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Legal and Constitutional Affairs Legislation Committee
23/01/2013
Human Rights and Anti-Discrimination Bill 2012

GARDINER, Mr Jamie, Vice President, Liberty Victoria

GOLDNER, Ms Sally, Treasurer, The Victorian Gay and Lesbian Rights Lobby Inc

IRLAM, Mr Corey Brian, Member, The Victorian Gay and Lesbian Rights Lobby Inc

TAYLOR, Ms Jessie, Senior Vice President, Liberty Victoria

Committee met at 0 8:51

CHAIR ( Senator Crossin ): I declare open this public hearing for the Senate Legal and Constitutional Affairs Legislation Committee's inquiry into the exposure draft of the Human Rights and Anti-Discrimination Bill 2012. The bill seeks to simplify and clarify the existing anti-discrimination framework by consolidating the existing Commonwealth anti-discrimination legislation into a single act.

The inquiry was referred by the Senate to the committee on 21 November 2012. The reporting date for the inquiry is 18 February 2013. The committee received a large volume of submissions for this inquiry and due to resource constraints has decided not to publish on its website every submission that it has received from individuals.

Today's hearing is open to the public and is being broadcast within Australia's Parliament House in Canberra and is also live on the website of the Parliament of Australia. A transcript of today's hearing will be placed on the committee's website when it becomes available.

I am going to invite witnesses to make a short opening statement of three minutes. Perhaps you could just succinctly give us your main arguments, and then of course we will go to questions. We already have your submissions; people will have read them. We are very limited on time because of the huge number of people we want to hear from today.

I do, though, want to remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to the committee. Such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to the committee.

You do know that we prefer that all evidence be given in public, but you do have the right to request that that evidence be given in confidence or in camera. You would just need to seek the permission of the committee if that is your requirement. If you do object to answering a question then you should state why you would not want to answer that question and the committee will determine whether we actually insist on an answer. If we do insist on an answer, you do of course have the right to provide that answer in camera or in confidence.

I now welcome representatives of Liberty Victoria and the Victorian Gay and Lesbian Rights Lobby. We have submissions from both of your organisations, which we have numbered 379 and 534, respectively. I will ask you both to make some opening statements, and then we will go to questions. Mr Irlam and Ms Goldner, we will start with you first. Thank you.

Ms Goldner : Good morning Senators, and thank you for your time. The Lobby welcomes the introduction of this bill, some 17 years after the first bill by Sid Spindler that attempted to deal with sexual orientation and gender identity was discussed in the Senate. It is a very pleasing moment to see the broad, multi-partisan commitments to the introduction of these laws following the 2010 election and that 85 per cent of Australians polled in 2009 indicated their support for these new attributes. In terms of the definition of sexual orientation, we broadly welcome the approach taken, and we very much welcome the inclusion of relationship status within the laws, a recommendation of this committee's inquiry in 2010.

As well as being involved with the Lobby as the author of submission 482 on behalf of TransGender Victoria, I am able to speak about the challenges of the current definition of gender identity for transgender Australians. The test of genuine basis adds complexity and unnecessary detail. Its retention in the bill would result in courts and commissions intruding unnecessarily in the lives of transgender people at a time of stress and may even run to counter the aim of reducing discrimination and its impact.

The proposed definition of gender identity does not sufficiently include mannerisms or expression, which may result in some transgender people not being protected. For those reasons, we prefer the definition currently before the Tasmanian parliament and note with great understanding that the creation of the draft bill was happening at the same time as the Tasmanian state amendments were being introduced.

By respecting the government's aim to include intersex Australians, we note that discrimination faced by intersex people is on the basis of physical differences and not on the basis of their identity. Accordingly, again, we support the Tasmanian definition and propose that the government introduce intersex as a unique protected attribute. This would not increase regulatory impact as it is already intended to be covered by the draft bill, and the explicit and easy-to-understand definition from the Tasmanian bill would reduce that regulatory burden. We note that the committee will be hearing from Organisation Intersex International Australia tomorrow in Sydney and broadly support their submission as one of the leading intersex organisations in Australia.

We note that the LGBTI grounds of sexual orientation, gender identity and the proposed attribute of intersex remain the key grounds that are not naturally associated with a function outlined for the specific commissioner. There is no longer a generic human rights commissioner. While we understand from the Attorney-General that the intention is that the president would fulfil the traditional role of human rights commissioner, we are concerned that this is not spelt out in the legislation. The lack of an explicit responsibility needs to be resolved, and we would discuss our preference for a specific commissioner to be appointed or funded. An alternative would be to reintroduce the human rights commissioner and assign those attributes to that role.

