Human rights in Australia

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Human rights in Australia have largely been developed under Australian Parliamentary democracy through laws in specific contexts (rather than a stand-alone, abstract bill of rights) and safeguarded by such institutions as an independent judiciary and High Court which implement the Common Law, the Australian Constitution and various other laws of Australia and its states and territories. Australia also has an independent statutory human rights body, the Australian Human Rights Commission, which investigates and conciliates complaints, and more generally promotes human rights through education, discussion and reporting.

Australia Country in Oceania

Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania and numerous smaller islands. It is the largest country in Oceania and the world's sixth-largest country by total area. The neighbouring countries are Papua New Guinea, Indonesia and East Timor to the north; the Solomon Islands and Vanuatu to the north-east; and New Zealand to the south-east. The population of 25 million is highly urbanised and heavily concentrated on the eastern seaboard. Australia's capital is Canberra, and its largest city is Sydney. The country's other major metropolitan areas are Melbourne, Brisbane, Perth and Adelaide.

Bill of rights Proclamation of fundamental rights to citizens of a polity

A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and private citizens.

High Court of Australia supreme court

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Contents

Universal voting rights and rights to freedom of association, freedom of religion and freedom from discrimination are protected in Australia. The Australian colonies were among the first political entities in the world to grant male (1850s) and female suffrage (1890s). Contemporary Australia is a liberal democracy and heir to a large post-World War II multicultural program of immigration in which forms of racial discrimination have been prohibited.

Universal suffrage Political concept

The concept of universal suffrage, also known as general suffrage or common suffrage, consists of the right to vote of all adult citizens, regardless of property ownership, wealth, income, race, or ethnicity, subject only to minor exceptions. In its original 19th-century usage by political reformers, universal suffrage was understood to mean only universal manhood suffrage; the vote was extended to women later, during the women's suffrage movement.

Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membership based on certain criteria. Freedom of Association, The Essentials of Human Rights describes the right as coming together with other individuals to collectively express, promote, pursue and/or defend common interests. Freedom of Association is both an individual right and a collective right, guaranteed by all modern and democratic legal systems, including the United States Bill of Rights, article 11 of the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of the Universal Declaration of Human Rights and article 22 of International Covenant on Civil and Political Rights. The Declaration on Fundamental Principles and Rights at Work by the International Labour Organization also ensures these rights.

Freedom of religion freedom practicing of religion

Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. It also includes the freedom to change one's religion or beliefs.

As a founding member of the United Nations, Australia assisted in the drafting of the Universal Declaration of Human Rights and it is signatory to various other international treaties on the subject of human rights. Australia is the only democratic country in the world without a national bill of rights of some kind. [1] Racism in Australia traces both historical and contemporary racist community attitudes, as well as political non-compliance and alleged governmental negligence on United Nations human rights standard [2] and incidents in Australia.

United Nations Intergovernmental organization

The United Nations (UN) is an intergovernmental organization tasked with maintaining international peace and security, developing friendly relations among nations, achieving international co-operation, and being a centre for harmonizing the actions of nations. It was established after World War II, with the aim of preventing future wars, and succeeded the ineffective League of Nations. Its headquarters, which are subject to extraterritoriality, are in Manhattan, New York City, and it has other main offices in Geneva, Nairobi, Vienna and The Hague. The organization is financed by assessed and voluntary contributions from its member states. Its objectives include maintaining international peace and security, protecting human rights, delivering humanitarian aid, promoting sustainable development, and upholding international law. The UN is the largest, most familiar, most internationally represented and most powerful intergovernmental organization in the world. At its founding, the UN had 51 member states; there are now 193.

Universal Declaration of Human Rights Declaration adopted in 1948 by the United Nations General Assembly

The Universal Declaration of Human Rights (UDHR) is a historic document that was adopted by the United Nations General Assembly at its 183rd session on 10 December 1948 as Resolution 217 at the Palais de Chaillot in Paris, France. Of the then 58 members of the United Nations, 48 voted in favor, none against, eight abstained, and two did not vote.

Racism in Australia traces both historical and contemporary racist community attitudes, as well as political non-compliance and governmental negligence on United Nations human rights standard and incidents in Australia. Contemporary Australia is the product of multiple waves of immigration, predominantly from the United Kingdom and Ireland.

An ongoing human rights issue in Australia is the legacy of mistreatment of indigenous Australians, who are disproportionately of disadvantaged socioeconomic standing, have shorter life spans, and make up a disproportionately high number of imprisoned persons, thus receiving disproportionately high levels of social welfare payment as well as preferential employment and tertiary educational placement in state sectors. In 2016–17, the estimated direct expenditure per person was $44,886 for Aboriginal and Torres Strait Islander Australians, which was around twice the rate for non-Indigenous Australians ($22 356). [3]

Indigenous Australians are the Aboriginal and Torres Strait Islander peoples of Australia, descended from groups that existed in Australia and surrounding islands before British colonisation. The time of arrival of the first Indigenous Australians is a matter of debate among researchers. The earliest conclusively human remains found in Australia are those of Mungo Man LM3 and Mungo Lady, which have been dated to around 50,000 years BP. Recent archaeological evidence from the analysis of charcoal and artefacts revealing human use suggests a date as early as 65,000 BP. Luminescence dating has suggested habitation in Arnhem Land as far back as 60,000 years BP. Genetic research has inferred a date of habitation as early as 80,000 years BP. Other estimates have ranged up to 100,000 years and 125,000 years BP.

