05 May 2011

AHRC and discrimination

The Australian Human Rights Commission has released its 67 page consultation report on Protection from discrimination on the basis of sexual orientation and sex and/or gender identity in Australia [PDF].

The consultation concerns how protection from discrimination on the basis of sexual orientation might be included in federal law. The report notes that -
Very few protections from discrimination on the basis of sexual orientation exist in federal law.

The Commission can inquire into and attempt to conciliate complaints of discrimination on the basis of 'sexual preference' in employment and occupation. However, if a complaint is not able to be resolved through conciliation, all the Commission is able to do is to issue a report to the federal Attorney-General which is tabled in Parliament. There is no avenue to seek a tribunal or court hearing about discrimination of this kind. Commission recommendations are not enforceable.

Since the 1990s, federal industrial law has included limited protection from discrimination in employment on the basis of 'sexual preference'. The Fair Work Act 2009 (Cth) now prohibits discrimination on the basis of an employee's 'sexual preference' in relation to all aspects of employment, from hiring, to promotion and training opportunities, and to dismissal. The Fair Work Act also refers to discrimination on the basis of 'marital status' rather than using 'relationship status’ which would include people in same-sex relationships.

The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of 'sex'. Arguments that discrimination against lesbians and gay men on the basis of sexual orientation is a form of sex discrimination under the Sex Discrimination Act have been explicitly rejected by Australian tribunals and courts.

The Sex Discrimination Act also prohibits discrimination on the basis of 'marital status', however this does not cover same-sex relationships. The Commission has recommended that this ground of discrimination should include same-sex relationships. A Senate inquiry report has also recommended that the term 'marital status' be replaced with 'marital or relationship status' which would include people in same-sex relationships.
It goes on to comment that -
Equality for people of all sexual orientations and sex/and or gender identities is supported by international human rights agreements which Australia has agreed to observe. Taking steps to achieve such equality is the responsibility of the federal government. For this reason, the Commission is particularly pleased by the Government's commitment to introduce federal protections from discrimination on the basis of sexual orientation and sex and/or gender identity. ...

There are significant gaps in the legal protection from discrimination on the basis of sexual orientation and sex and/or gender identity at the state and territory level and almost no protections at the federal level. This consultation has clearly demonstrated the need for comprehensive protections. The stories of discrimination, vilification and harassment, and the explanations of the potential benefits of new protections from discrimination, were compelling.

The belief that federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity would lead to cultural change was a common theme of contributions to the consultation. The consultation heard widespread support for the inclusion of protection from discrimination on the basis of sexual orientation in federal anti-discrimination laws. The consultation also heard of the importance of ensuring that people of all sex and/or gender identities are protected from discrimination by the use of broad and inclusive terminology in federal anti-discrimination law. State and territory laws provide incomplete and inconsistent protection from discrimination in this area. A number of consultation participants expressed support for including protection on the basis of sex characteristics, gender identity and gender expression in order to achieve the broadest coverage of people of all sex and/or gender identities. The Commission also heard of the need to ensure that people who are intersex are expressly included in legislative protections from discrimination.

The consultation also heard of alarming levels of violence and harassment, particularly towards trans and intersex people. The Commission encourages the Government to give consideration to providing appropriate protections from vilification and harassment on the basis of sexual orientation and sex and/or gender identity in federal anti-discrimination law.

The Commission acknowledges that a small number of participants did not support the inclusion of protection from discrimination on the basis of sexual orientation and sex and/or gender identity in federal law. Some participants argued that there should be exemptions to laws prohibiting discrimination on these bases, particularly for religious organisations. Determining the extent of any exemptions must involve careful balancing of the right to be free from discrimination with the right to freedom of religion and belief. The Commission's view is that there should be further consultation and careful consideration of this issue.

Federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity would send a powerful message to our community regarding equality. The Commission supports the introduction of such laws, which could have a profound impact on reducing discrimination, vilification and harassment experienced by LGBTI people in Australia.
Recurrent (and often rather plaintive) reporting on human rights abuses makes me nostalgic for the bravery of Lionel Murphy, who was prepared to empower the Australian Law Reform Commission and to initiate legislative change that we now accept as both valuable and overdue.


Noted the provocative 'Lolicon: The Reality of 'Virtual Child Pornography' in Japan' [PDF] by Patrick Galbraith in 12(1) Image & Narrative (2011) 83-119.