We would also urge the committee to amend the bill to state that those attributes are the responsibility of the president or other nominated commissioner to ensure that our issues remain included. We look forward to working with the committee to ensure that the quality of life—possibly the life itself—of LGBTI Australians is increased and that their health, happiness and ability to achieve their potential is enhanced by this law. I will hand over to Corey Irlam, who will speak to the issue of exemptions.

Mr Irlam : I will make it very quick, because of the time that we have available. When we are looking at exemptions today I would urge the committee to look at three different scenarios, the first being a person trying to access a government-funded service, the second being a person seeking employment by a religious body and the third being a student or parent enrolling into a faith based school. When we look at section 33 we need to consider its application in these three scenarios, for various reasons. We are concerned that the current proposal does not have a provision of transparency, meaning that LGBTI Australians, potentially pregnant women and a range of other Australians, do not know that they may face discrimination when accessing these services. This provision exists in South Australia and would enable thousands of people to know what they are walking into buying into that process.

I would also urge the committee to distinguish between the freedom of religion and the right to discriminate against people on the basis of sexual orientation and gender identity. Some may argue that this distinction is a furphy. But it is a very different message for the Australian parliament to send when looking at the way that we structure this bill. Indeed, within the religious community we have seen in the last week in the public media that there are people who want the right to discriminate and people who want the right to discriminate only in the area of employment. Reverend Peter Sandler from Anglicare South Australia said that Jesus never discriminated and nor should we.

Finally, we note for the committee's benefit that many religious submissions to the committee call for the retention of the status quo. In this regard, the SOGI exemptions, we must look to the state legislation. Here we find that almost all states have a narrower definition than what exists in the current bill being proposed. In Tasmania, there is no exemption. Rather, there is a provision to discriminate on the basis of religion. Again, that distinction between god versus gay and the right to have freedom of association and freedom of religion. In states such as South Australia, there is a requirement to have transparency by publishing your intention and policies. In Queensland, the Northern Territory and Tasmania there is an inherent requirements test. These all raise the bar for the exemption compared to what is currently in the bill. Thanks for your time.

Mr Gardiner : It is an honour and a privilege to be in this first session speaking to the committee at this first hearing of this important inquiry. Liberty Victoria, as you know, has had a very longstanding role in advancing and protecting human rights and civil liberties. We want to make it clear that we strongly support this bill, subject to some things that we have all said, and believe that it should be recommended to the government with appropriate amendments, brought back to the parliament and passed in the first half of this year. We are supporting this bill because the consolidation will make the anti-discrimination law in this country at the federal level simpler and clearer. It was claimed that it would do that, and it will. We support the fact that there are new attributes—in particular the attributes of sexual orientation and gender identity, which were promised before the last election and indeed endorsed by all sides of politics. This is a very good thing.

We are very supportive of the way in which the bill deals with intersectionality—the overlap of more than one attribute—which hitherto at the federal level has been an impossible tangle. That has real meaning for people whose real experiences cannot be brought before mediation or other mechanisms when they had to juggle more than one act and squeeze through more than one definition. We support the much more modern and much clearer definition of discrimination and the erosion of the artificial distinction between indirect and direct discrimination. They are all one part of disregarding the human right to equality.

We are very pleased to see, and urge a bit more of, better human rights integration. Anti-discrimination law is indeed, as this bill's title says, about human rights—the human right to equality—and our engagement with the human rights obligations that successive Australian governments over many years have ratified through human rights instruments. Indeed, Australia played an important role in the foundational Universal Declaration of Human Rights of 1948 when Australia chaired the General Assembly of the United Nations.

We are very pleased to see the acknowledgment of the existing common law understanding of harassment as being an essential and inevitable part of the notion of discrimination and the notion of unfavourable treatment. We will note some problems with the way that that has been drafted, but it is very important that in state law and in common law what we call harassment is already part of discrimination law.

Finally, I want to mention at this stage the important decision made in the drafting of this bill to exclude from the exemptions for religious bodies the provision of age care services to senior Australians, who vulnerable people. This is particularly important for lesbians, gay men and bisexual, transgender and intersex people who, if they are now in their 70s, 80s or 90s, have faced a lifetime of discrimination. It is about time it stopped when they are at their weakest in their final years. That is a very valuable improvement. As we have pointed out in our submission, that should be extended to more vulnerable people and more government funded services and indeed to employment as well. I now want to introduce my fellow vice-president, senior vice-president Jessie Taylor, who will address some of the things that we want to see improvements in. We appear before you representing quite a range of people. When we think about these things, we have a gay person, a straight person, a man, a woman, an atheist and a devout Christian. We miss out in terms of differentiation on race, I guess. Liberty is a very broad organisation. Its fundamental concern is about human rights. I will now hand over to Jessie Taylor.