Sources of rights

As Australia does not have a Bill of Rights to implement all international human rights, some states have implemented their own charters. [4] For example, in Victoria [5] and in the ACT. [6] As such, other sources of rights exist to protect rights in Australia (the Constitution, through statutes, common law, and through implementation of international treaties).

Australian Constitution

Human rights are protected under the Australian Constitution in several ways:

In addition, as a result of certain structural implications and principles, the Constitution protects human rights indirectly through several means, including:

Statutes

Human rights are protected through various statutory enactments in a broad variety of specific contexts. For example, there are statutes which prescribe and regulate police powers, [12] use of personal information, [13] secret recording of conversations, [14] equal treatment when buying goods and services, [15] consumer rights, [16] and many other statutes.

Common law

The common law of Australia protects rights indirectly through various causes of action (such as in contract, tort, and property rights). The common law also protects human rights through principles of statutory interpretation. One example is found in Gleeson CJ's statement that it is presumed that it is not Parliament's intention to remove a fundamental human right(s) or freedom(s) unless such an intention is outlined and manifested by clear language. [17] This is known as the principle of legality which acts as an extra layer of protection for human rights against vague or ambiguous legislation. Furthermore, Former Chief Justice of New South Wales, James Spigelman, has compiled a list of a number of rights-depriving acts which the common law presumes the legislature does not intend without clear wording, including retrospectively changing rights and obligations, infringing personal liberty, interfering with freedom of movement or speech, restricting access to the courts, interfering with vested property rights, and denying procedural fairness. [18]

In addition, there are various common law principles which afford certain protections, such as legal professional privilege, and the privilege against self-incrimination.

International Human Rights Laws in Australia

Australia has signed various international treaties and conventions regarding human rights. Australia has agreed to be bound by the following treaties:

Although Australia is a signatory to these, the rights given in the treaties are only applicable in Australia if domestic legislation is established. [19] For example, the Racial Discrimination Act 1975 (Cth), [20] implements the Convention on the Elimination of All Forms of Racial Discrimination, and the Sex Discrimination Act 1984 (Cth), [21] provides some of the rights outlined in the Convention on the Elimination of All Forms of Discrimination Against Women. [19]

However, another way the rights provided in a treaty can be seen in Australian law is where provisions of a treaty are already a part of domestic legislation (for example, the Convention of the Rights of People of Disabilities can be seen as incorporated into domestic law through similar provisions in the Disability Discrimination Act 1992 (Cth)). [19] [22]

Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) (previously known as the Human Rights and Equal Opportunity Commission) is a national independent statutory body of the Australian government. Established under the Australian Human Rights Commission Act 1986 (Cth), [23] it has responsibility for the investigation of alleged infringements under Australia’s anti-discrimination legislation.

Matters that can be investigated by the Commission include discrimination on the grounds of age, race, colour or ethnic origin, racial vilification, sex, sexual harassment, sexual orientation, gender identity, intersex status, marital or relationship status, actual or potential pregnancy, breastfeeding or disability. [24] [25]

However, the protection of human rights has several significant limitations. For instance, human rights will often trump other public goods as it enjoys a prima facie; [26] human rights may be violated in some circumstances or reasons like national emergency or security; [27] human rights are protected in various States (ACT and Victoria) through legislation. However, it cannot be implemented nor enforceable at the Federal level. [28]

Civil and political rights

Freedom of expression

Under the Australian Constitution, there is an implied freedom of political communication on government and political matters. [7]

Some restrictions on political expression exist in Australia, including laws on defamation, racial vilification, and contempt of Parliament.

In 2015, Tasmania's Anti Discrimination Commissioner found that the Catholic Church and the Archbishop of Hobart had a "case to answer" under Tasmanian Anti-Discrimination legislation for promoting the Catholic view of marriage. Australian Greens candidate Martine Delaney brought the matter to the Commission. The ABC reported that case has "raised concerns about freedom of speech ahead of a national debate on same-sex marriage." [29]

In 2007, Parliamentarian Lee Rhiannon of the Australian Greens referred remarks made by an Australian Catholic Cardinal opposing embryonic stem cell research to the New South Wales parliamentary privileges committee for allegedly being in "contempt of parliament". The Cardinal was cleared of the charge and described the move as a "clumsy attempt to curb religious freedom and freedom of speech". [30] [31]

Voting rights

The New South Wales Parliament is Australia's oldest parliament. First elections were held in 1843. NSWParliament1.jpg
The New South Wales Parliament is Australia's oldest parliament. First elections were held in 1843.

