Tuesday, 17 January 2017

My submission supporting the abolition of gay panic defence in Queensland

I have just received news that I can now publish my submission to the Queensland Parliament committee where I supported the abolition of gay panic defence in Queensland.

Here is my submission:



4 January 2017

The Research Director
Legal Affairs Community Safety Committee
Parliament House
BRISBANE  QLD  4000

By email: lacsc@parliament.qld.gov.au


Dear Sir/Madam


Submission as to the Criminal Law Amendment Bill 2016


1.         Summary

I write to support clause 10 of the bill which is to amend Section 304 of the Criminal Code, the effect of which amendment is to abolish gay panic defence.

2.         Who am I?

I am a solicitor in a private practice. I was admitted in 1987 and practise primarily in family law. I have for almost 20 years spoken out and lobbied to ensure that there is equality in the law for LGBTI people. In 2015 I was awarded LGBTI Q Activist of the Year. In 2016 my firm was awarded the Small Legal Practice Initiative Award by the Queensland Law Society in its Equity and Diversity Awards, for my firm’s advocacy for women and LGBTI people in particular.

For about 15 years I wrote a legal column for gay magazines in Queensland.

I was a key organiser of the foundation of the Brisbane LGBTI Legal Service Inc. In 2015 that service awarded me the Rainbow Key Award. In 2016 I was one of two presenters celebrating the 6th anniversary of that service held in the Banco Court of the Supreme Court of Queensland. The other presenter was the Honourable Michael Kirby.

I have made representations to Attorneys-General Dick, Lucas and D’Ath seeking the abolition of gay panic defence in Queensland.

3.         Bipartisan support

Although this Bill has been put before the house by the attorney, I note that in the past the then Opposition Leader Mr Springborg stated publicly that the Opposition would support the abolition of gay panic defence in Queensland. I would hope that that bipartisan support remains. The health and safety of LGBTI people in Queensland should not be the subject of a political score card.


4.         Why gay panic defence should be abolished

Then Human Rights Commissioner, (and now Federal Liberal MP) Tim Wilson in his national consultation report Resilient Individuals:Sexual Orientation, Gender Identity and Intersex Rights called on the two States that allowed gay panic defence to remain, namely Queensland and South Australia, to abolish it. Abolition by Queensland would bring Queensland into line with most other states.

Mr Wilson in his report asked participants in a survey what they would describe an inclusive Australia to look like. Three responses to me stand out:

·         “Equality at all levels, no special rules for minorities but neither should there be any persecutions for people’s preferences whatever they may be”
·         “A place where it is simply unremarkable to be LBGTI”
·         “A country where I can walk down the street and hold the hand of the woman I love without prejudice …..”

The commission states in its report, at page 15:

            “Research consistently identified higher than average rates of violence, harassment and bullying towards LGBTI people in Australia. It is well established that violence, harassment and bullying affect the well-being and equality of life of people who experience it”.

A 2012 report quoted at page 15 in the commission report revealed 25.5% of the survey respondents reported an experience of homophobic abuse or harassment in the previous 12 months. In addition, a further 8.7% reported experiencing threats of or actual physical violence. Approximately 40% of trans men and women reported experiencing some form of verbal abuse, and almost a quarter reported some form of harassment.  Additionally 65% of participants in the 2014 first annual national trans mental health study reported experiencing discriminationor harassment. It was difficult for the commission to comment on rates of violence, harassment and bullying for intersex people due to the absence of available data.

