David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I move amendments (1) and (2) on sheet 1604:

(1) Clause 2, page 2 (table item 1), omit the table item, substitute:

(2) Page 9 (after line 31), at the end of the Bill, add:

Schedule 2 — Establishing the LGBTIQA+ Commissioner

Australian Human Rights Commission Act 1986

1 Subsection 3(1)

Insert:

LGBTIQA+ Commissioner means the LGBTIQA+ Commissioner referred to in section 46N.

LGBTIQA+ people means lesbian, gay, bisexual, transgender, intersex, queer, asexual and other sexually or gender diverse people.

2 At the end of subsection 8(1)

Add:

; and (h) the LGBTIQA+ Commissioner.

3 Subsection 8(7)

Omit "or National Children's Commissioner", substitute ", National Children's Commissioner or LGBTIQA+ Commissioner".

4 After Part IIAA

Insert:

Part IIAB — LGBTIQA+ Commissioner

Division 1 — Establishment and functions

46N LGBTIQA+ Commissioner

There is to be an LGBTIQA+ Commissioner.

46NA Functions of Commission that are to be performed by the LGBTIQA+ Commissioner etc.

(1) The following functions are conferred on the Commission:

(a) to promote discussion and awareness of matters relating to the human rights of LGBTIQA+ people in Australia;

(b) to undertake research, or educational or other programs, for the purpose of promoting respect for the human rights of LGBTIQA+ people in Australia, and promoting the enjoyment and exercise of human rights by LGBTIQA+ people in Australia;

(c) to examine existing and proposed Commonwealth enactments for the purpose of ascertaining whether they recognise and protect the human rights of LGBTIQA+ people in Australia, and to report to the Minister the results of any such examination.

(2) The functions of the Commission under this section are to be performed by the LGBTIQA+ Commissioner on behalf of the Commission.

(3) The LGBTIQA+ Commissioner may submit reports to the Minister that deal with such matters, relating to the enjoyment and exercise of human rights by LGBTIQA+ people in Australia, as the LGBTIQA+ Commissioner considers appropriate.

(4) A report under subsection (3) may include recommendations that the LGBTIQA+ Commissioner considers appropriate as to the action that should be taken to ensure the enjoyment and exercise of human rights by LGBTIQA+ people in Australia.

(5) In performing functions, or exercising powers, under this section, the LGBTIQA+ Commissioner may give particular attention to LGBTIQA+ people who are at risk or vulnerable.

(6) In performing functions, or exercising powers, under this section, the LGBTIQA+ Commissioner may consult any of the following:

(a) LGBTIQA+ people;

(b) Departments and authorities of the Commonwealth, and of the States and Territories;

(c) non-governmental organisations;

(d) international organisations and agencies;

(e) such other organisations, agencies or persons as the Commissioner considers appropriate.

(7) In performing functions, or exercising powers, under this section, the LGBTIQA Commissioner must, as appropriate, have regard to:

(a) the Universal Declaration of Human Rights (United Nations General Assembly Resolution A/RES/217(III) A (1948); and

(b) such other instruments relating to human rights as the Commissioner considers relevant.

Note: The text of the Universal Declaration of Human Rights could in 2022 be viewed on the United Nations website (http://www.un.org).

Division 2 — Appointment

46NB Appointment of LGBTIQA+ Commissioner

(1) The LGBTIQA+ Commissioner is to be appointed by the Governor-General by written instrument, on a full-time basis.

(2) A person must not be appointed under subsection (1) as the LGBTIQA+ Commissioner unless the Minister is satisfied that:

(a) the person has appropriate qualifications, knowledge or experience; and

(b) the selection of the person for the appointment is the result of a process that:

(i) was merit-based; and

(ii) included public advertising of the position.

(3) Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the LGBTIQA+ Commissioner under a previous appointment under subsection (1).

46NC Period of appointment

(1) The LGBTIQA+ Commissioner holds office for the period specified in the instrument of appointment.

Note: For re-appointment, see section 33AA of the Acts Interpretation Act 1901.

(2) A person must not be appointed as the LGBTIQA+ Commissioner under section 46NB for a period if the sum of the following exceeds 7 years:

(a) that period;

(b) any periods of previous appointment of the person as the LGBTIQA+ Commissioner under that section.

46ND Acting appointment

The Minister may, by written instrument, appoint a person to act as the LGBTIQA+ Commissioner:

(a) during a vacancy in the office of the Commissioner (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Commissioner:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: See also sections 20, 33AB and 33A of the Acts Interpretation Act 1901.

Division 3 — Terms and conditions

46NE Remuneration and allowances

(1) The LGBTIQA+ Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.

(2) The LGBTIQA+ Commissioner is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

46NF Leave of absence

(1) The LGBTIQA+ Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Minister may grant the LGBTIQA+ Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

46NG Outside employment

The LGBTIQA+ Commissioner must not engage in paid employment outside the duties of the Commissioner's office without the approval of the Minister.

46NH Resignation

(1) The LGBTIQA+ Commissioner may resign the Commissioner's appointment by giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

46NI Termination of appointment

The Governor-General may terminate the appointment of the LGBTIQA+ Commissioner:

(a) for misbehaviour; or

(b) if the Commissioner is unable to perform the duties of the Commissioner's office because of physical or mental incapacity; or

(c) if the Commissioner:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with the Commissioner's creditors; or

(iv) makes an assignment of remuneration for the benefit of the Commissioner's creditors; or

(d) if the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(e) if the Commissioner engages in paid employment contrary to section 46NG.