Australians achieved voting rights decades before most other Western nations. The Australian colonies granted male suffrage from the 1850s and in 1895 the women of South Australia achieved the right to both vote and stand for Parliament, enabling Catherine Helen Spence to be the first to stand as a political candidate in 1897. [32] After federation of the colonies in 1901, the Franchise Act 1902 was passed, granting the right to vote to men and women. [33] However, the Act also restricted votes for 'natives' unless they were already enrolled. These restrictions were unevenly applied and were relaxed after World War II, with full rights restored by the Commonwealth Electoral Act 1962. [34]

In 1856, an innovative secret ballot was introduced in Victoria, Tasmania and South Australia, in which the government supplied voting paper containing the names of candidates and voters could select in private. This system was adopted around the world, becoming known as the "Australian Ballot". The use of proportional representation via Single Transferable Vote (STV) and majoritarian Instant Runoff Voting (IRV) in many state/territory upper and lower houses as well as the federal Senate and House of Representatives respectively. These democratic features are upheld by rankings in Freedom House, Democracy Index and Polity IV as well as processes, proceedings and conduct being regulated by federal and state Electoral Commissions.

Women's rights

As mentioned above Women's suffrage was granted in 1902 and property rights in 1897 [35] . The first woman elected to any Australian Parliament was Edith Cowan, to the West Australian Legislative Assembly in 1921. Dame Enid Lyons, in the Australian House of Representatives and Senator Dorothy Tangney became the first women in the Federal Parliament in 1943. In 1971, Senator Neville Bonner became the first Aboriginal Australian to sit in the federal Parliament. Rosemary Follett was elected Chief Minister of the Australian Capital Territory in 1989, becoming the first woman elected to lead a state or territory. In 2010, Julia Gillard became the first female Prime Minister of Australia.

South Australian suffragette Catherine Helen Spence (1825-1910). Catherine Helen Spence.jpg
South Australian suffragette Catherine Helen Spence (1825–1910).

By 2010, the people of Australia's oldest city, Sydney, had female leaders occupying every major political office above them, with Clover Moore as Lord Mayor, Kristina Keneally as Premier of New South Wales, Marie Bashir as Governor of New South Wales, Julia Gillard as Prime Minister, Quentin Bryce as Governor General of Australia and Elizabeth II as Queen of Australia.

Australia has laws banning gender, sex, sexual orientation, marital status, breastfeeding and pregnancy discrimination [36] , providing for equal access to services (such as parental leave, education and child care), advancing reproductive rights (through universal healthcare and laws surrounding reproductive rights), outlawing of sexual harassment, marital rape, female genital mutilation, child marriage and legalisation of no-fault divorce.

The role of women in the Australian military began to change in the 1970s. In 1975, which was the International Year of Women, the service chiefs established a committee to explore opportunities for increased female participation in the military. This led to reforms which allowed women to deploy on active service in support roles, pregnancy no longer being grounds for automatic termination of employment and changes to leave provisions.

Despite being integrated into the military, there were still restrictions on female service. The ADF was granted an exemption from the Sexual Discrimination Act when it was introduced in 1984 so that it could maintain gender-based restrictions against women serving in combat or combat-related positions, which limited women to 40 percent of positions in the ADF. As a result of personnel shortages in the late 1980s the restriction against women in combat-related positions was dropped in 1990, and women were for the first time allowed to serve in warships, RAAF combat squadrons and many positions in the Army. Women were banned from positions involving physical combat, however, and were unable to serve in infantry, armoured, artillery and engineering units in the Army and clearance diving and ground defence positions in the RAN and RAAF respectively.

On 27 September 2011, Defence Minister Stephen Smith announced that women will be allowed to serve in frontline combat roles by 2016. Women became able to apply for all positions other than special forces roles in the Army on 1 January 2013; it is planned that this remaining restriction will be removed in 2014 once the physical standards required for service in these units are determined. Women will be directly recruited into all frontline combat positions from late 2016.

Capital punishment

The last use of the death penalty in Australia was in Victoria in 1967. Ronald Joseph Ryan was hanged at Pentridge Prison on 3 February 1967 for the murder of a prison guard, George Hodson. However, Australian criminologist, Gordon Hawkins, director of Sydney University's Institute of Criminology, doubts that Ryan was guilty.

Capital punishment was officially abolished for federal offences by the Death Penalty Abolition Act 1973 . The various states abolished capital punishment at various times, starting with Queensland in 1922 and ending with New South Wales in 1985.

People with a disability

Discrimination against persons with disabilities in various contexts is prohibited under the Disability Discrimination Act 1992 (Cth) (DDA). The Act makes it unlawful to treat a disabled person less favorably, or to fail to make reasonable adjustments for the person, in the contexts of employment, education, publicly available premises, provision of goods and services, accommodation, clubs and associations, and other contexts. Complaints made under the DDA are made to the Australian Human Rights Commission.