In their ground breaking research Speaking out, stopping homophobic and transphobic abuse in Queensland (2010) Dr Alan Berman and Shirleene Robinson paint a disturbing picture of abuse towards LGBTI people in Queensland. The most common form of abuse was, not surprisingly, verbal abuse which affected 73% of 796 respondents in their life time. Five hundred and ten respondents or 47% experienced harassment including spitting and offensive gestures. Four hundred and fifty two respondents or 41% experienced threats of physical violence in a life time. Two hundred and fifty four respondents or 23% were subjected to physical attack or assault without a weapon (including being punched, kicked or beaten). The authors note at pages 36 to 37 that:

            “The figures describing the levels of physical attacks or assaults on the LBGTIQ population of Queensland are a striking deviation from broader population statistics from the year 2000, which declared that 7.6% of a single “mainstream” Queenslanders had been the victim of assault. This means that members of the LGBTIQ population approximately three times more likely than “mainstream” Queenslanders to experience physical violence. Figures from respondents who indicated they had experienced physical assault with a weapon (9% of survey respondents) are also included, the members of the Queensland LBGTIQ population are more than four times more likely to experience physical assault than all Queenslanders …………  In some instances, perpetrators unleash physical violence after reading cues which they perceive to be single “homosexual” or “unmanly”. In one such instance, a male respondent, who was wearing drag after returning from a fancy dress party, described being “punched and kicked and told that I needed to know what it was to be a real man”. Another male, leaving his work premises in Brisbane was walking home when “three young drunk men who had been on Caxton Street drinking after a football match approach. One hit me in the stomach, the other slapped my backside, tousled my hair, waved me goodbye as I ran. Called me something akin to “gay” as they ran and another male was hit in the face with a metal pole and suffered a broken nose and nerve damage”.

Another respondent described how he was “attacked from behind, spun around, elbowed in the face”. Another described how he was:

                 “beaten to a pulp [with his] face smashed in, unconscious, teeth missing, jaw broken in five places, five metal plates and screws to hold the jaw together, jaw wired shut for 4 months, infections in the face, reconstructive surgery needed and braces needed for a further 4 years to realign teeth.”

Put simply, if Parliament enacts this proposed change, which I consider to be well drafted, and which does not victimise those subjected to domestic violence, it will give a powerful message to the community that these types of assaults are unwelcome, unapproved and should not be tolerated.

My husband and I (and I say husband as we married in the United States in 2015 although the marriage is not recognised in Australia) live in Fortitude Valley. The Valley of course and New Farm are known for gay cultures.  One might think we were safe there. Alas this is not true. Almost every other day for the “sin” of holding hands or being perceived to be different, we are given the death stare, or look of disdain, or have yelled at us abusive homophobic terms. We have done nothing by our conduct to deserve such abuse.

On 30 December 2016 we happened to be sitting on a tram on the Gold Coast. This was in the middle of the day. We weren’t holding hands. We weren’t being affectionate. We just sat there. A young man got on the tram and at which point he saw us, formed the view that we were gay, directed abuse towards us all the while the subject of CCTV. Our reaction was to avoid eye contact and act protectively. We should not have to live in fear in going about our normal lawful activities simply because we are perceived as being different. I was at that time afraid that I and my husband were going to be assaulted. I am no shrinking violet but that was scary.

I urge the committee to support this provision and for the House to pass the amendment.

I am happy for this submission to be published, and prepared to give evidence to the committee if that assists. The opinions set out in my submissions are my own.

Yours faithfully



Stephen Page
Harrington Family Lawyers

Sunday, 8 January 2017

I'm sorry, Shan Ju Lin, I don't want to be treated like a patient

About 40 or so years ago, the routine treatment for gays in the army in Australia, besides dishonourable discharge, was to ensure that they received psychiatric treatment, which included being held in custody, then electric shock treatment, so that their brains would be zapped, and they would no longer have the impulse of being attracted to other men. This was the era when sex between men was illegal and could be career ending. Another era- and one that we don't want to bring back.

These days we are more enlightened. Back when Paul Keating was in power, after Australia got a drubbing at the United Nations because Tasmania still had the offence on the books of sodomy between men, the Commonwealth Parliament passed laws to make it a human right that those having sex in private were entitled to just that= privacy and not to be prosecuted.

Despite this history, in wades then One Nation candidate Shan Ju Lin who said on Facebook that "gays should be treated as patients". I am glad that One Nation dumped her.

I have asthma and have had it all my life. I am happy to be treated in hospital for my asthma and other ailments, but not for my sexual orientation.  I don't want either me or anyone like me to be treated like a patient- based on our sexuality,  dragged back 40 years, deemed mentally unwell, prevented from undertaking our jobs, demonised, being detained in a psych ward, and then having my brain zapped. Such a concept is abhorrent.