Ms Taylor : I want to mention two main issues, one of which Mr Gardiner has already referred to. With regards to section 19(2), as Mr Gardiner has said, we welcome the acknowledgment of harassment as being a very important part of the framework of discrimination law and something that has been perhaps not given the acknowledgment that it requires up until now. However, we have some concerns about the wording of section 19(2)(b), including the fact that it features the words 'offends and insults'. That has the potential to trivialise the experience of people who have been subject to harassment and intimidation. We are slightly concerned as well that it brings over some of the more problematic language that has been grappled with in the context, for example, of the Racial Discrimination Act.

We also hope that perhaps more acknowledgment might be given to the subjective harm suffered by people as a result of discriminatory conduct. This means not only looking at the words spoken or written but also looking at the way that they are received and subjectively cause harm to a particular person.

The second thing that I will mention is the religious exemptions. We acknowledge that there are some valid circumstances in which an exemption ought to be allowed—for example, where a particular role has at its core the doctrine of a particular organisation, such as a minister or a teacher of religion. We would not argue against an exemption in that context. However, we are concerned about discrimination where a role being performed has no doctrinal centrality and relevance. We also, as Mr Gardiner has said, would like to see the way that aged care is now to be treated extended to other services and areas that share common features with aged care—for example, caring for and providing services to people who are very vulnerable. More often than not, these services are taxpayer funded. We would like to see that treatment extended to other services that share the same features as aged care.

We would also like to see transparency and accountability in the way that exemptions are managed such as through a licence model, for example, which was referred to in an earlier submission from Liberty Victoria and which we would be happy to answer any questions about.

Senator BRANDIS: My question is to the witnesses from Liberty Victoria. I largely agree with your submission. But I am bound to say that I am disappointed that you take such a Latin America e view of the threat that the provisions in relation to offence and insult pose to freedom of speech. We do not have time today to engage in some kind of academic argument about the relative importance of equality and liberty. But it disappoints me that Liberty Victoria is not more aggressively defensive of liberty of opinion and liberty of speech, which inevitably is going to potentially offend or even insult people. That having been said, you do, in paragraphs 27 through to 29 of your submission, recommend that clause 19(2) of the bill, which contains these words, be redrafted. Let us just be clear about this. Is it the position of Liberty Victoria that the words 'conduct that offends, insults' should not be part of this bill?

Mr Gardiner : Effectively yes, although there are other things that we would suggest as different ways of redrafting that. The point that we made—

Senator BRANDIS: Sorry, Mr Gardiner; I don't mean to interrupt you, but just cutting to the chase here: are you saying that they should be removed and that's it, so that the test is 'intimidates', or are you saying that they should be replaced with other words, and, if so, what?

Mr Gardiner : The difficulty with a question like that is that it cuts off my options, and I would like, with respect—

Senator BRANDIS: Well, I am trying to cut off the option. I am trying to bring you to a conclusion.

Mr Gardiner : The idea of the issue of harassment is really one of the question of how harm is caused, quite simply, from the dictionary definition. But the issue, where it is to be dealt with, especially as a free-floating issue rather than simply as a subset of discrimination, is that it should be more dilated by the question of harm. Words like 'intimidates', but also words like 'threaten' and—

Senator BRANDIS: Section 18C of the Racial Discrimination Act, as you know, also uses the word 'humiliates', which is not taken up here; I don't know why.

Mr Gardiner : The critical thing, as we said in our submission, is that, if a section like 19(2)(b) is to be retained, it should be explanatory and it should use words of sufficient seriousness and of objective harm. We have canvassed this issue in other submissions—definitely in the submission to the Attorney-General's Department, which I don't know whether you have got, but, if you have not, we will table it and give a copy to the secretariat. In that submission, we discussed in some detail the importance of referring to objective harm in this context, or what became this context. Obviously we were not dealing with a draft at that stage.