The Australian Government requested the Productivity Commission to evaluate the effectiveness of the DDA, and the Commission published its findings in 2004.[ citation needed ] The Commission found that while there is still room for improvement, particularly in reducing discrimination in employment, overall the DDA has been reasonably effective. The Commission found that people with a disability were less likely to finish school, to have a TAFE or university qualification and to be employed. They are more likely to have a below average income, be on a pension, live in public housing and in prison. The average personal income for people with a disability is 44 per cent of the income of other Australians.

DisabilityCare Australia, formerly known as the National Disability Insurance Scheme, is a healthcare program initiated by the Australian government. The bill was introduced into parliament in November 2012. [37] In July 2013 the first stage of DisabilityCare Australia commenced in South Australia, Tasmania, the Hunter Region in New South Wales and the Barwon area of Victoria, while the Australian Capital Territory will commence in July 2014.

Treatment of particular groups and minorities

Indigenous Australians

The current wellbeing of indigenous Australians is an ongoing issue in Australia.

There is significant disparity in health between indigenous and non-indigenous Australians. In 2010–2012, the estimated life expectancy at birth for Aboriginal and Torres Strait Islander males was 69.1 years, and for females 73.7 years. This was 10.6 years lower than the life expectancy of non-Indigenous males, and 9.5 years lower than that of non-Indigenous females. [38] A 2006 study by the Australian Institute of Health and Welfare showed that 70% of the Aboriginal population die before the age of 65, compared with 20% of non-indigenous Australians.[ citation needed ] Additionally, the suicide rate among Aboriginal Australians is almost three times higher (at 4.2%) than the national average (1.5%).[ citation needed ]

The Aboriginal Tent Embassy set up in Canberra by activist agitating for the rights of Indigenous Australians. Aboriginal Tent Embassy in Parkes (3).jpg
The Aboriginal Tent Embassy set up in Canberra by activist agitating for the rights of Indigenous Australians.

The roots of the present condition can be traced to the historical treatment of Aboriginals and the dispossession of land that occurred following arrival of the British settlers in the late 1700s, where a combination of disease, loss of land (and thus food resources) and violence reduced the Aboriginal population. Later, from the 1830s, colonial governments established the now controversial offices of the Protector of Aborigines in an effort to avoid mistreatment of Indigenous peoples and conduct government policy towards them. Christian churches in Australia sought to convert Aborigines, and were often used by government to carry out welfare and assimilation policies.

The Caledon Bay crisis of 1932–4 saw one of the last incidents of frontier violence, which began when the spearing of Japanese poachers who had been molesting Yolngu women was followed by the killing of a policeman. As the crisis unfolded, national opinion swung behind the Aboriginal people involved, and the first appeal on behalf of an Indigenous Australian to the High Court of Australia was launched. Elsewhere around this time, activists like Sir Douglas Nicholls were commencing their campaigns for Aboriginal rights within the established Australian political system and the age of frontier conflict closed.

In 1962, the Menzies Government's Commonwealth Electoral Act provided that all Indigenous Australians should have the right to enroll and vote at federal elections (prior to this, indigenous people in Queensland, Western Australia and some in the Northern Territory had been excluded from voting unless they were ex-servicemen). [39] The successor Holt Government called the 1967 Referendum which removed the discriminatory clause in the Australian Constitution which excluded Aboriginal Australians from being counted in the census – the referendum was one of the few to be overwhelmingly endorsed by the Australian electorate (over 90% voted 'yes'). [40]

From the 1960s, Australian writers began to re-assess European assumptions about Aboriginal Australia – with works including Geoffrey Blainey's landmark history Triumph of the Nomads (1975) and the books of historian Henry Reynolds.

Statue of Aboriginal rights campaigner Sir Doug Nicholls, Parliament Gardens, Fitzroy, Victoria Pastor Sir Douglas and Lady Gladys Nicholls Memorial.jpg
Statue of Aboriginal rights campaigner Sir Doug Nicholls, Parliament Gardens, Fitzroy, Victoria

From the late 1960s a movement for Indigenous land rights developed. In the mid-1960s, one of the earliest Aboriginal graduates from the University of Sydney, Charles Perkins, helped organise freedom rides into parts of Australia to expose discrimination and inequality. In 1966, the Gurindji people of Wave Hill station (owned by the Vestey Group) commenced strike action led by Vincent Lingiari in a quest for equal pay and recognition of land rights. [41]

The Whitlam Labor and Fraser Liberal Governments instigated the Aboriginal Land Rights Act 1976, which, while limited to the Northern Territory, affirmed "inalienable" freehold title to some traditional lands. [42] In 1985, the Hawke Government returned ownership of Uluru (formerly known as Ayers Rock) to the local Pitjantjatjara Aboriginal people.