As then US Secretary of State Hilary Clinton told the UN in Geneva six years ago: "Gay rights are human rights."

Or to put it the way Thomas Jefferson put it over 200 years ago: "All men are created equal." Anything less than that is not good enough.

13 January last day submssions to Senate committee about marriage bill

13 January is the last day to make submissions to a Senate Committee about the Government's exposure draft Bill to amend the Marriage Act. This is the draft, if ever there is to be the plebiscite, that the Government is saying it wants to put forward.

The Committee is clear- submissions are ONLY to be about the terms of reference, not about whether allowing equal marriage laws or about the plebiscite is a good or bad thing.

Please read the terms of reference carefully before making your submission. The committee has resolved that it will only accept submissions strictly addressing its terms of reference, with a particular focus on the following areas:
  • the proposed exemptions in the Exposure Draft for ministers of religion, marriage celebrants and religious bodies and organisations to refuse to conduct or solemnise marriages, and the extent to which those exemptions prevent encroachment upon religious freedoms; 
  • the nature and effect of the proposed amendment to the Sex Discrimination Act 1984;
  • whether there should be any consequential amendments to this bill, or any other Act, and, if so, the nature and effect of those consequential amendments.
Substantive submissions that explore the technical aspects of the terms of reference will be published, however the committee does not have the resources or time to consider short statements expressing support either for or against same-sex marriage.  As such, these statements will be treated as correspondence and not published.

The committee has also resolved that it will not publish form or campaign letters, or petitions, received to the inquiry.

 

My comments about the Bill


In my view it is fair enough that Ministers of Religion can have exemption to marry those who don't fit their religious views. While I am of the view that Ministers of religion should not discriminate, our constitutional theory and society is based on a balancing of interests, and that includes the freedom of religion.

However, this exemption under the Bill in my view is not necessary in any event. This is because s.47 of the Marriage Act  allows a Minister of religion to refuse to solemnise any marriage.

However, there should not be the ability of civil celebrants to refuse to solemnise marriage ceremonies because of their religious views. Quite simply, they hold those positions on the part of the State. If the State is of the view that there should not be discrimination, they they should not discriminate.

The last exemption allows religious organisations or bodies to discriminate in the provision of facilities, goods and services. This exemption is not needed. Religious bodies can already discriminate in the provision of goods and services under the Sex Discrimination Act. The provision of facilities is in essence the provision of a service, i.e., the use of the facilities, so it seems that this provision is not needed.

Submissions can be made here:

Committee Secretariat contact:

Committee Secretary
Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
Department of the Senate
PO Box 6100
Canberra ACT 2600

Phone: 02 6277 3228
Fax: 02 6277 5829
samesex.marriage.sen@aph.gov.au

Qld: submissions close 16 Jan to get rid of gay panic defence

Submissions close on 16 January to a Queensland Parliamentary inquiry to get rid of gay panic defence in Queensland. In 2015, Queensland , along with South Australia, was urged by then Human Rights Commissioner (and now Federal Liberal MP) Tim Wilson, to get rid of gay panic defence.

How the defence works in Queensland is to murder. If an accused claims, successfully, that they killed the person who made unwanted sexual advances to them, then instead of being convicted of murder, the conviction is downgraded to manslaughter.

As part of its election commitment, the Palaszczuk government has introduced legislation to rid Queensland of gay panic defence. The Bill is called the Criminal Law Amendment Bill 2016. In my view the Bill properly gets rid of gay panic defence for murder, without prejudicing those who have killed their partners in a domestically violent relationship. It is a very sensible amendment.

The Bill has now made its way to Parliament's Legal Affairs and Community Safety Committee, which is due to report back to the Parliament in February. Anyone can make a submission.

Some recent events have highlighted the need for Queensland to say, loud and clear, that it is opposed to violence against LGBTI people. Last week, a New Zealand man fell 8 metres on to train tracks in Gladstone. It remains unclear about how it happened. Police have to do their job. His husband reported that after his husband rejected the advances of a married man, the married man threw the victim off the bridge.