Galbraith argues that -
As its popular culture rapidly disseminates around the world, there is increasing pressure on Japan to meet global standards for regulating child pornography, and certain types of purely fictional images have been implicated. One of the keywords is lolicon (or rorikon), used to describe manga, anime and games that feature "underage" characters in sexual and sometimes violent situations. This paper examines the large and long-standing community of fans (among those referred to as otaku) in Japan who produce and consume lolicon works to question the assumptions of media effects. In recent debates in Japan, proponents of new legislation, which was eventually adopted, argued that sexual and violent representations in manga and anime should be specially regulated because such content is "the same for whoever reads or watches and there is only one way to understand it". However, a review of lolicon culture suggests that messages and receptions are, and have always been, much more varied and complex. Even the relation between fiction and reality is not at all straightforward. Responding to the new legislation, Fujimoto Yukari comments that manga and anime are "not always about the representation of objects of desire that exist in reality, nor about compelling parties to realize their desires in reality". From a legal standpoint, no identifiable minor is involved in the production of lolicon and no physical harm is done. There is no evidence to support the claim that the existence of lolicon, or engagement with such content, encourages "cognitive distortions' or criminal acts. As Mark McLelland argues, criminalizing such material represents a form of "thought censorship" and a trend towards the "juridification of imagination". This potentially might shut down alternative spaces of imagination and communities negotiating or opposing dominant cultural meanings.
One response might be that Australian law traditionally - and in my view, on occasion appropriately - "juridifies" the imagination. Although we cannot prohibit thought we can as a society signal through restrictions on expression that that some acts are egregiously repugnant. That may involve shutting down some online or offline "alternative spaces of imagination and communities negotiating or opposing dominant cultural meanings".

03 May 2011

Art and defamation

In Gant v The Age Company Ltd and Ors [2011] VSC 169 the Supreme Court of Victoria has made rulings on a defamation case that art trader Peter Gant brought against The Age, Wendy Whiteley and Stephen Nall regarding alleged imputations made against Gant in five articles, including imputations that Gant sold artworks that he knew to be fake.

The majority of the imputations were struck out and it was found that the cause of action in respect of the first article was statute barred under the Limitation of Actions Act 1958 (Vic) ss 5(1AAA) and 23B.

01 May 2011

Genetic Privacy

Past posts in this blog have noted concerns regarding weakening of Australia's national privacy regime through the Public Interest Determinations 11 and 11A under the Privacy Act 1988 (Cth).

Those concerns were reflected in a submission to the Privacy Commissioner, an entity that apparently decided to place its trust in the National Health & Medical Research Council, and in a co-authored article - 'Relatively Speaking: Genetic Privacy and Public Interest Determinations 11 and 11A under the Privacy Act 1988 (Cth)' - in 7 Privacy Law Bulletin (2010) that highlighted substantive concerns regarding both principle and practice.

I was thus delighted to see 'Doctors breaching patient privacy: Orwell redux' by David J Handelsman, Leo A Turner & Ann J Conway in 194(8) Medical Journal of Australia (2011) 403-404. For me it is more persuasive than 'Alerting Genetic Relatives to a risk of serious inherited disease without a patient's consent', the editorial by Graeme Suthers, Elizabeth McCusker & Samantha Wake at 385-386 in the same journal.

Handelsman et al comment that -
The other legal assault on privacy is highlighted in a recent update of the National Health and Medical Research Council (NHMRC) guidelines on medical genetic testing. These guidelines endorse a recent amendment to Commonwealth privacy legislation that widens the legal exemption allowing disclosure of patients’ genetic information to others, even against a patient’s wishes. Rarely, the situation arises where a patient is unwilling to inform relatives of a genetic test result that, in a doctor’s opinion, should be disclosed. Such disclosure was previously only permitted to resolve an imminent danger to another person’s health. After the previous exemption for imminent medical danger created a precedent, a recent amendment has removed the requirement altogether. In effect, this now creates genetic testing without consent by proxy — a situation where the relative may be informed, against the patient’s wishes, of the patient’s genetic status without the relative soliciting the information and possibly without wishing to know.

The arbitrary nature of this new standard is illustrated by its vague boundaries — only a "serious threat to life, health or safety" extending to “third-degree relatives” is required to override the patient’s denial of consent. The NHMRC guidelines even encourage not disclosing that the original genetic testing occurred, piling dishonesty upon breach of faith. The widened loophole creates an elastic legal excuse for the well meaning (but impatient) to breach individuals' privacy. This disavowal of patient confidentiality at a doctor's sole discretion has the net effect of allowing one individual's subjective, value-laden judgement, triggered by any remote threat to health or welfare, to override a patient's refusal of consent. Inevitably, unintended perverse outcomes should be expected — bringing to mind the legal maxim "hard cases make bad law".

In practice, this loophole will encourage the taking of the lazy path of legal coercion rather than gradual persuasion and ultimate acceptance of a patient’s decision. If forced disclosure is really required, such a momentous breach of a patient’s expressed wishes in the absence of genuine life-threatening circumstances should require approval from an independent legal tribunal, a standard well established for surgery on children whose parents refuse consent, or for sterilisation operations or other major elective procedures for those unable to consent.

... these legislative assaults on privacy reflect the fashionable belief in genetic determinism prevailing over any ethical, moral and legal constraints of everyday life. But ditching the trusted confidentiality of medical information for doctors’ convenience or to satisfy lobby groups permits arbitrary and damaging intrusion on personal liberty — the price of which remains eternal vigilance.