Indigenous Australians began to take up representation in Australian parliaments during the 1970s. In 1971 Neville Bonner of the Liberal Party was appointed by the Queensland Parliament to replace a retiring senator, becoming the first Aborigine in Federal Parliament. Bonner was returned as a Senator at the 1972 election and remained until 1983. Hyacinth Tungutalum of the Country Liberal Party in the Northern Territory and Eric Deeral of the National Party of Queensland, became the first Indigenous people elected to territory and state legislatures in 1974. In 1976, Sir Douglas Nicholls was appointed Governor of South Australia, becoming the first Aborigine to hold vice-regal office in Australia. Aden Ridgeway of the Australian Democrats served as a senator during the 1990s, but no indigenous person was elected to the House of Representatives, until West Australian Liberal Ken Wyatt, in August 2010. [34]

Lawyer and rights activist, Noel Pearson of Cape York. Noel Pearson 8Feb10.jpg
Lawyer and rights activist, Noel Pearson of Cape York.

In 1992, the High Court of Australia handed down its decision in the Mabo Case, recognising native title. That same year, Prime Minister Paul Keating said in his Redfern Park Speech that European settlers were responsible for the difficulties Australian Aboriginal communities continued to face. In 1999 Parliament passed a Motion of Reconciliation drafted by Prime Minister John Howard and Aboriginal Senator Aden Ridgeway naming mistreatment of Indigenous Australians as the most "blemished chapter in our national history". [43]

Prior to the calling of a 2007 federal election, the then Prime Minister, John Howard, revisited the idea of bringing a referendum to seek recognition of Indigenous Australians in the Constitution (his government first sought to include recognition of Aboriginal peoples in the Preamble to the Constitution in a 1999 referendum). The Labor opposition initially supported the idea; however, Kevin Rudd withdrew this support just prior to the election. [44]

In 2007, Prime Minister John Howard and Indigenous Affairs Minister Mal Brough launched the Northern Territory National Emergency Response. In response to the Little Children are Sacred Report into allegations of child abuse among indigenous communities in the Territory, the government banned alcohol in prescribed communities in the Northern Territory; quarantined a percentage of welfare payments for essential goods purchasing; despatched additional police and medical personnel to the region; and suspended the permit system for access to indigenous communities. [45] The policy was largely maintained under the Rudd and Gillard Governments.

Notable contemporary indigenous rights campaigners have included: federal politicians Aden Ridgeway and Ken Wyatt, lawyer Noel Pearson; academic Marcia Langton; and Australians of the Year Lowitja O'Donoghue (1984), Mandawuy Yunupingu (1992), Cathy Freeman (1998) and Mick Dodson (2009). [46] As of 2016, there were 5 indigenous people serving in the Federal Parliament of Australia. [47]

An annual report called 'Closing the Gap' is presented to the parliament by the office of Prime Minister and Cabinet [48] and it details the gap in multiple facets of life disproportionately affecting indigenous people compared to non-indigenous including education, life expectancy, infant mortality, employment, housing and criminal justice. Despite a decade of action though, the life expectancy gap continues to widen with only marginal if any improvements in other sectors of indigenous affairs and according to Oxfam "they are still denied the same access to these services that non-indigenous people take for granted". [49]

Immigrants and asylum seekers

Australia is an immigrant nation with a large and longstanding multi-ethnic migration program.

Historically, from the 1890s to the 1950s the country adhered to the White Australia Policy, which effectively barred or impeded people of non-European descent from immigrating to Australia. The policy was dismantled by successive governments after World War II, and from the 1970s successive governments officially supported multiculturalism. [50]

The entrance of the former Woomera IRPC. Woomera-irpc.jpg
The entrance of the former Woomera IRPC.

Australia is a signatory to the Refugee Convention and a component of the Australian immigration program is devoted to providing protection for refugees. The majority of refugees received by Australia are identified and referred by the UNHCR. The Special Humanitarian Program further offers refuge to people subject to "substantial discrimination amounting to gross violation of human rights in their home country" and who are supported by a proposer within Australia. In 2009–10 a total of 13,770 visas were granted under these categories. The annual figure remained roughly stable for the years between 2004–2010 and accepted applicants from such nations as Myanmar, Iraq, Bhutan, Afghanistan and six African countries. [51]

To varying degrees of success, recent Australian governments have sought to discourage unauthorised arrivals by people seeking refugee status in Australia by maintaining a system of mandatory detention for processing of people who arrive without a visa. In 1992, Australia adopted a policy of under which the Australian government could detain any person in the country without a valid visa. In 1994 the detention of 'unlawful non-citizens' was made mandatory. [52] During the late 1990s and early 2000s, these unauthorised arrivals, popularly referred to as "boat people", were transferred to one of the Australian immigration detention facilities on the Australian mainland, or to Manus Island or Nauru as part of the Pacific Solution. These offshore processing and mandatory detention policies have attracted criticism. In 2014, the Australian Human Rights Commission published a report, which found that many basic rights outlined in the Convention on the Rights of the Child were denied to children living in immigration detention. [53]