Over Christmas, my husband and I stayed a few days on the Gold Coast. Like thousands of others, we caught the Gold Coast's tram, the G. One day when we were riding the G, a young man came on to the G. He saw us sitting there and decided that he was going to target us: because he viewed us as gay. He clearly was in the mood for a fight. Luckily it did not happen, but it was scary.

It is a daily event that even in what are seen as the gay friendly parts of Brisbane, my husband and I receive death stares- for holding hands in public. Too often, we get yelled at in abusive and homophobic terms for just doing that, and sometimes just being who we are- without even holding hands.

Some years ago, Professor Alan Berman and Shirleene Robinson wrote about the horrendous levels of homophobic and transphobic violence in Queensland. The attitude that causes such violence remains, at least with some. A positive outcome from the Committee would be a help to combat that violence.

I have to date lobbied Attorney-Generals Cameron Dick, Paul Lucas and Yvette D'Ath to try and get rid of gay panic defence. I didn't try with Jared Bleijie, as he made it plain on coming into office that he was going to do nothing about it. To their credit, the Opposition under then Leader Lawrence Springborg said that they would support the abolition of gay panic defence. Let's hope that is the case.

The guide to making a submission is here.

Where to send the submission is here. 

Here is where to send the submission.

Sunday, 18 December 2016

In a ground-breaking decision, Family Court of Australia recognises a US pre-birth surrogacy order

Family Court of Australia court registers US pre-birth surrogacy order

In a groundbreaking decision, for the first time ever, the Family Court of Australia has registered a US surrogacy order. The effect of the Australian order means, that for all purposes the US order can be enforced in Australia and that the parents of the child as recognised by the US order are recognised as the parents of the child in Australia.

Until this decision, reported as Re Halvard and Another, there were only two ways that Australians going to the United States could be recognised in Australia as parents (other than for citizenship purposes), either:

  • to apply to the Family Court for a declaration as to parentage. The problems with this approach are that it is extremely expensive, is slow and may not be successful. I am told that a colleague charges $18,000, and that would be a fair figure. However, recent cases have indicated that different judges of the Family Court have different approaches, so that it was unclear whether the parents would be recognised as the parents; or
  • if living in Western Australia, to apply to the Family Court of Western Australia for a step-parent adoption order. That possibility arose from a 2013 case. However, the judge in that case told a legal conference in WA in 2015 that she was unlikely to continue to do so, out of concerns for surrogates. Further, following the Baby Gammy decision in the Family Court of Western Australia, it is doubtful whether that type of application would be successful now.
Not surprisingly, most parents who had returned to Australia with their babies born overseas chose, after they either obtained Australian citizenship for their children, (or if they were permanent residents or visa holders, ensured that their child was subject to the same visa conditions), to do nothing further. Why spend a lot of money going to court for little purpose?

There is another risk. Those who were from Queensland, NSW and the ACT in particular were at special risk that in going to the court that they might be referred to authorities to see if they had committed an offence, and then be prosecuted. A Sydney judge referred two Queensland couples to the Queensland Director Prosecutions for this purpose back in 2011. As it happened, neither couple was prosecuted.

 

This case


The parents lived in the United States. One of the parents was an Australian citizen and the other was a US citizen. The boy, X, lived with them in the US. The father had family members in Australia, and the intention was to travel to Australia from time to time.

The parents underwent surrogacy in Tennessee.They entered into a surrogacy agreement with a surrogate. X was conceived from the father's sperm and the mother's egg. A court in Tennessee ordered, when the the surrogate was 30-32 weeks pregnant that when the child was born, the parents would be declared to be the parents and that they would have custody of the child.

What is the effect of registration?


The Family Law Act provides that an overseas child order, made in a prescribed overseas jurisdiction, can be registered with the Family Court of Australia. Once it is registered, the overseas child order takes effect in Australia. Therefore if it is possible to register an overseas child order, and the form of that order recognises the intended parents as the parents of the child, then that order will transform the child's identity and legal relationship with the parents, not only in the overseas country [as happened when the overseas order was made], but also in Australia.

