(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
Legalisation of same-sex sexual acts
The first Commonwealth Australia territory to legalise same-sex acts was New South Wales in 1983. The last one was Western Australia in 1990. In this timespan, other Australian territories implemented the measure: Norfolk Island (1993), Northern Territory (1984), Queensland (1991), South Australia (1972), Tasmania (1997) and Victoria (1981).
The age of consent for same-sex and heterosexual acts is equal in all states except Queensland. In the State of Queensland, Criminal Code Act 1899 and Criminal Law Amendment Bill 1996 (Section 208 and Section 213) stipulate the age of consent for same-sex sexual acts at 18, while that of heterosexual acts is 16.
At the Commonwealth level, Australia introduced the Workplace Relations Act in 1996. The Act prohibits discrimination in employment based on sexual orientation. Aside from the Commonwealth, the other states developed their own laws to protect LGBTI people from discrimination: Capital Territory (1992), New South Wales (1983), Northern Territory (1993), Queensland (1992), South Australia (1986), Tasmania (1999), Victoria (1996) and Western Australia (2002).
The Sex Discrimination (Sexual Orientation, Gender Identity & Intersex Status) Amendment Act 2013 introduced federal protections against discrimination for LGBTI people for the first time. Same-sex couples are now also protected from discrimination under the definition of ‘marital or relationship status’.
Up until this time, LGBTI people were protected from discrimination by state and territory anti-discrimination laws of general application but with weaknesses in protection in a number of areas, including, most significantly, lack of protection from unfair treatment by a federal department or agency. Both federal and state anti-discrimination laws in Australia contain broad permanent exemptions for religious organisations, schools and, in some cases, individuals. One significant improvement in the new federal anti-discrimination law is that it limits the availability of these exemptions in government-funded aged care. This is an important step towards the removal of religious exemptions in the future.
The ‘incitement to hatred based on sexual orientation’ is prohibited only in some parts of Australia: Australian Capital Territory (2004), New South Wales (1993), Queensland (2003) and Tasmania (1999).
Union of same-sex couples
In some parts of Australia (Australian Capital Territory 2008, New South Wales 2010, Tasmania 2004 and Victoria 2008) same-sex couples are offered all or most rights attached to marriage, but not marriage itself (Civil Partnerships, Registered Partnerships, Civil Unions, etc.).
In other parts of Australia, namely Norfolk Island (2006), Northern Territory (2004), Queensland (several acts from 1999 and onwards), South Australia (2003, 2007) and Western Australia (2002), same-sex relationships are recognized by law, but without most rights attached to marriage.
The legalisation of same-sex marriage has been proposed to the Commonwealth Parliament several times, but the bill was rejected on all occasions.
The appellants are two Bangladeshi citizens who applied for protection visas in Australia due to the fear of persecution in their country. The same-sex couple lived for four years in Bangladesh and during that period experienced a variety of violent incidents and harassment by members of their families.
Their claim was refused by a delegate of the Minister of Immigration and Multicultural Affairs and later affirmed by the Refugee Review Tribunal. Despite recognizing that in Bangladesh homosexual people cannot live openly and constitute a ‘particular social group’ according to the 1951 Convention, the Tribunal found that ‘Bangladeshi men can have homosexual affairs or relationships, provided they are discreet’. After the rejection by a single judge of the Federal Court the applicants appealed to the Full Court of the Federal Court who refused their application on the basis that ‘they did not put this case forward to the Tribunal and it would be wrong to allow it to be raised now in an appeal from an application for judicial review’. The appellants were granted special leave to appeal to the High Court. The Australian High Court found that the tribunal had erred in implicitly dividing the relevant social group into two separate groups, one consisting of discreet gay men and one consisting of non-discrete gay men. Because claiming refugee status is asserting an individual right, the question of whether or not a gay man from Bangladesh has a well-founded fear of persecution cannot be determined by assigning him to the discreet or non-discrete group of homosexual males and then determining the probability of a member of that group suffering persecution. The Court ordered the Refugee Review Tribunal to redetermine its review of the Immigration Department’s decision.
This case was presented by Nicholas Toonen, an Australian citizen resident in Tasmania, a leading member of the Tasmanian Gay Law Reform Group. Toonen complained to the UN Human Rights Committee that two provisions of the Tasmanian Criminal Code, namely, sections 122 (a) and (c) and 123, which criminalize various forms of sexual contact between men, including all forms of sexual contact between consenting adult homosexual men in private, were a violation of his right to privacy under Article 17 and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
Toonen complained that the above sections of the Tasmanian Criminal Code empower Tasmanian police officers to investigate intimate aspects of his private life and to detain him if they have reason to believe that he is involved in sexual activities which contravene the above sections.
The Committee found that adult consensual sexual activity in private is covered by the concept of ‘privacy’ and that Toonen was affected by the continued existence of the Tasmanian laws, which continuously and directly interfered with his privacy, despite their lack of recent enforcement.
The Committee noted that ‘the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV’, further adding that ‘The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection.’
The Committee found that the Sections did not meet the ‘reasonableness’ test in the circumstances of the case and that they arbitrarily interfered with Toonen’s right under article 17, paragraph 1.