Australia's immigration regime has attracted the ire of the United Nations Human Rights Council for "massive abuse [...] of irregular migrants", by suspending habeas corpus, separating families, indefinite detention of irregular migrants and inadequate reception/medical centres. [54] [55] and whilst Australia "remains in active discussions" [56] with the Refugees and Safe, Orderly & Regular Migration components of the Global Compacts on Migration, Prime Minister Morrison stated that the compact will "fundamentally weaken Australia's strong border protection" and will not sign it. [57]

LGBTI people

Historical persecution

Prior to European contact, there were no known legal or social punishments for engaging in homosexual activity. Sex seems to have been a very open topic among the Indigenous people. Among the Arrernte people, sex plays were particularly ubiquitous, even among young children who would play "mothers and fathers" in a very literal sense. They would typically mimic the sex acts they saw their parents and other adults perform. These acts seem to have been performed regardless of sex. Traditions of "boy-wives" also existed where young boys, typically 14 years of age, would serve as intimate servants of older men until they reached the age of initiation, at which point the young man would have his penis subincised. The Indigenous people did not have the typical Western view of heterosexuality and homosexuality. [58]

As part of the British Empire, Australian colonies inherited anti-homosexuality laws such as the Buggery Act of 1533. These provisions were maintained in criminal sodomy laws passed by 19th century colonial parliaments, and subsequently by state parliaments after Federation. [59] Same-sex sexual activity between men was considered a capital crime, resulting in the execution of people convicted of sodomy until 1890.

Different jurisdictions gradually began to reduce the death penalty for sodomy to life imprisonment, with Victoria the last state to reduce the penalty in 1949. [59] Community debate about decriminalising homosexual activity began in the 1960s, with the first lobby groups Daughters of Bilitis, Homosexual Law Reform Society and the Campaign Against Moral Persecution formed in 1969 and 1970. [60]

Decriminalisation

In October 1973, former Prime Minister John Gorton put forward a motion in the federal House of Representatives that "in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law". All three major parties were given a conscience vote, and the motion was passed by 64 votes to 40: [61]

However, Gorton's motion had no legal effect as the legality of homosexuality was a matter for state and territory governments. Over a 22-year span between 1975 and 1997, the states and territories gradually repealed their sodomy laws as support for gay law reform grew. [62]

November 1978: Gay Solidarity Group supporters march in the Sydney CBD to protest the Briggs Initiative, which would have effectively banned gay and lesbian teachers in the U.S. state of California. Tribune negatives including Malcolm Fraser and gay solidarity march, Sydney, New South Wales, November 1978 (25678366327).jpg
November 1978: Gay Solidarity Group supporters march in the Sydney CBD to protest the Briggs Initiative, which would have effectively banned gay and lesbian teachers in the U.S. state of California.

South Australia was the first jurisdiction to decriminalise male homosexual activity on 17 September 1975, with the Australian Capital Territory's decriminalisation, first proposed in 1973, approved by the Fraser Federal Government with effect from 4 November 1976. [59] Victoria followed on 23 December 1980, although a "soliciting for immoral purposes" provision added by conservatives saw police harassment continue in that state for some years. [62]

Other jurisdictions to decriminalise male homosexuality were the Northern Territory (effective 4 October 1983), New South Wales (22 May 1984) and (after four failed attempts) Western Australia (7 December 1989). [59] In exchange for decriminalisation, Western Australian conservatives required a higher age of consent and an anti-proselytising provision similar to the United Kingdom's section 28, both since repealed. [59]

Queensland legalised male same-sex activity with effect from 19 January 1991 after the long-standing Nationals government had lost power. [59] [63]

The Tasmanian Government refused to repeal its sodomy law, which led to the case of Toonen v Australia , in which the United Nations Human Rights Committee ruled that sodomy laws violated the International Covenant on Civil and Political Rights. Tasmania's continued refusal to repeal the offending law led the Keating Government to pass the Human Rights (Sexual Conduct) Act 1994, [64] which legalised sexual activity between consenting adults throughout Australia and prohibited laws that arbitrarily interfered with the sexual conduct of adults in private.

