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Tuesday, 23 August 1994
Page: 89

Senator SPINDLER (6.50 p.m.) —I move:

  That the Senate take note of the document.

Today the Human Rights and Equal Opportunity Commissioner has concluded, in the report that has been tabled, that sections 122(a) and (c) and 123 of the Tasmanian criminal code should be immediately repealed, and that if the Tasmanian government will not take this action then the relevant provisions of Tasmanian legislation must be overridden by appropriate federal legislation. However, based on what we now know of the government's plans to deal with Tasmania's discriminatory legislation, it could be argued that the federal government's response is anything but appropriate.

  The Human Rights Commissioner has concluded that Tasmania's laws are inconsistent with several specific rights which Australia has undertaken to protect by its ratification of the International Covenant on Civil and Political Rights. These are: the right to privacy, article 17; the right to non-discrimination, article 2.1; and the right to equality before the law and equal protection before the law.

  Thus, there are three possible approaches to overruling the obnoxious Tasmanian laws. The narrowest of the three is the right to privacy. However, it would appear that this is the approach adopted by the federal government. Clearly, it could not have done much less and retained any credibility for its claim that it stands for equality before the law for all Australians.

  The Human Rights Commissioner explained that one of the most fundamental provisions of the convention requires the rights recognised therein to be respected and ensured to all individuals within Australian jurisdiction `without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status'. In the commissioner's view, `this provision applies to discrimination on the grounds of sexual preference or sexual orientation affecting the rights recognised in the convention'.

  In addition to this right not to be discriminated against, the Human Rights Commissioner notes a further reason for the view that the Tasmanian law contravenes our international obligations. Article 26 of the convention states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.

As the Human Rights Commissioner points out, as with article 2.1 the grounds of discrimination enumerated in the second sentence of this provision clearly do not constitute an exhaustive list. Sexual preference is therefore not excluded because it is not specifically listed. Moreover, the first sentence of article 26 recognises the right to equality before the law and requires equal protection for all persons `without any discrimination'.

  It should be clear from all this that the government clearly had the power to enact the laws to comprehensively legislate against discrimination in all its forms and to ensure that no governments, state or Commonwealth, enact one law for some and another law for others. Such legislation would also have enabled progress in adjusting the age of consent to remove the inappropriate differential between heterosexual and homosexual behaviour in most states. However, it now appears that reform will continue on a piecemeal basis as evidenced by the government's foreshadowed legislation and by a successful amendment to the industrial relations legislation prohibiting discrimination in employment on the grounds of sexual preference. I wish the government had taken that as an example.

  In conclusion, it is disappointing that the Australian government has not had the courage to tackle the issue of equal rights for gay and lesbian people in a decisive way by introducing comprehensive legislation prohibiting discrimination on the grounds of sexuality. It is clear that there should be one law for all Australians and that we should not spuriously use the argument of so-called states' rights to override the rights of Australians, no matter where they live.