Australia is looking increasingly regressive by international standards when it comes to protecting the rights of LGBTQIA+ people. This follows the news that last month, the Supreme Federal Court of Brazil ruled that homophobia is a crime on par with racism and other forms of hate speech. Australia, surprisingly, has no such protections.
The 9-1 ruling extends previous protections granted in 2019 that made homophobic hate speech a crime when directed at the LGBTQ+ community in general. Under the new ruling, homophobic language directed at an individual is punishable by one to three years in prison, along with a hefty fine.
Protections in this country for LGBTQIA+ people are far more limited than those in Brazil, highlighting the need for reform.
NSW Independent MP Alex Greenwich has recently submitted a Bill to state Parliament in an effort to implement sweeping LGBTQ+ changes he says are long overdue.
“Laws should provide leadership, but in New South Wales, they fall short of community expectations and protections provided to LGBTIQA+ people in the rest of the country,” Greenwich told The Latch.
“Chronic exposure to discrimination and stigma has left many LGBTIQA+ people struggling with high levels of distress that affects their health and wellbeing”.
Greenwich’s equality Bills have been drafted for the past 18 months and have the backing of stakeholder groups, including Equality Australia, ACON, and the NSW Gender Centre. The changes would make it illegal to dismiss teachers on the basis of their sexuality and outlaw so-called ‘gay conversion’ practices.
“My bills would ensure all LGBTIQA+ people receive the full protection of the law against discrimination and vilification and help trans people access the healthcare and documentation they need to get on with their lives,” Greenwich continued.
“The bills provide the best opportunity to make the state an inclusive, welcoming and affirming place for all.”
The LGBT rights tracking database Equaldex ranks NSW 85/100 on their equality index, the lowest rank of any Australian state or territory. This is primarily because NSW has not outlawed conversion therapy, requires surgery to recognise a change in gender, and does not recognise non-binary people.
Brazil, by comparison, has more protections and rights for LGBTQIA+ people, but it also has higher instances of violent homophobia and attacks on transgender people. In 2017, at least 445 LGBT people were killed in the country following homophobic attacks. Grupo Gay de Bahia, who tracked the data, said that homophobia had risen in recent years under far-right politicians like the former President, Jair Bolsonaro. It also notes that state and municipal laws criminalising homophobia are rarely enforced.
That said, Australia is no paragon, either. The latest Australian Bureau of Statistics data show that LGBTQIA+ people are far more likely to have experienced physical violence than heterosexual people. A 2021 survey found that one in three LGBTQ+ high school students face homophobic slurs every day. Right now, there is a special investigation underway into historic hate crimes in Sydney, seeking to uncover the truth about decades of suspicious deaths of queer people that were either covered up or denied proper investigation.
The country has come a long way when it comes to advancing and protecting the rights of LGBTQIA+ people. However, as Brazil shows and Greenwich’s new bill indicates, there is still a long way to go.
Here’s the state of anti-homophobia laws across each state and territory in Australia.
Australia
“Australia is often considered a leader in LGBTQ+ human rights, but history is our guide here in terms of how long it takes us to get there,” Dr Justin Ellis, Senior Lecturer in Criminology at the University of Newcastle and queer rights expert told The Latch.
Homosexuality was only decriminalised in this country in 1997 after the High Court ruled that Tasmania’s anti-gay laws were inconsistent with Federal protections that had passed in 1994. Same-sex marriage wasn’t recognised until 2017 following the marriage equality plebiscite that dredged up some less than savoury opinions on the rights of gay people.
When it comes to homophobia and discrimination, only four anti-discrimination Acts actually apply to LGBTI people. Broad protections are covered at a Federal level by the 1986 Human Rights and Equal Opportunities Commission Act. However, the Sex Discrimination Act of 1984 allows some exemptions for religious institutions. This includes the employment of LGBTI people by religious institutions, schools, and charities, as well as the provision of services to them.
When we talk about ‘homophobia’ of the kind outlawed in Brazil, we’re referring to the legal term ‘vilification’. This means inciting hatred towards, serious contempt for, or severe ridicule, either directed at a person or in broader public discourse, resulting in offence, insult, humiliation, or intimidation.
At a federal level, there is no explicit legislation covering the vilification of LGBTQIA+ people. This is despite the fact that laws expressly forbidding racial vilification have been on the books since 1975. This means that protections against vilification are only covered under state and territory law, which not all jurisdictions have.