The Human Rights Committee, therefore, found that the facts before it revealed a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant. The author was entitled to a remedy under article 2(3)(a) of the Covenant, and the opinion of the Committee was that an effective remedy would be the repeal of Sections 122(a), (c) and 123 of the Tasmanian Criminal Code, and requested a response from the Federal government in 90 days.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT
The discretion argument
The ‘discretion argument’ had widely appeared in Australian immigration courts. From 1994 to 2003, the failure rate of lesbian applicants before the Refugee Review Tribunal (RRT) was 86% and the failure rate of gay male applicants before the RRT was 73%. In the years between 2003 and 2007, in Australia, the actual group membership of the claimants was seriously doubted or disbelieved in 38% of the cases. In 2001, the Federal Court of Australia commented that the Iranian Penal Code prohibiting homosexuality and implementing the death penalty as punishment for this alleged crime, was a limit for homosexual behaviour, sustaining that same-sex couples should have avoided homosexual behaviour in public and that those ‘limits’ imposed by Iran did not represent persecution. In addition to this statement, the Full Federal Court affirmed that ‘public manifestation of homosexuality is not an essential part of being homosexual’.
Cruel treatment of homosexual asylum seekers / Violation of the principle of non-refoulement
Australian law mandates that all asylum seekers arriving by boat should either be sent to Nauru or Papua New Guinea’s Manus Island for processing. Homosexual asylum seekers suffer particularly negative consequences since Papua New Guinea is a country where same-sex relations and homosexual conduct is criminalised with a penalty of up to 14 years imprisonment and homosexual people are persecuted by state actors and the local population.
According to an article from Open Democracy (July 2015) entitled ‘Australia continues to resettle homosexual refugees in homophobic Papua New Guinea’, gay men seeking asylum ‘are both required yet unable to declare their sexuality for fear of persecution’. The article highlights the harmful policy of sending asylum seekers offshore. Nobody is safe in those centres. In Manus Island, men have reportedly died, and children and women deported to Nauru have suffered abuse. The UN conducted numerous inspections in the camps and assessed that they violate basic human rights standards.
An article from the Guardian published in 2014 shows the content of six letters sent to the Guardian Australia by a group of Iranian asylum seekers detained by Australia in Manus Island, Papua New Guinea. In the letters the detainees express their frustration about the situation they are forced to endure, describing abuses and bullying suffered inside the Manus centre.
Advocates argue that cases of LGBTI asylum seekers sent to Manus centre testify that the resettlement deal between Australia and Papua New Guinea represents a direct violation of Australia’s non-refoulement obligations under the Refugee Convention.
LGBTI refugee claims determination
Credibility is one of the most challenging parts for LGBTI asylum seekers because many asylum officers do not believe asylum seekers trying to prove their belonging to a particular social group. According to LGBTQI rights advocate Senthorun Raj and barrister Kristen Walker SC, there have been many cases in Australia in which asylum officers failed to understand the complexity, fluidity and diverse nature of cultural and sexual identity. Decision-makers often rely on Western Eurocentric stereotypes to assess applications. Applicants have been questioned about their knowledge of the gay club scene in their country of origin or the music of ‘gay icons’ like Madonna.
NON-GOVERNMENTAL ORGANISATIONS (NGOs)
National LGBTI Health Alliance
The National LGBTI Health Alliance is the national peak health organisation in Australia for organisations and individuals that provide health-related programs, services and research focused on lesbian, gay, bisexual, transgender, and intersex people and other sexuality, gender, and bodily diverse people and communities. Their mission is to provide a national focus to improve health outcomes for LGBTI people through policy, advocacy, representation, research evidence, and capacity building.
Minus18 is Australia’s largest support network for gay, bi, lesbian and trans youth from all over Australia. Services provided include:
- Mental Health Support
- Online support
- Online Resources
- Youth Mentoring/ Resources
Living Proud LGBTI Community Services of WA
Living Proud Inc has been providing support, information and resources to the Western Australia gay, lesbian, bisexual, trans and intersex community for almost 40 years. Their main focus is providing essential services to LGBTI people. Among the services offered are:
- Peer counselling phone line
- Health and wellbeing initiatives
- Community capacity building
- Improve accessibility through training options
Australian Pro Bono Centre
Postal Address: Australian Pro Bono Centre
The Law Building, UNSW Sydney NSW 2052 Australia
Street Address: Australian Pro Bono Centre
Law Centre Precinct
The Law Building – Kensington Campus
University of New South Wales
Telephone +61 2 9385 7381
Fax +61 2 9385 7375
The Centre is unable to provide any direct legal advice or assistance to clients, rather, it is an independent centre of expertise that aims to grow the capacity of the Australian legal profession to provide pro bono legal services that are focused on increasing access to justice for socially disadvantaged and/or marginalised persons, and furthering the public interest.
QLife is an Australian national counselling and referral service for people who are lesbian, gay, bisexual, trans, and/or intersex (LGBTI). QLife provides phone and web-based counselling and referral service to people of all ages across the full breadth of people’s bodies, genders, relationships, sexualities, and lived experiences.
Human Rights Law Centre
The Human Rights Law Centre protects and promotes human rights in Australia and in Australian activities overseas. Among the focus areas are: promoting the human rights of LGBTI Australians and promoting the human rights of asylum seekers and refugees.
COUNTRY OF ORIGIN SPECIALISTS
We do not currently have a specialist on LGBTI issues in Australia, but we welcome suggestions.
Researched by: Nicoletta Idili