The notion of objective harm has to involve not subjective words like 'offend' and 'insult' but where conduct, including words, spoken and written, are known to cause harm, in particular on the basis of an attribute. It has to take into account not just what is done or said but the attribute and the history of discrimination suffered by people of that attribute. In the earlier submission, we specifically referred to how homophobic harassment leads schoolchildren—children generally, but they happen usually to be at school—to develop serious doubts about their own place in the world and pushes a higher proportion of young people into self-harm and indeed attempted and completed suicide than among any other group, with the possible exception of Indigenous people.

So the role of discrimination, the role of harassment—not necessarily directed exactly to the person but more generally on their attributes in relation to experience of discrimination in discriminated against groups—is one that is objectively, and established by scientific evidence to be, seriously harmful. This is known. So, if this is to be redrafted rather than just dropped out, it needs to make some reference to those issues of the causing of harm.

Senator BRANDIS: But, Mr Gardiner, it does. I am very conscious of the time, so I will be quick. As I understand you, you agree with me that 'offend' and 'insult' should be dropped out but, as I understand you, you would not like to see us or the bill lose the concept of harassment as a prohibited category of unfavourable treatment. But that is already dealt with in clause 19(2)(a). Clause 19(2)(a) identifies harassment as a category of unfavourable treatment. Clause 19(2)(b) identifies 'conduct that offends, insults or intimidates' as a category of unfavourable treatment. Clause 19(2)(b) does not define the meaning of 19(2)(a); they are separate categories. So, if we lose the words 'offends' and 'insults', we do not lose 'harass' as a category of prohibited treatment, because that is still there in 19(2)(a).

Mr Gardiner : I agree, but I am keen to place on the record our concerns about the issues of drafting around the question of objective harm, which may not need to be put in at all in this context but is something that the committee may want to give attention to when thinking about this or related issues around harassment.

Senator BRANDIS: Sure. But, in any event, for you the governing concept is harm or what you call 'objective harm'.

Mr Gardiner : Yes.

Senator BRANDIS: That, I presume, would include psychological harm.

Mr Gardiner : Yes.

Senator BRANDIS: But it could not, surely, go so far as merely to include what people sometimes loosely call 'hurt feelings'—that is, a sense of offence.

Mr Gardiner : I agree.

Senator BRANDIS: Thank you.

Senator PRATT: I would like to ask a question about exemptions, noting of course that the explanatory notes to the bill say:

… to enable consideration of whether these specific exceptions are still necessary, taking into account the operation of the new … justifiable conduct exception.

So, in asking about exemptions, I would like to ask, and I might ask both organisations to comment, about, if you like, the experience of people who might be turning up to use a particular service and some of the differences between, I suppose, organisations that may be branded as having a particular ethos because they are readily identifiable as having a religious affiliation—for example, an Anglican school—and someone who turns up to, for example, Employment Plus not knowing that it is under the auspices of the Salvation Army. So I suppose I would like you, if you can, to distinguish what you mean by the need to clarify exemptions.

Mr Irlam : Certainly, Senator. I think it is a really important point, because what we see is an everyday Australian walking into, in your example, Employment Plus, referred to them by Centrelink and most likely unaware that it is run by the Salvation Army. They are accessing that service. Everything goes fine. One day they come in with their same-sex partner. The person feels uncomfortable: 'Sorry, we can no longer provide this service to you.' The reason that that can occur is the exemption in proposed section 33, and it occurs more often than not on an ad hoc basis. There is no blanket process. There is no checkpoint at the beginning of entry. You are halfway through and something happens. Arguably it occurs when there is some other reason that means it is not quite so easy to deal with this person. Proposed subsection (2)(b) of proposed section 33, talking about religious sensitivities, is an 'or'. It is two categories; it is not one, saying you need to have a doctrine plus religious sensitivities. So therefore it could come down to any individual working for or accessing that service offended by a same-sex couple over there, and hence this comes in. Given that, for example, in Alice Springs in the Northern Territory, 100 per cent of aged care services are run by a religious organisation, given that a number of public hospitals are run as a public hospital by a faith based organisation in regional and rural areas around Australia and given the multitude of billions of dollars put into government funded services, this is a distinct problem not only from a geographical area but also from a capacity area, where you may not be able to access anybody other than a faith based service.

Senator PRATT: In that context: clearly, these organisations employ and service hundreds of thousands of Australians who may be unmarried women, who may be gay or who may be transgender. On a day-to-day basis they are probably not, in the main, being discriminated against. How is it that that cannot be upfront in that clarity about whether they are likely or unlikely to suffer some discrimination?

