Encouraged by the euphoric allure of the annual Gay Mardi Gras celebration and the promise of recent international judicial and local parliamentary victories related to Tasmania, some people may consider Australia a haven whose citizens benefit equally from progressive legislation on issues of sexuality and transgender identity. Members of Gay and Lesbian Equality,Inc. in Western Australia, however, would seriously beg to differ--and actively seek international support in their battle for State legal reform.
Activists from the organization contend that Western Australia lags far behind the other Australian States and Territories in its maintenance of legislation blatantly discriminating on grounds of sexuality and gender identity. In Western Australia, the age of consent is 21 for male-to-male sex and 16 for all other forms of sex--making this the highest age of consent for male-to-male sex in Australia. Violators of this law face a jail term of up to five years, even in cases involving fully consenting sex in private. According to Brendon Entrekin, President of Gay and Lesbian Equality, this measure stands "in breach of the Federal Human Rights Sexual Conduct Act of 1994, which was based on the United Nations' ruling on Tasmania's gay laws and prohibits States and Territories from arbitrarily interfering with the right to privacy of adults over 18 having sex in private. The Western Australia government continues to be the only state in the country that maintains an age of consent higher than the age of adulthood of 18."
Entrekin refers to the landmark precedent for international human rights law established by the United Nations Human Rights Committee in Toonen v. Australia. On March 31, 1994, the Committee ruled that Australia stood in violation of the rights to privacy and non-discrimination on the basis of sex, as enshrined in the International Covenant on Civil and Political Rights, because of Tasmanian laws criminalizing all sexual activity between men. It is also relevant to note a more recent pronouncement of the Human Rights Committee regarding discriminatory age of consent laws in Austria: "The Committee considers that existing legislation on the minimum age of consent for sexual relations in respect of male homosexuals is discriminatory on grounds of sex and sexual orientation. It requests that the law be revised to remove such discriminatory provisions." (Concluding observations of the Human Rights Committee: Austria. 19/11/98. CCPR/C/79/Add.103)
Moreover, Western Australia is the only State in Australia which has no Equal Opportunity legislation offering protection from discrimination for sexual minorities, rendering it legal to refuse housing, employment, goods and services, membership, and other services on the grounds of a person's sexuality or gender identity. In early January, two men who live together as close friends, but who identify as heterosexual, were told they had no recourse to redress years of harassment, vilification, and bullying suffered at work because of the perception that they were gay. Because discrimination on the grounds of sexuality is not prohibited under Western Australian law, the Equal Opportunity Commission does not hold the jurisdiction to hear the case.
Although Western Australia partially decriminalized homosexual sex in 1990, its legislation maintains a preamble that states Parliament's disapproval of relationships between persons of the same sex, of institutions encouraging same-sex relationships, and of the involvement of homosexuals in the care of children where homosexuality is portrayed in a positive light. The same legislation also contains a "proselytising" clause, based on Britain's notorious "Section 28," which attempts to ban public actions and teaching in primary or secondary schools which portray homosexuality in a positive light. According to Entrekin, "Western Australia, once again, is the only Australian State that has a proselytising clause such as this."
Gay and Lesbian Equality's activism on the State level is especially pertinent, given the limitations of Federal anti-discrimination laws and inertia surrounding their reform. With the exception of limited protections against unfair dismissal for Federal employees on the grounds of sexual orientation--measures which do not apply to State-based employees--Federal legislation in Australia prohibiting discrimination on the grounds of sexuality or transgender identity is notably lacking. The Australian Democrats have introduced a bill into the Federal parliament which would create Federal anti-discrimination protection on the grounds of sexuality and transgender status. The bill has not yet received a voting in the Senate, where it was first introduced, and has languished in delays for over four years. "The conservative Federal government has shown little regard for sexuality-related legislation and is unlikely to support reform on the Federal level," says one member of Gay and Lesbian Equality, citing the need to focus its attention on local fronts. Efforts undertaken during the past four years toward a High Court or Federal Court challenge to the discriminatory age of consent laws in Western Australia have also proven unproductive. "The costs associated with this approach and finding plaintiffs who could face possible jail sentences, has made things difficult. Even a High Court victory would only effectively make the age of consent 18, and not equal with everyone else," says Entrekin.
Activists from Gay and Lesbian Equality urgently seek support for the Sexuality Discrimination Bill, introduced in the Western Australia State Parliament by the Australian Democrats in 1997. The Bill, vigorously opposed by the Conservative government, seeks to equalize the age of consent at 16 for everyone, to amend the Equal Opportunity Act to include sexuality and transgendered identity in its protections, to repeal the homophobic preamble and proselytising clause of the 1990 decriminalization law.
Activists ask for letters of support, citing Western Australia's glaring lack of human rights protection for sexual minorities and the mentioning the urgent need for sexuality-based legal reform, to be sent to the following addresses:
- The Honorable Richard Court
Premier of Western Australia
- 24th Floor
197 St. Georges Terrace
Perth, WA 6000
- The Honorable Peter Foss, QC
Attorney General, Western Australia
- 12th Floor Dumas House
2 Havelock Street
Western Perth, WA 6005
Please send copies of letters to:
- Gay and Lesbian Equality (WA), Inc.
- P. O. Box 420
Northbridge, WA 6865
Published on February 1, 1999 | OutRight Action International an LGBT human rights organization