Executive Summary and Recommendations
The Acts Amendment (Sexuality Discrimination) Bill 1997 (“Bill”) introduces a number of amendments to the Equal Opportunity Act 1984 (“EO Act”) and the Criminal Code and repeals the Law Reform (Decriminalisation of Sodomy) Act 1989. The Bill was introduced into the Legislative Council in September 1997, passed first and second reading and was referred to this Committee for consideration and report in November 1997.
The major amendment to the EO Act is the insertion of a new Part IIB which prohibits discrimination on the grounds of sexuality and transgender identity. The new Part is broadly similar to existing Parts of the EO Act which prohibit discrimination on grounds such as sex, race and religious conviction, but differs in detail from existing Parts.
A large part of the Committee’s inquiry was devoted to consideration of proposals for exemptions from having to comply with the proposed new Part IIB of the EO Act in particular fields of activity. The fields of most interest were insurance, superannuation, adoption and reproductive technology.
Insurance and superannuation
Insurance and superannuation providers are currently not prevented in Western Australia from discriminating against a person on the basis that they are homosexual or in a same sex relationship. The Bill will alter this position by prohibiting discrimination in provision of “services”, which include insurance and superannuation.
This aspect of the Bill is welcomed by homosexual rights organisations, who refer to insurance and superannuation as a “black spot” for anti-homosexual discrimination. However, it is strongly opposed by insurance and superannuation providers, primarily on the basis that they should be allowed to offer services on conditions which reflect risks identified by actuarial or statistical analysis. In response, it is argued that the Bill will not prevent insurance providers obtaining medical and behavioural information and using the information to set conditions which appropriately reflect risk.
The second argument put forward by insurance providers is that other jurisdictions offer an exemption allowing them to discriminate. This is, however, only true in some jurisdictions. Similarly, in the EO Act an exemption is provided for some grounds but not all. Australia’s approach to discrimination in insurance and superannuation is far from uniform.
On balance, the majority of the Committee is not convinced that an exemption in favour of insurance and superannuation providers is justified. In the Committee’s view, the possible marginal improvement in accuracy of assessment of insurance risk does not outweigh the advantages of promoting the Bill’s general intention of prohibiting discrimination on the grounds of sexuality and transgender identity.
The minority cannot support the weakening of the right of an insurance, assurance or superannuation provider to assess its liability on the basis of its own policy criteria and methodology. In the minority view, the right of an insurance body to discriminate is essential if it is to match acceptable risk to acceptable premiums for the vast majority of the insuring public.
An additional issue arising in relation to superannuation is that proposed Part IIB of the EO Act takes an approach different to existing Parts. The Committee considers that inclusion of a specific #35ZF dealing with superannuation schemes and provident funds has the potential to cause confusion and is unnecessary as #35Z covers these services. #35ZF should be deleted from the Bill.
The Adoption Services section of the Department of Family and Children’s Services suggests that the Bill adds confusion to the area of adoption, contrary to the Bill’s proponent’s claim that the Bill does not affect adoption.
It is uncertain whether the EO Act affects the Adoption Act 1991 at all, as it is unclear whether adoption involves a “service” as defined by the EO Act. The Bill does not add to the uncertainty.
The Adoption Act deals separately with adoption by couples (the great majority of adoptions) and by individuals. It is currently impossible for a same sex couple to have a child placed in their care with a view to adoption, or to adopt a child. The Bill does not affect this position.
The Bill could, however, have one effect on the Adoption Act. If the EO Act affects adoption, the Bill adds the grounds of sexuality and transgender identity to the existing grounds in relation to which an adoption applications committee is prohibited from discriminating, when making decisions about individual applicants for adoption. The Committee observes that the Bill would therefore have to be amended to give effect to Hon Helen Hodgson’s assurance that in regard to adoption “the status quo will stand”.
The Reproductive Technology Council suggested that the Bill adds confusion to the area of reproductive technology, contrary to the Bill’s proponent’s claim that the Bill does not affect reproductive technology.
The Human Reproductive Technology Act 1991 deals separately with in vitro fertilisation (“IVF”) and artificial insemination.
Looking first at IVF, under the Human Reproductive Technology Act 1991 it is not possible for a lesbian couple to access IVF procedures. The Bill does not affect this position.
However, the Bill will alter the laws governing access to artificial insemination by prohibiting a provider of artificial insemination services from refusing access to those services to a woman on the ground that she is a lesbian or is in a same sex relationship. Hon Helen Hodgson in her second reading speech states that in regard to artificial insemination “the status quo will stand”. The Committee observes that the Bill would have to be amended to give effect to Hon Helen Hodgson’s assurance.
Recognition of same sex relationships
Most participants in the debate regard the Bill’s recognition of a same sex relationship as a form of de facto relationship as being something of a social milestone, whether they approve or disapprove of the recognition.