Mr Irlam : It certainly can happen. It happens in South Australia today. In order to access the religious exemption provision it is a requirement for you to publish the policy in a publicly accessible way. We would suggest that the committee should go one step further and make sure that that is an explicit reference to the act, because what can often be used are things like 'Christian values'. Now, 'Christian values' is a very contentious term because various organisations have different values that sometimes apply within the one situation.

For example, this committee has received a submission from Anglicare Sydney, saying, 'We don't agree with religious submissions,' yet we have seen in the public domain Anglicare Australia and Anglicare South Australia coming out and saying, 'We don't want to discriminate in the access of service provision'. How does a person know which Anglicare you can walk into and which one you cannot?

Senator PRATT: That is a very good question, thank you.

Senator BRANDIS: It shows you the morality of the Anglican Church.

Senator PRATT: Indeed!

Mr Irlam : It goes across the board.

Senator PRATT: Perhaps Liberty Victoria could comment on that as well?

Mr Gardiner : First of all you referred to the general exception, and as a fundamental principle we would agree with that. It is the only thing that should apply. As my colleague said at the beginning: in relation to core religious training, observance and celebration, we have no problems with bona fide occupational qualification. For everything else, we agree, obviously, with what Corey Irlam has just said, and we draw attention to the fact that a blanket exemption is, of course, inconsistent with international human rights law—and you are considering this in that human rights framework. A blanket exemption tars the good with the bad. Anglicare South Australia does not want to be tarred, for example, with the bigot's brush that this exemption currently uses. At the very least, something like the South Australian scheme or the more detailed scheme that Liberty referred to in our submissions would be essential.

We have here—and we are happy to provide to the committee—two examples of religious leaders. One is Anglican, the Rev. Peter Sandeman, whom Corey Irlam referred to, and one Joumanah El Matrah, a devout Muslim. They do not want these religious exemptions to apply to them. From our submission, the law should not label progressive human rights-respecting religious bodies with the narrow views of some. In our view, there should be no religious exemptions except for those core things. But we know perfectly well—we are political realists, that is the role we have always taken—that doing it all in one go is probably beyond the realm of political possibility. But there should be at the very least an extension, as Jessie said before, to government funded services.

There is no ground whatsoever whereby the Commonwealth should be able to outsource its responsibility to obey its own laws to bodies that refuse to obey those laws and insist that they are above the law. We know the results of allowing bodies to think that they are above the law; we have a royal commission coming up into that, and we do not want to see that again.

So no government funded body should be able to add their level of discrimination to the Commonwealth's own responsibilities. And, of course, the age care service provisions, which is an admirable advance, should be extended to all services for vulnerable people—young people, old people, people with disabilities, people in remote communities. It should be extended to people with all sorts of issues.

And, critically, after whatever you end up recommending to the government and after the government decides—it is not your role, of course, to second guess the government—what remains must be open and transparent. And, as Mr Irlam said, it must be specific with no vague reference to religious values: 'In this service we discriminate on the basis of marital status—against unmarried women, or pregnant unmarried women, or sexual orientation—in this way.'

Mr Irlam : It is our Christian faith.

Mr Gardiner : Yes.

Senator WRIGHT: Good morning. I would like to be really clear on that particular issue that you are raising. You have talked about the religious exceptions and exemptions and the effect that they have. I will ask Mr Irlam and Ms Goldner first of all: to what extent do you think that the general justification defence—which is then based on an absolute clarity of principle in terms of establishing why there should be an exception on a case-by-case basis perhaps—could be improved and used in place of permanent exceptions such as those applying to religious organisations in schools?

Mr Irlam : It is very open to being able to use the broader defence, justifiable conduct exemption. I am not sure that politically and publicly it will go down to completely removing religious exemptions but perhaps the appropriate way to include that concept would be to put in a justifiable conduct clause within the religious exemption. I think the easier transparency option that we are proposing would make the public aware. It is not something that necessarily needs to be approved by the Human Rights Commission. It is something that you can just publish and lodge. Given that companies produce policies and publications left, right and centre—whether it be a job description or a service brochure—the regulatory burden should be negligible.

I would note, for the committee's reference, that the regulatory impact statement that was not on your website but was on Attorney-General's discusses what we are proposing as option 3 within its religious exemption in some detail. However, it comes to the conclusion that it is unable to identify the number of religious bodies who do discriminate and therefore cannot interpret the regulatory burden. I would argue that that is a fairly weak justification for not going down that option.