This means, for example, that the only people who have been granted parental responsibility for the child, in effect for the Australian Passports Act, are the parents, not the surrogate. Therefore the surrogate's consent for new Australian passports for the child will not be required.

If the parents were to die, then they would be recognised under Australian law as the parents of the child for inheritance purposes. They would also be recognised as the parents for child support purposes.

If the order were not registered, it is uncertain if this were the case.
 

Why did it go a judge?


The parents had first made an application to a registrar of  the court, who had declined to register the order. Because there was no ability to review the registrar's decision, and the law allowed the parents to bring an application before a judge, they did so.

What are reasonable costs?

Justice Forrest rejected the submissions of the parents' lawyer that the surrogacy arrangement was a commercial surrogacy arrangement under the Queensland and NSW Surrogacy Acts. His Honour found that the surrogacy agreement was altruistic  and was not a commercial surrogacy arrangement disguised as altruistic surrogacy. His Honour stated:

"The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided."

Implications of the decision


Any Australian intended parents who have undertaken surrogacy in the US should consider making application to register their US orders with the Family Court of Australia. However, they should get expert legal advice on doing so. Properly handled, the registration application should be relatively quick, cheap and effective.

Registration may also be relevant in Hague child abduction cases where the order has been made in the US, and the child is wrongfully removed to Australia or wrongfully retained in Australia.

Those contemplating or in the process of undertaking surrogacy in the US should get expert Australian legal advice before the orders are made there- because of making sure they are the right form for the Australian courts.

Those who have undertaken surrogacy overseas, especially in the US, and believe that they have committed a criminal offence in Australia in undertaking surrogacy in the US should get expert Australian legal advice. They may not have committed any criminal offence after all. This is particularly important in NSW for example, as there is not time limit for offences there.

The case makes it plain that pre-birth orders made in the US are covered. Pre-birth orders are made in about 40 US states.

Australian citizens who live abroad who contemplate returning to Australia at some stage with their children should, in my view, seriously consider undertaking registration.

Obtaining registration should be a lot cheaper than having to obtain a parenting order under the Family Law Act.

Limitations of the decision


The case will only apply to surrogacy orders made in the US and New Zealand. It will not apply to surrogacy orders made elsewhere, for example in Canada. This is because only those jurisdictions that are prescribed overseas jurisdictions can have their orders registered in Australia by this method. Regrettably very few jurisdictions are prescribed overseas jurisdictions. 48 of the 51 US jurisdictions are prescribed overseas jurisdictions. The ones that miss out are: South Dakota, Missouri and New Mexico.

Justice Forrest noted that in a previous decision in 2013, Justice Ryan declined to register a pre-birth surrogacy order made in South Africa because:

"The simple fact that South Africa is not included in the schedule that lists the countries that meet the definition of “prescribed overseas jurisdiction” is what prevented that order from being registered in this Court."


Those contemplating registration should NOT do so by registering their order through the Attorney-General's department. They should also be very careful about how they undertake the registration process. The judgment shows that the parents had been rejected by a registrar, and that the process before a judge is discretionary. If the judge believes that it is commercial surrogacy, then the application might be rejected.

Every case is different

What might be great for one couple, might end up exposing another to not getting registration or, worse, possibly being prosecuted. Expert advice is needed. Where intended parents lived at the time they underwent the surrogacy is also relevant, because each State and the ACT have different laws as to surrogacy:

