservative estimate. From these figures I was forced to conclude that the average lifetime risk of a female being raped in New South Wales was at least one in eight. This is not an overall average rate; it is the lowest possible threshold of the level of sexual violence in New South Wales.
I found that figure to be quite shocking. It has been reinforced in discussions with various communities in this State. After meetings I have attended people repeatedly come up to me and say, "Yes, this has already happened to me". I am forced to conclude that my estimate must be conservative; there must be many people who are not telling me these things. On average, one in eight women present at these meetings to tell me that they have been raped, and that confirms my figure. Average lifetime risk is clearly not an indicator of an individual's level of risk. After all, the average family has 2.3 or 2.4 children - I do not know any family which has 2.3 or 2.4 children, regardless of what a certain automobile commercial says. Statistical averages are useful for only one thing: they give a clear indication that sexual violence against women is a huge problem in our society - a problem that has remained unrecognised because we have been unwilling to use figures such as these to gain some idea of its incidence.
My concern about the incidence of sexual violence was confirmed by the Bureau of Crime Statistics and Research in a publication entitled "Adult Sexual Assault in New South Wales, Publication No. 20, July 1993". The Australian Bureau of Statistics estimates that the annual rate of sexual assault of women aged 18 years and over in New South Wales is about 0.6 per cent of the population. If that figure is averaged out, as calculated in the way I calculated my figure, one sees a similar result. It shows that one in three females experiences sexual assault and one in six females experiences rape, if the figures were extrapolated over a lifetime. That is of serious concern. It is a substantially higher figure than the one that I calculated.
The United States National Victim Center estimates the lifetime risk of being raped as one in eight - that is, those categories of sexual assault that involve penetration. In its invasiveness of the person, its attack on the individual's physical integrity, rape is a horrifically destructive crime; it involves not just physical violence. It is a violation of the very integrity of the person, as can be judged from victims' responses. Many victims have the urge to take repeated showers in the course of a day to try to feel clean again. That is just one common response of victims of rape. It colours victims' responses to the world for many years, and perhaps for life. It can be quite crippling.
Yes, homosexuals experience violence. I am sure that no one who sat in this House and observed firsthand the results of the appalling physical violence experienced by one of our own members, the Hon. P. F. O'Grady, not so long ago would deny that. But is the level of violence experienced by the gay and lesbian community greater than the level of violence experienced by females? I would answer no. Yet the legislation before the House proposes to extend the protection of vilification law to homosexuals, but not to females.
What of the level of vilification against women? How extensive is it? It would be logical to assume in the current debate that there must be very little such vilification, given the fact that females are not considered worthy of inclusion in this law. It is not unreasonable to say that the level of vilification against women in our society is so high that it is difficult to know where to begin. Indeed, I broached the subject with the President of the Anti-Discrimination Board, Mr Steve Mark, some time ago. I expressed my concerns to him about female sexual vilification. He agreed with me.
I said that in the draft legislation, as it was when we were discussing the matter, the Government suggested provisions against vilification of homosexuals but not vilification against women, which is another form of sexual vilification. If it is a huge problem, why had we not included it as part of that legislation? Why have we included only homosexual vilification? The answer Mr Mark gave me was simple but powerful: because the problem is just so big. It is so enormous that it would, in his view, take a lot of the resources of the board simply to start coming to terms with it. How can we start to come to terms with it in a culture where such vilification is so entrenched and widespread?
I will give some examples of how entrenched and widespread such vilification is. I refer to pornography. In my definition pornography is not material that shows relations between consenting adults; it shows violence, condones violence, and presents images of females being degraded. It promotes the perception that females are less than human and less than equal. In the United States alone the pornography industry is estimated to be worth between $7 billion and $8 billion a year. That is greater than the combined total of the movie industry and the music industry. That is the extent of the medium we are talking about. Pornography is an industry that is increasingly built on the degradation of women. Many honourable members probably have the view that pornography is about the semi-soft focus, supposedly artistic shots that one used to see in Playboy in the early 1960s. That is not the truth. The sort of imagery in pornography is increasingly violent and degrading.
I do not want to go into all of this in detail now - that is not the point of this argument - but I refer honourable members to the various papers in the recent volume edited by Catherine Itzin, a United Kingdom academic, published by Oxford University Press called Pornography, Women, Violence and Civil Liberties. In a recent visit to Holland I was informed by Dutch police who specialise in this area of their increasing concern about growing violence in pornography. As a consequence of the increase in violence over the years prostitutes are experiencing much greater violence because of clients demanding from them the sorts of things they are seeing in pornographic movies and magazines. Similarly with X-rated videos, a campaign was successfully run some years ago in this Parliament by female members which resulted in the banning of X-rated videos in New South Wales. X-rated videos are supposedly non-violent but the definition of non-violence appears to be that if a women is smiling you can do just about anything to her that you like.