Mr Gardiner : What I will say is, 'Hear, hear!' On the more general questions you ask about whether or not a general exemption should do for everything, in a sort of purist drafting world one would say, 'Yes.' But the reality is that it helps the clarity and usability of legislation to point out the obvious. So, where there are exceptions—and there are exceptions—that are clear examples of the justifiable conduct exemption, you might as well say them out loud. But a blanket religious exemption is not one of those. It is one, in fact, that is there because it is not justifiable. And that is the difference.

Senator WRIGHT: Interesting! One of the ironies that strikes me—I certainly think the exception for aged care services has been welcomed by many—is that while there may be a requirement that a religious service provider has to make the accommodation available to people, for instance who are gay, they have the right not to employ people within their service. So essentially it seems to me that there is going to be a real dissonance, potentially, in terms of the values or the sense of comfort or welcome that someone who is required to be accepted there is going to feel if they are aware of a policy whereby the staff cannot be—

Mr Irlam : I think you are right. However, the challenges is that if you look at the position of an organisation like the UnitingJustice, which is shared by many of the progressive faith based churches—this is what I see from my conversations with them, anyway—you find that what they are calling for is an exemption for senior management positions, where there is an inherent requirement to lead the organisation with that faith. They are not calling for it to apply to the gardener in the school or the $15-an-hour PCA in an aged care facility.

How you draft that, though, might be challenging, so it seems that the Attorney-General's Department just have to do a blanket for all employment. I think that they could probably have a little bit more time to figure out how to do what Uniting Justice is talking about where there is an inherent requirement or for leadership positions that that clause would only apply to it then, because you do need to have the employees of an organisation to help create the culture of an organisation to make it a safe and inclusive welcoming environment for those people accessing the service.

Ms Taylor : Liberty Victoria supports protection from discrimination in contexts such as aged care and those to which we believe should be extended or it to be given not only to the recipients of those services but also to the people delivering them. So where there is not perhaps what can be called a core leadership or values based role if you are delivering medication or taking out rubbish or cleaning or nursing or whatever it might be, dependent on the philosophy of an organisation, if I can put it that way, then the people providing those services ought also to be protected from discrimination on the basis of whatever attributes might be relevant to them.

Ms Goldner : I wanted to add to Mr Irlam's remarks. In terms of people accessing service provision, particularly young people, if they are accessing a service and by chance they come across a person who is gay, lesbian, bisexual, transgender or intersex, that can be a huge boost to them, a sense of relief that improves their mental health. Let us say it as an employment service. It can help them get back into work more quickly, which means the service is more effective and it is more effective use of taxpayers' money. To have that openness of the staff is a real boost for those people and those services.

Senator WRIGHT: In relation to the intersex issue, Ms Goldner and Mr Irlam, you support the proposal to include intersex status as a separate protected attribute. You also support, I think, the definition that is used in the bill that is before the Tasmanian parliament—

Mr Irlam : It passed the lower house and is currently before the upper house.

Senator WRIGHT: Can you explain briefly why you would say that it is necessary to have it as a separate protected attribute and why you support that definition in particular?

Ms Goldner : Certainly. Intersex is more an issue of differentiation in bodily sex as distinct from the issue of identity, which is perhaps a little more intangible. They are separate issues. It is why, for example, the organisation Transgender Victoria, with which I am also involved, does not represent intersex. We cannot claim to have that specialised area of expertise. It is necessary to recognise those differences. The Tasmanian definition also gives a fuller degree of coverage to intersex people than the current wording which is based on state or territory definitions. We also point out that the New South Wales Anti-Discrimination Board's opinion after investigating current definitions has found that the current definitions used in state and territory law do not cover intersex people. We would again defer to the organisation Intersex Internationale for further detail tomorrow.

Mr Irlam : Can I put that in context for you. The current definition before the bill is similar to the New South Wales provision. If you take the example of a woman, born a woman, legally a woman, identified as a woman, walks into Fernwood gym, has what appears to be in the change rooms a small penis because of their intersex differences and is asked to no longer attend that gym. In this situation it is not about their gender identity, is about their physical differences. That is why the proposed definition in Tasmania is more appropriate.

Senator WRIGHT: I think we do need some concrete context because it is not something that many people have very much knowledge about.

Mr Irlam : It has taken me years to get my head wrapped around it and I still do not have it.

CHAIR: I thank the four of you for your attendance this morning and your two organisations for your submissions. I know the time has been short but, as you see, we have got a lot of material. If we need to we will come back to you but our time is pretty short. You have been of great assistance. Thank you very much.