Mapping Australian legislation on LGBTIQA+ rights

GLaD program researcher Sean Mulcahy is conducting a new project funded by La Trobe University and designed to audit Australian legislation that has been subject to human rights scrutiny, in response to government strategies around identifying gaps in the legislative framework for LGBTIQA+ rights. The project will culminate in publications exploring how Australian parliamentary human rights scrutiny committees conceptualise LGBTIQA+ rights as well as how LGBTIQA+ advocates make rights claims and with what effects.

LGBTIQA+ advocates have predominantly focussed on human rights in the context of international human rights law in global fora. However, this century has seen the introduction of domestic human rights regimes in Australian parliaments. In 2004, the Australian Capital Territory introduced the Human Rights Act 2004, and this was followed by the Victorian Charter of Human Rights and Responsibilities Act 2006, the Commonwealth Human Rights (Parliamentary Scrutiny) Act 2011, and the Queensland Human Rights Act 2019. These charters require that proposed legislation be subject to human rights scrutiny by parliamentary committees.

At the same time, the United Nations Independent Expert on Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity has called on states to undertake ‘an exercise of law review and reform to ensure conformity with international human rights law.’ At a local level, the Victorian Government’s Pride In Our Future Strategy commits to ‘look at relevant laws where previous policy decisions or unintended consequences have meant that LGBTIQ+ people have not received fair treatment’, and the Australian Capital Territory Government’s Capital of Equality Strategy commits to enhance ‘the ways our laws, policies and systems are implemented, so that responses address LGBTIQ+ people’s needs.’

These calls and commitments, while welcome, assume that human rights provide an effective framework to guide reform that will enable fairer and more responsive approaches to LGBTIQA+ people’s needs. This has happened to some degree in international jurisdictions, where human rights charters have been leveraged in court cases, but Australian human rights charters are more limited in scope – the main mechanism for protecting human rights is through parliamentary human rights scrutiny.

Are Australian human rights charters effective at protecting, respecting and fulfilling LGBTIQA+ rights? Over fifteen years after the Victorian human rights charter, research from the Australian Research Centre on Sex, Health, and Society shows that LGBTQ Victorians report similar levels of unfair treatment because of their sexual orientation or gender identity to those nationwide. (That research was not able to draw conclusions about levels of unfair treatment of intersex and asexual Victorians.) If human rights are an effective framework to enable fairer and more responsive approaches to LGBTIQA+ people’s needs, why haven’t we seen an reduction in these reported levels of unfair treatment?

One possibility is that LGBTIQA+ advocates rarely use parliamentary scrutiny processes in advancing rights claims. This may be partly due to concerns about the politicisation of these processes. Instead, this project advances an innovative idea that domestic regimes in Australian parliaments might offer new ways to advance (or, sometimes, hinder) LGBTIQA+ rights claims, and intends to guide ways to better utilise these processes in advancing such claims.

The project will map legislation concerning sexual orientation, gender identity and sex characteristics in the four Australian jurisdictions with a parliamentary human rights scrutiny mechanism, and examine the human rights scrutiny instruments for each piece of legislation to answer critical questions about how LGBTIQA+ rights are considered. These questions include: which human rights are of most relevance to legislation concerning LGBTIQA+ people? How have parliamentary scrutiny committees conceptualised LGBTIQA+ human rights? And how have LGBTIQA+ advocates made rights claims through these processes, and with what effects?

This new project, which will run for the duration of 2023, explores these issues and works to develop the first ever audit of Australian legislation concerning sexual orientation, gender identity and sex characteristics subject to human rights scrutiny. The project will:

  • shift the focus of established LGBTIQA+ human rights advocacy to better utilise parliamentary scrutiny regimes;
  • interrogate conceptualisations of domestic human rights laws as they relate to LGBTIQA+ rights; and
  • challenge practices of Australian parliamentary scrutiny committees to enable deeper consideration of how LGBTIQA+ legislation relates to human rights instruments.

By examining the ways in which parliamentary human rights frameworks have conceptualised LGBTIQA+ rights, this project will provide valuable insight into how LGBTIQA+ rights fit within these human rights regimes; the strengths and weaknesses of existing approaches to LGBTIQA+ rights claims; and how LGBTIQA+ rights claims can be bolstered for improved health and social outcomes.

We’ll be posting more about what we find as the project progresses, but in the meantime you can get in touch using the details on our contact page for more information.