Looking at the list of titles of publications submitted to the Chief Censor is an educative process. Included in them seem to be a predominance of women's body parts, often grotesquely exaggerated. One title was Raped Playtoy. One would have thought that a magazine with such a title would have been refused classification, but no, it was registered as category 2. Magazines such as Picture and People were not even submitted to the Chief Censor until recently. They continue to provide problems. The classic example of the cover of People magazine, the woman on all fours wearing a dog collar and a tight leash, is the one that springs immediately to mind for most people. It was only one of many images showing women as animals, with animals, subject to violence, or apparently covered in bruises. That is meant to be amusing. Then there are images of naked women on all fours being used as tables for men to rest their beer cans on while they play cards.
And that is not all. The deluge of vilification against women does not stop at the pornography industry; it is endemic in advertising. I refer honourable members to the Berlei billboard showing a woman in underwear being cut in half. That was meant to be amusing. Magistrate Pat O'Shane had some very strong words to say about that billboard. I refer to the Fairfax and Roberts recent advertisement showing a man with his hand down the front of a woman's dress. Many people were very angry about that, but what surprised me was that people were angry only about the picture. It seemed to me that the most powerful message in that advertisement was the caption underneath: "When you see this model in the
flesh you will express your desire for it on sight. And after all we never told you to look but not touch". In other words, that is an invitation to simply help yourself regardless of whether or not the woman wishes to be a part of the experience. In my view it is an invitation to rape. I refer honourable members to the words of Naomi Wolf in The Beauty Myth. She quotes advertising executives:
Tomorrow, on the State day of action on sexual assault, we need to remember that the vast majority of victims of sexual assault, discrimination and vilification are female. To introduce sexual vilification that excludes females makes no sense at all. Our society is awash in degrading imagery that vilifies women, in degrading pornography, in movies that link sex and violence, in video games where women are victims to be tortured, and in underwear advertisements that treat cutting a woman in half as a joke. I am convinced that such images legitimise violence against women and contribute to sexual assault by portraying women as objects with no right to individual human dignity. Such vilification also entrenches myths, such as the idea that women want to be raped, an idea that is a major theme in pornography.
She explains in brackets that "rough trade" is gay male slang for a sadistic partner. She continues:
You have to push a little harder to jolt, shock, break through. Now that the competition is fiercer a whole lot rougher trade takes place.
I refer again to the President of the Anti-Discrimination Board, Mr Steve Mark. He made similar points in his recent presentation to the National Council of Women seminar held in the parliamentary theatrette on 30th August. It was a one-day seminar titled "Men and Women Against Violence". There is so much vilification of women that we as a society take it totally for granted. If a male has a photograph taken that may be even slightly revealing, he will go to court and quite possibly receive a large settlement, as we saw in the recent Ettingshausen case. Premier Jeff Kennett in Victoria sued over a picture that the Age and the Sydney Morning Herald published of him showing him with trick photography apparently naked in a crowd. The reason he protested about such nakedness was that he said it demeaned and degraded him. That is very interesting. It is demeaning for men to be shown naked but apparently not for women. It is very difficult to start explaining to people how such images of women are demeaning and degrading when they are applied to women because such images are so endemic in our culture.
When discussing the magazine cover showing the naked woman on all fours as a dog I have asked people to consider how they would react to a naked Aboriginal man in the same position. Invariably the reaction is one of shock and horror because we know what that image would be trying to convey to us. Yet we take such images totally for granted when they are of women. There are increasingly demonstrated links between degrading and demeaning vilification of women and actual violence. The literature on the connections between rape and pornography is extensive and growing, particularly in relation to material that links sex and violence. I do not propose to go into all of that here. It is a long argument and this is not the place. There is an article that I have read in this month's Quadrant that deals with some of that material, if honourable members are interested in the details. The actual inflicting of physical violence on women as a result of such vilification is not the only reason for opposing -
The Hon. Franca Arena: On a point of order. I have been listening to the honourable member talking about vilification against women at length. It is not relevant to the bill, which deals with vilification against homosexuals. I know that you have conceded a lot of latitude but the honourable member has been talking about violence against women for quite a while. I ask you to ask the honourable member to confine her remarks to the bill.
The Hon. Dr Marlene Goldsmith: On the point of order. The point of this argument is that I consider the bill does not go far enough in addressing issues of vilification. If we are dealing with sexual vilification, there are areas that should be included in the bill. I am simply explaining what areas and why.