  • Queensland: If the limitation period has run out for prosecution (1 year after the last payment), then it should be considered, with careful consideration to whether the expenses were reasonable.
  • NSW: If the parents underwent surrogacy before 1 March 2011 or signed their surrogacy agency retainer before that date, then registration is appealing. For those after that date, consideration should be given first as to whether the expenses were reasonable.
  • ACT: Consideration should be given first as to whether the expenses were reasonable.
  • Victoria: Registration is recommended for those who entered into the surrogacy arrangement after 1 January 2010. For those who entered into before that date, consideration should be given as to whether the expenses were reasonable.
  • Tasmania: Registration is recommended.
  • South Australia: Care should be taken to make sure if it is a pre- July 2015 or post-July 2015 surrogacy arrangement. If the latter, was the consent of the Attorney-General obtained? Consideration either way would need to be given as to whether the expenses were reasonable and whether there has been the payment of valuable consideration.
  • Western Australia: Care should be taken as to whether there is a surrogacy arrangement for reward has been entered into in breach of the Surrogacy Act and the Criminal Code. If not, then registration is recommended- but it may not be advisable to do so in Western Australia. 
  • Northern Territory: Registration is recommended.

Thursday, 3 November 2016

Hooray! Qld to allow same sex couples, singles to adopt

Last night the Queensland Parliament passed amendments to the State's Adoption Act 2009 to allow same sex couples, singles and those undergoing fertility treatment to be eligible to adopt.

This was an historic moment. For the first time in history, this discrimination will be removed- and will enable the assessment of who is to be an adoptive parent for a child to be decided purely on the best interests of the child, and without discrimination based on the sexuality of the intended parents, or whether the intended parents are single as opposed to a couple, and stops the cruel choice for couples of either undergoing IVF OR adoption, but not both.

I and others were critical when the Adoption Act 2009 was enacted- because it was discriminatory. It is pleasing to see this change.

To get this Bill through required real courage on the part of the Palaszczuk government. The two independents voted in favour, as did the casting vote of Speaker Peter Wellington. His voted was needed was because the two Katter Party members voted against, as did, sadly,  the whole of the LNP.

And what was the rationale of the LNP? Quite simply- there aren't enough children to be adopted. They are right. There aren't. But that is no reason to discriminate. The assessment for every child should be based on the best interests of that child, consistent with our international obligations under the International Convention on the Rights of the Child. To do otherwise is unfair, discriminatory, unequal - and wrong. As my 2C teacher Mrs Bray taught me all those years ago: "Two wrongs don't make a right."

The Bill commences when it receives the Royal assent, which should be in the next few days. 

The Government's position is also in line with Australia's position to the world under the Turnbull government. Last year Australian went to the UN in Geneva, and after being roundly chastised by 100 odd other countries about its discriminatory practices with LGBTI people, said that it would stop allowing exemptions to the Sex Discrimination Act for State legislation. Those exemptions came to an end on 31 July.

What is also important from these changes is that for the first time in legislation that I have seen, there is a definition of infertility- and it is non-discriminatory. This definition is consistent with a non-discriminatory definition of infertility proposed by the World Health Organization. The message is clear- that those undergoing infertility treatment can include singles and LGBTI people.  Here is the definition:



Infertility, of a person, means-
               
(a)   An inability, for a reason beyond the person’s control, to conceive; or
(b)   A genetically transmitted disorder giving rise to a significant risk that, if the person was a biological parent of a child, the child would not survive or the child’s health would be seriously impaired; or
(c)    A condition giving rise to a significant risk that, if the person fell pregnant, the child would not be carried until the child could be delivered alive; or
(d)   A condition giving rise to a significant risk that, if the person fell pregnant, the person would not survive or the person’s health would be seriously impaired.







Tuesday, 18 October 2016

Australia's human rights commissioners call for equal marriage

Yesterday Australia's human right commissioners- both for Australia and all the States and Territories called for equal marriage laws.

The commissioners, who comprise the Australian Council of Human Rights Authorities, said:




"ACHRA members reaffirm their support for marriage equality based on the fundamental human rights principles of equality before the law and non-discrimination. Members call on political leaders to work towards a resolution of this issue in a way that respects the rights and freedoms of all Australians. ACHRA reminds leaders and the community that prejudice and vilification in relation to sexuality and gender identity is harmful to individuals and society. In this regard, public debate must comply with existing discrimination protections in Federal, State & Territory laws. Those laws provide an appropriate balance of the rights to freedom of expression and belief, equality, and freedom from discrimination."

Couldn't have put it better myself.