NSW
Greenwich has stated that NSW is actually the most regressive state when it comes to LGBTQIA+ protections, despite hosting the annual Mardi Gras parade and, this year, WorldPride. This is owing to its lax conversion therapy and religious carve-outs for LGBTQIA+ discrimination.
In contrast with other jurisdictions though, NSW actually does have a few laws that protect LGBTQIA+ people from vilification. These include the 1977 Anti-Discrimination Act and the 2018 amendment to the Crimes Act of 1900.
These laws make threatening or inciting violence against people on the basis of sexuality, gender identity, intersex status, or HIV/AIDS diagnosis a crime. There are also civil sanctions against the vilification of transgender people.
“One of the reasons why NSW enacted the [2018] law is because it was recognised that there were problems with the existing laws that operated in NSW at that time, and that is very similar to the laws in other parts of Australia,” Ellis said.
The penalty for breaching these laws is a maximum of three years in prison, on par with Brazil’s new laws.
However, Ellis added that there have been no successful prosecutions since the laws were updated, something he says is “a common problem across Australia when we are talking about the criminal laws that govern different forms of hatred”.
VIC
Victoria has been at the centre of recent debates on equality — for all the wrong reasons. Recent protests from far-right and TERF groups, culminating in Nazi salutes on the steps of the state parliament, have sparked calls for a strengthening of anti-vilification laws.
‘Strengthening’ here would mean ‘putting any at all in place’. Victoria’s Equal Opportunity Act 2000 makes discrimination based on sexuality and gender identity illegal, but it doesn’t mention vilification. Vilification was only made a crime in 2001, but it only covered race and religious grounds.
In 2021, following a Legal and Social Issues Committee into vilification in the state, 36 recommendations were made to the government, who accepted 34 of them. The changes have yet to be implemented, however.
Following the protests in March, the Greens called on the government to bolster existing laws to include LGBTQIA+ people, which still hasn’t happened.
“Our queer community is strong in the face of discrimination, but as long as gaps exist in the law, this community will continue to face vilification,” Victorian Greens LGBTIQA+ spokesperson Gabrielle de Vietri said at the time.
QLD
Queensland Premier Annastacia Palaszczuk claimed in March that she wanted the state to have “the strongest hate crime laws in the country,” following a rise in antisemitic incidents, and would be passing laws to match that. However, the Sunshine State already has some of the best protections for LGBTI people in Australia – a metric of both success and failure.
Queensland’s 1991 Anti-Discrimination Act makes it illegal to incite hatred towards, show serious contempt for, or severely ridicule people on the basis of their sexuality or gender identity. That said, the act doesn’t include non-binary people in its definition.
However, the Bill proposed by the government earlier this year does seek to toughen penalties, make vilification a criminal offence, and expand the definition to include non-binary people. Once that passes, all of the LGBTQI community will be legally protected from vilification in Queensland.
ACT
The ACT has some of the most comprehensive protections for LGBTQIA+ people in the country and has been leading in the fight for equality. The ACT actually legalised same-sex marriage in 2013, a law that was later overturned by the High Court in 2017.
The Discrimination ACT 1991 makes it illegal in the ACT to discriminate against people on the basis of their sexuality, gender, intersex status, and HIV/AIDS status. This includes vilification.
In 2016, those protections were expanded under an amendment that broadened the definition of intersex and made vilification even harder to justify, while further protections were added in 2018. However, discrimination against employees of some religious organisations are still technically legal.
Equaldex gives the ACT an equality score of 97 out of 100, making it one of the most equal places on the planet for LGBTQI people.
SA
In sharp contrast to the ACT, South Australia has zero protections on the books against vilification on the basis of sexuality, gender identity, or intersex status.
As of 2023, there appears to be no push in state parliament to introduce any such protections, despite protection against racial vilification having been a part of South Australian law since 1996.
The Equal Opportunity ACT 1984 does make discrimination on the above grounds illegal, although there are still significant carve-outs for religious organisations. The Sex Discrimination Act also provides similar protections.
In 2021, SA Parliament did at least amend the Sentencing Act 2017 to require courts to consider discrimination and prejudice in motivation for a crime when considering sentencing.
WA
Protections for LGBTQI people in Western Australia are broad but remain overly patchy. There is no legal recognition of non-binary gender identities, discrimination against intersex people is not prohibited, and, weirdly, trans people are only protected from discrimination if their gender has been officially recognised by the state.