In the 1997 case of Croome v Tasmania, [65] Rodney Croome applied to the High Court of Australia to strike down the Tasmanian anti-gay law as inconsistent with federal law; after having failed to have the matter thrown out, the Tasmanian Government decriminalised homosexuality on 1 May 1997, becoming the final Australian jursidiction to do so. [66]

The content of laws relating to the equality of LGBT people is summarised in the following table:

Federal
FederalSame-sex marriageDe facto relationships statusRegistered relationships statusEqual age of consentAnti-discrimination legislationAdoption and foster parentingRecognition of parents on birth certificateAccess to fertility (i.e. IVF and/or Surrogacy)Right to change legal gender without SRS/divorce
Flag of Australia (converted).svg  Australia Yes check.svg (since 2017) Yes check.svg (family law) Yes check.svg (Covered by state/territory law; available non-marriage relationship registration schemes vary) Yes check.svg (covered by state/territory law) Yes check.svg (Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 [67] ) Yes check.svg (family law) Yes check.svg (family law) Yes check.svg / X mark.svg (family law) WA bans surrogacy for same-sex couples. [68] Yes check.svg (2013 under the Australian Government Guidelines on the Recognition of Sex and Gender; otherwise covered by state/territory law)
State/Territory
JurisdictionExpungement scheme implementedGay panic defence abolishedConversion therapy bannedHate crime laws include sexual orientationAnti-vilification lawRight to change legal gender without SRS/divorce
Flag of the Australian Capital Territory.svg ACT Yes check.svg (2015) [69] Yes check.svg (2004) [70] X mark.svg (Proposed) [71] Yes check.svg Yes check.svg [72] Yes check.svg
Flag of New South Wales.svg NSW Yes check.svg (2014) [73] Yes check.svg (2014) [74] X mark.svg Yes check.svg Yes check.svg [72] Yes check.svg (Requires sex reassignment surgery) [75] [76]
Flag of the Northern Territory.svg NT Yes check.svg (2018) [77] [78] Yes check.svg (2006) [70] X mark.svg X mark.svg X mark.svg [72] Yes check.svg
Flag of Queensland.svg QLD Yes check.svg (2018) [79] [80] Yes check.svg (2017) [81] X mark.svg X mark.svg Yes check.svg [72] Yes check.svg (Requires sex reassignment surgery) [82] [83]
Flag of South Australia.svg SA Yes check.svg / X mark.svg (2013; can apply to have recorded as spent conviction, not expunged) [84] X mark.svg (Common law position not abolished - to be repealed by 2020) [85] [86] X mark.svg X mark.svg X mark.svg [72] Yes check.svg
Flag of Tasmania.svg TAS Yes check.svg (2018) Yes check.svg (2003) [70] X mark.svg X mark.svg Yes check.svg [72] Yes check.svg [87] [88] [89]
Flag of Victoria (Australia).svg VIC Yes check.svg (2015) [90] Yes check.svg (2005) [70] Yes check.svg [91] Yes check.svg X mark.svg [72] Yes check.svg (Requires sex reassignment surgery) [92] [76]
Flag of Western Australia.svg WA Yes check.svg (2018) [93] [94] Yes check.svg (2008) [70] X mark.svg (Proposed) [95] X mark.svg X mark.svg [72] Yes check.svg [96]

Intersex people

Australia was the first country to conduct a parliamentary inquiry into involuntary or coerced medical interventions on intersex people, but the report has not been implemented. [97] A recent Family Court case authorising a gonadectomy and consequential surgery on a young child [98] has attracted public commentary for disclosing those medical interventions, their rationales, and a prior clitorectomy and labiaplasty. [99] [100] [101]

In March 2017, Australian and New Zealand community organizations issued a joint call for legal reform, including the criminalization of deferrable intersex medical interventions on children, an end to legal classification of sex, and improved access to peer support. [102]

Jurisdiction Physical integrity and bodily autonomy Reparations Anti-discrimination protection Access to identification documents Access to same rights as other men and women Changing M/F identification documents Third gender or sex classifications
Flag of Australia (converted).svg Australia X mark.svg X mark.svg Yes check.svg (2013 for federal protection) [103] Yes check.svg (Federal) [103] Yes check.svg (Exemptions regarding sport) [103] Yes check.svg (Policies vary depending on jurisdiction) [104] Yes check.svg (Opt in at the federal level, state/territory policies vary) [104] [105]

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1967 Australian referendum (Aboriginals)

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LGBT rights in the United Kingdom history of the legal status of LGBT activity in the UK

Lesbian, gay, bisexual, and transgender (LGBT) rights in the United Kingdom of Great Britain and Northern Ireland have evolved dramatically over time.

LGBT rights in New Zealand Rights of lesbian, gay, bisexual and transgender people in New Zealand

Lesbian, gay, bisexual, and transgender (LGBT) people have the same rights as other people in New Zealand. The protection of LGBT rights is advanced, relative to other countries in Oceania, and is one of the most liberal in the world, with the country being the first in the region and thirteenth in the world to enact same-sex marriage.

LGBT rights in Australia Rights of lesbian, gay, bisexual and transgender people in Australia

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LGBT rights in Oceania Rights of lesbian, gay, bisexual and transgender people in Oceania

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Sex Discrimination Act 1984 Act of the Parliament of Australia, currently registered as C2017C00383

The Sex Discrimination Act 1984 is an Act of the Parliament of Australia which prohibits discrimination on the basis of sex, marital or relationship status, actual or potential pregnancy, sexual orientation, gender identity, intersex status or breastfeeding in a range of areas of public life. These areas include work, accommodation, education, the provision of goods, facilities and services, the activities of clubs and the administration of Commonwealth laws and programs. The Australian Human Rights Commission investigates alleged breaches of the Act. The office of Sex Discrimination Commissioner, created in 1984 alongside the Act, is a specialist commissioner within the AHRC.