The PRESIDENT: Order! I have been listening to what the Hon. Dr Marlene Goldsmith has been saying. I have been drawn to the same kind of observation as the Hon. Franca Arena. However, I have come to the conclusion that the honourable member is supporting her arguments by drawing comparisons with other areas of vilification. To the extent that she does that, I will allow her to continue.
The Hon. Dr MARLENE GOLDSMITH: Demonstrated violence against women is not the only reason for supporting the proposition that vilification legislation should cover female sexuality. Widespread vilification reduces the possibility for female participation, female equality, female respect and female dignity in our society. It is a profound violation of women's civil rights and liberties for them to have to exist in an environment that takes so many assumptions for granted. The greatest level of violence exhibited in our society is physical violence and vilification directed against women because they are women. It is no accident that over the past 20 to 25 years, when women have been seeking more equality, more opportunities and the right to be considered as people, our society has seen a substantial increase in vilification of them.
Some men - certainly not honourable colleagues in this House, of course - might feel threatened by such change. Producers of magazines like People and Picture reassure such men by vilifying women and presenting them as animals, objects and things. Legislative protection is needed against sexual vilification, but that provision must include vilification against females, otherwise it would be a mockery. The gay community has a very strong lobby group and the fruits of their lobbying can be seen in the bill. Most women are holding down two jobs. They are working in the community and also have home responsibilities. Consequently, most women do not have the time to become involved in lobbying activities. Therefore, women can create less pressure to have their issues taken up by the community. Women traditionally have been socialised into accepting certain things in our society so there is probably less consciousness of problems in some areas.
The Hon. Elisabeth Kirkby said there cannot be generic protection. I do not agree with that. Some groups need the protection of such legislation as an educative tool in the community. Legislation should include these groups, especially women. In regard to
the assertion that the Government had agreed to proceed with the legislation in its current form, the bill was put out for public discussion in draft form. If the public discussion process means anything at all, it must mean that if there is sufficient public disquiet about any aspect of the bill it will be returned and re-drafted. That is precisely what has happened in this context. The Government has not resiled from any intention to extend vilification legislation to include protection of the homosexual community under new sexual vilification legislation. All the Government has said is that at present the drafting of the bill has been less than perfect and other areas need to be considered. I would like women to be included in the concept of vilification on the ground of sexuality. The Government has not gone back on its word, nor have any members of the Government. The matter is still being proceeded with. The Government has stated its intention to do something about the problem.
The bill has the flaws referred to by the Hon. J. F. Ryan. Community participation in this process, if ignored, would have been made a mockery. The Hon. J. F. Ryan mentioned sectionality. He said that one of the strengths of racial vilification legislation was its extension of protection to the whole community, whereas homosexual vilification legislation protects only one group in the community; it protects one form of sexuality over others. The honourable member mentioned examples of the homosexual community being protected while other groups are vilified but are not protected against vilification. The well-known image of Reverend the Hon. F. J. Nile's head on a platter was mentioned by the honourable member. I was reminded of images in the Gay and Lesbian Mardi Gras that have profoundly vilified women. They grossly exaggerated female secondary sexual characteristics and parodied female behaviour and mannerisms in a way that the audience was invited to laugh at and make mockery of them. I regard such images, in a society with a high level of violence against women and where women do not yet have equality, as extremely disturbing to say the least.
This House has, this very evening, debated the issue of offensive language under the Summary Offences (Amendment) Bill. I will not take the liberty of speaking to that measure but I do want to discuss offensive language. In our society probably the worst name one person could use about another - the single most vilificatory word in the English language used in the Australian culture - is to call a person a four-letter Anglo-Saxon word meaning the female genitals. If anything demonstrates the contempt in which women are held in our culture, it is that single small fact. Legislation against female sexual vilification is needed to send a message to the community that some behaviour is not socially endorsed. The intent of such legislation is to reduce violence, and that is admirable. Violence is never acceptable, nor is hate crime. Legislation to protect people against sexual vilification is especially needed. Homosexual vilification is one part of sexual vilification. Homosexuals have been known to be the victims of hate crime. But women are also subject to the deluge of sexual violence that is endemic in our culture. It is a mockery to introduce in this House a bill that purports to take a stand against sexual violence but does not offer protection to those who are by far the greatest victims of sexual violence and sexual vilification. I cannot support this legislation in its current form.
Debate adjourned on motion by the Hon. R. B. Rowland Smith.
Today business wants even more desperately to seduce. It wants to demolish resistance. Rape is the current advertising metaphor.