When it comes to vilification, sadly, this is another of those holes in state law. WA has no protections from vilification for LGBTI people. LGBTQI rights groups have long criticised WA for its piecemeal approach and stated that comprehensive reform is needed in this area.
To be fair, they have at least somewhat acknowledged the issue. In 2021, the Law Reform Commission of WA reviewed the Equal Opportunity ACT 1984 and, in 2022, made 163 recommendations to provide stronger protections for LGBTQIA+ people. The government has broadly accepted them and, at present, is drafting a new Equal Opportunity Act to cover the recommendations.
The changes are set to include anti-discrimination provisions for transgender and gender-diverse people, equal rights in religious schools, and, yes, anti-vilification laws. It could, however, be some time before these laws pass and come into effect.
NT
The Northern Territory was the only place in Australia with no vilification laws to protect anyone at all, including, obviously, LGBTQI people. That was until November of last year when the Anti-Discrimination Amendment Bill 2022 was passed by the Territory Parliament.
The amendment plugged up many of the holes in the leaky Anti-Discrimination Act 1992, prohibiting religious schools from discriminating against staff on the basis of their sexuality and expanding protected attributes.
“Our laws should protect all of us equally. LGBTIQ+ Territorians now have greater protections from discrimination, no matter where they work, study or access services,” said Equality Australia Legal Director Ghassan Kassisieh at the time.
Under the new laws, the entire LGBTQI community is protected from vilification. A positive duty of care is also placed on employers to eliminate discrimination or harassment in their workplaces.
Prior to the law’s passing, only ‘harassment’ on the basis of personal attributes was prohibited, but it had a high standard of proof.
TAS
Last but certainly not least, Tasmania is actually the national leader when it comes to protections for LGBTI people in law. Since 1998, the state has protected all LGBTQI people from discrimination and vilification in employment and in public life, making it the first jurisdiction to do so.
The Anti-Discrimination Act 1998 includes fairly narrow carve-outs for religious preferencing in faith-based institutions, allowing schools to select Christian pupils over others, for example, but explicitly prohibits exclusion on the basis of sexuality.
Still, state justice does not consider hatred or prejudice motivated by sexual orientation, gender identity, or intersex status in sentencing, something that would make crimes committed more serious. There are calls to toughen up these requirements as advocates say that there are still too many examples of harassment and attacks on LGBTQI people that go unpunished.
That said, Tasmania’s approach is considered exemplary for the rest of the country and it was to the Apple Isle that the ACT looked for inspiration for its own protections, also now the best in the country.
Does Australia Need to Toughen Its Anti-Homophobia Laws?
Clearly, by not having federal-level protections for LGBTQI people against vilification, the state is leaving them open to abuse and sending a message to homophobes that this kind of behaviour is okay. In states like VIC, WA, and SA, where there are no anti-vilification laws currently in place, those changes also need to be made in order to better protect LGBTQI people.
However, in cases of harassment and abuse by strangers in the street, those types of incidents will often only be brought as complaints to human rights agencies and aren’t considered criminal. This is because the threshold for harm is high, and many of these laws are civil in nature. As seen in NSW, even states that have laws on the books don’t prosecute people using them.
The end result of such a process is that the person against whom the complaint has been made could simply be asked to “sit down with the complainant and talk through the issues,” Ellis said.
“The outcome from that, for example, might be an apology”.
Before even going down that road, the vast majority of incidents of homophobic abuse go unreported owing to a lack of awareness of the laws around vilification as well as a lack of trust in institutions — that have historically been less than supportive of the community — to deal with these issues.
“Law reform is necessary,” Ellis said, in order to better reflect the diverse range of sexual orientations and gender identities that can be targets of vilification and violence. However, these issues are cultural and legal reform is only one part of the solution. Education and awareness is a key part of reducing such incidents.
For Ellis, this means the timely removal of hate online, tackling anti-LGBTQIA+ misinformation, and reforming religious carveouts for employee discrimination.
In a day and age where wannabe fascists are marching through the streets of state capitals alongside anti-trans campaigners, drag performers are having to reschedule shows for fear of religious hate mobs, and drag queen story time cancellations are being imported from the US, it seems now would be the perfect time for governments to extend protections.
While some are seeking to, others aren’t moving nearly as rapidly as they could and indeed should be.
Related: Where We Need to Go: The Future of LGBTQIA+ Rights in Australia
Related: How to Talk to Your Child About Coming Out, According to Drag Sensation Reuben Kaye
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