LGBT rights in Queensland

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LGBT rights in New South Wales

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LGBT rights in Victoria

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LGBT rights in South Australia

Lesbian, gay, bisexual, and transgender (LGBT) people in the Australian state of South Australia have the same legal rights as non-LGBT people. South Australia has had a chequered history with respect to the rights of LGBT people. Initially, the state was a national pioneer of LGBT rights in Australia, being the first in the country to decriminalise homosexuality and to introduce a non-discriminatory age of consent for all sexual activity. Subsequently, the state fell behind other Australian jurisdictions in areas including LGBT relationship recognition and parenting, with the most recent law reforms regarding the recognition of same-sex relationships, LGBT adoption and strengthened anti-discrimination laws passed in 2016 and went into effect in 2017.

LGBT history in Australia

This article details the history of the LGBT rights movement in Australia, from the colonial era to the present day.

LGBT rights in Tasmania

Lesbian, gay, bisexual, and transgender (LGBT) people in the Australian state of Tasmania have the same legal rights as non-LGBT residents. Tasmania has a transformative history with respect to the rights of LGBT people. Initially dubbed "Bigots Island" by international media due to intense social and political hostility to LGBT rights up until the late 1990s, the state has subsequently been recognised for LGBT law reforms that have been described by activists such as Rodney Croome as among the most extensive and noteworthy in the world. Tasmania imposed the harshest penalties in the Western world for homosexual activity until 1997, when it was the last Australian jurisdiction to decriminalise homosexuality after a United Nations Human Rights Committee ruling, the passage of federal sexual privacy legislation and a High Court challenge to the state's anti-homosexuality laws. Following decriminalisation, social and political attitudes in the state rapidly shifted in favour of LGBT rights ahead of national trends with strong anti-LGBT discrimination laws passed in 1999, and the first state relationship registration scheme to include same-sex couples introduced in 2003.

LGBT rights in Western Australia

Lesbian, gay, bisexual and transgender (LGBT) rights in Western Australia have seen significant progress since the beginning of the 21st century, with the Parliament of Western Australia passing comprehensive law reforms in 2002. The Australian state of Western Australia decriminalised male homosexual acts in 1990 and was the first state in Australia to grant full adoption rights to LGBT couples in 2002. However, the Surrogacy Act 2008 bans single people and same-sex couples from altruistic surrogacy agreements, making Western Australia the only jurisdiction within Australia to maintain such a prohibition.

LGBT rights in the Northern Territory

Lesbian, gay, bisexual, and transgender (LGBT) persons in Australia's Northern Territory have the same legal rights as non-LGBT residents. The liberalisation of the rights of lesbian, gay, bisexual and transgender (LGBT) people in Australia's Northern Territory has been a gradual process. Homosexual activity has been legal since 1983 with an equal age of consent since 2003. Same-sex couples are recognised as de facto relationships, though there is no civil union or domestic partnership registration scheme available. Same-sex marriage has been legal in the territory since December 2017, following the passage of the Marriage Amendment Act 2017 in the Australian Parliament. The 2017 Australian Marriage Law Postal Survey, designed to gauge public support for same-sex marriage in Australia, returned a 60.6% "Yes" response in the territory. LGBT people are protected from discrimination by both territory and federal law, though the territory's hate crime law does not cover sexual orientation or gender identity. The territory was the last jurisdiction in Australia to legally allow same-sex couples to adopt children.

LGBT rights in the Australian Capital Territory

The Australian Capital Territory (ACT) is one of Australia's leading jurisdictions with respect to the rights of lesbian, gay, bisexual and transgender (LGBT) people. The ACT has made a number of reforms to territory law designed to prevent discrimination of LGBT people; it was the only state or territory jurisdiction in Australia to pass a law for same-sex marriage, which was later overturned by the High Court of Australia. The ACT's laws also apply to the smaller Jervis Bay Territory.

Intersex Human Rights Australia organization

Intersex Human Rights Australia (IHRA) is a voluntary organisation for intersex people that promotes the human rights and bodily autonomy of intersex people in Australia, and provides education and information services. Established in 2009 and incorporated as a charitable company in 2010, it was formerly known as Organisation Intersex International Australia, or OII Australia. It is recognised as a Public Benevolent Institution.

Intersex and LGBT

Intersex people are born with sex characteristics, such as genitals, gonads, and chromosome patterns that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies".

Intersex rights in Australia

Intersex rights in Australia are protections and rights afforded to intersex people through statutes, regulations, and international human rights treaties, including through the Sex Discrimination Act 1984 (Cth) which makes it unlawful to discriminate against a person based upon that person's intersex status in contexts such as work, education, provision of services, and accommodation.

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