However, looking at the practical effect of this aspect of the Bill, existing distinctions between homosexual and heterosexual relationships remain as they are currently, except for the specific purposes of the EO Act.
It is consistent with the intention of the Bill that a same sex relationship should be capable of recognition as a de facto relationship in the same way as a heterosexual relationship.
Uniform age of consent
Currently the age of consent for male to male sexual activity in Western Australia is 21, while for heterosexual activity the age of consent is 16. The Bill removes the distinction, providing for a uniform age of consent of 16. It also extends the operation of the Criminal Code by recognising sexual offences arising from female to female sexual activity. Both these outcomes are consistent with the intention of the Bill to provide equal treatment for heterosexual and homosexual activity.
The Commonwealth Human Rights (Sexual Conduct) Act 1994 prohibits arbitrary interference with private and consensual sexual activity between persons over 18 years of age. The Committee was of the opinion that the inconsistency of the Criminal Code with the Commonwealth Human Rights (Sexual Conduct) Act 1994 should be removed by amendment of the relevant sections of the Criminal Code.
A minority of Committee members takes the view that the inconsistency with Commonwealth legislation would best be overcome by adoption of the Bill’s proposed uniform age of consent of 16. However, the minority recognises that the important principle of equality and a uniform age of consent could be established with a uniform age of 17 or 18.
The majority does not agree. They acknowledge the need to establish consistency with Commonwealth law but do not accept there is a compelling reason to lower the age of consent for male to male sexual activity to make it consistent with the age for lawful consensual heterosexual intercourse.
Repeal of Law Reform (Decriminalisation of Sodomy) Act 1989
The Bill in repealing this Act will remove the Preamble to the Law Reform (Decriminalisation of Sodomy) Act 1989 from Western Australia’s statute book.
The Committee is divided on this issue. The minority believes that the Preamble and other provisions of the Law Reform (Decriminalisation of Sodomy) Act 1989 serve as both an impediment to adequate school sex education and as an incitement to community hatred.
The majority of the Committee does not agree that the growing acceptance of homosexuality extends as far as condoning male to male or female to female sexual activity. For that reason, the symbolic statement of Parliament’s disapproval of homosexual activity that is contained in the Preamble should remain part of Western Australian law.
Drafting of the Bill
The Committee reviewed the drafting of the Bill in detail and proposes a number of changes to the drafting. These are set out in full in Appendix A, in a form suitable to be moved as amendments to the Bill in Committee stage in the House.
List of recommendations
Recommendations are grouped as they appear in the text at the page number indicated.
Recommendation 1: that proposed new section 35ZF of the Equal Opportunity Act 1984 be deleted from the Bill.
Recommendation 2: that references in proposed new section 35O of the Equal Opportunity Act 1984 to “presumed sexuality” be deleted, and consequential changes made.
Recommendation 3: that references in proposed new section 35P of the Equal Opportunity Act 1984 to “presumed transgender” be deleted, and consequential changes made.
Recommendation 4: that the House consider whether proposed new sections 35O(3) and 35P(3) of the Equal Opportunity Act 1984 should be deleted.
Recommendation 5: that if proposed new section 35O(3) of the Equal Opportunity Act 1984 remains in the Bill, paragraphs (b) and (c) be deleted.
Recommendation 6: that in clause 6(a) of the Bill, the first line of the definition of “transgender” be amended to read as follows:
“ “transgender identity” means the quality of being a person of one sex who -”.
Recommendation 7: that the term “transgender identity” be used in place of the term “transgender” throughout the Bill’s proposed amendments to the Equal Opportunity Act 1984, and consequential changes made.
Recommendation 8: that in proposed new sections 35Q(3) and 35S(2) of the Equal Opportunity Act 1984, the words “or transgender identity” are inserted after the word “sexuality”.
Recommendation 9: that proposed new section 35ZE of the Equal Opportunity Act 1984 be amended by replacing the words “persons who are not of the sexuality or transgender identity of that other person” with the words “persons who are not of the sexuality of that other person or are not of transgender identity”.
Recommendation 10: that for consistency with the existing Parts of the Equal Opportunity Act 1984 and to correct minor difficulties with the drafting of the Bill, the House make the minor drafting changes set out in paragraph [14.7] to the Bill’s proposed amendments to the Equal Opportunity Act 1984.
Recommendation 11: that the House consider whether the Bill should amend section 191 of the Criminal Code in a manner similar to the Bill’s proposed amendments to section 192 of the Criminal Code.
Recommendation 12: that to correct minor difficulties with the drafting of the Bill, the House make the technical drafting changes set out in paragraph [14.9] to the Bill’s proposed amendments to the Criminal Code.