46NJ Other terms and conditions

The LGBTIQA+ Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor-General.

Division 4 — Miscellaneous

46NK LGBTIQA+ Commissioner may obtain information from Commonwealth government agencies

(1) If the LGBTIQA+ Commissioner has reason to believe that a Commonwealth government agency has information or a document relevant to the performance by the Commissioner of functions under this Part, the Commissioner may give a written notice to the agency requiring the agency:

(a) to give the information to the Commissioner in writing signed by or on behalf of the agency; or

(b) to produce the document to the Commissioner.

(2) The notice must state:

(a) the place at which the information or document is to be given or produced; and

(b) the time at which, or period within which, the information or document is to be given or produced.

(3) The time or period stated under paragraph (2)(b) must be reasonable.

(4) A Commonwealth government agency must not, in response to a requirement under this section:

(a) give information in a manner that would reveal the identity of a particular individual; or

(b) produce a document that reveals the identity of a particular individual;

unless the individual has consented to the giving of the information or the production of the document.

(5) If:

(a) subsection (4) would prevent a Commonwealth government agency from complying with a requirement under this section to produce a document; and

(b) the agency is able to provide a copy of the document that has had deleted from it the information that would reveal the identity of the individual concerned;

the agency must comply with the requirement by producing a copy with that information deleted.

(6) In this section:

Commonwealth governme nt agency means:

(a) a Department or authority of the Commonwealth; or

(b) a person who performs the functions of, or performs functions within, a Department or authority of the Commonwealth.

46NL LGBTIQA+ Commissioner must give information to the Commissi on

The LGBTIQA+ Commissioner must give to the Commission such information as the Commission from time to time requires relating to the operations of the Commissioner under this Part.

46NM Minister must table reports of LGBTIQA+ Commissioner

The Minister must cause a copy of each report received by the Minister under this Part to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

5 At the end of subsection 46PV(3)

Add:

; and (h) the LGBTIQA+ Commissioner.

6 Application provision

The amendment of subsection 46PV(3) of the Australian Human Rights Commission Act 1986 made by this Schedule applies in relation to proceedings:

(a) that commence on or after the commencement of this item; or

(b) that commenced before the commencement of this item, and that had not been completed by that commencement.

As I indicated in my second reading contribution, these amendments seek to amend the bill to provide for an LGBTIQA+ human rights commissioner. The Greens have been approached by a variety of organisations and community groups, from across the broader law reform community but especially from the LGBTIQA+ community, who have been asking for this for decades. We've been approached by Just.Equal Australia, who raised the very real issue that the reform in the bill just does not go far enough, and that's why we're moving for the well-overdue appointment of a standalone LGBTIQA+ human rights commissioner. Again, I want to acknowledge the work of my colleague in the other place Stephen Bates, the member for Brisbane, in helping to pull together these amendments and drive forward with this.

This amendment cannot wait. The reason that the Labor government is opposing this amendment now is that they say, 'It doesn't fit neatly in the bill.' Well, tell that to the thousands and thousands of members of the LGBTIQA+ community who want a commissioner who is unambiguously on their side to advance their rights and to protect their interests when the next attack comes. This is a community that went through the appalling marriage equality plebiscite, and thank goodness they won it. Thank goodness we, together, won that, but there were the attacks that came in that plebiscite, and we've seen the platforming of hateful transphobic views from Liberal Party members and other right-wing politicians and commentariats.

The LGBTIQA+ community deserves a commissioner. It deserves a part of the Human Rights Commission institution that is unambiguously on its side. It would have made a material difference in the public debate in the past three or four or five years had this been on the statute books, and there is no reason, apart from bloody-mindedness on the part of the Labor government, for it to wait another day. The model we're proposing here is far from revolutionary.

The model proposed for this commissioner has similar functions to the existing human rights commissioners, but with that special focus on the LGBTIQA+ community. That includes raising awareness of human rights impacts, research and education, and examining existing and proposed laws to assess their likely impact on LGBTIQA+ people and the community. That's exactly what we need. It may well be that in the next 12 months we have another go at religious discrimination laws, and of course we should be thinking ahead and putting in place the commissioner who can help the community through that, can be an advocate for the community through that and can help this parliament, at the end of the day, get the laws right, if that comes again to this chamber.

The lack of such a commissioner is such an obvious oversight, and we can remedy it today. The numbers are in the house today, if only Labor had the decency and the imagination to get on board and support it. The need is clear and, in fact, there have been previous statements from the Labor Party indicating they support this reform. Well, now's the time to test that, because now's the time to see if those statements carry any weight. Do you support it or not? We'll see how you vote.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Shoebridge, I am just seeking clarification on whether your intention is to move amendments (1) and (2) on sheet 1604 together by leave.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

For the convenience of the house, I seek leave to move amendments (1) and (2) together.

Leave granted.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I thank Senator Shoebridge for his contribution. We certainly understand the strong sentiment that has been expressed by members of the community over a long period of time now about a dedicated LGBTIQA+ commissioner, but we are of the view, as I mentioned in summing up, that this bill is not the vehicle to create such a position. The government recognises that it's important to consider how the commission can best operate to promote and protect the human rights of all members of the Australian community, including LGBTIQA+ people.

There is no doubt that there will be further discussion on this proposal, as well as other opportunities to strengthen the work of the commission in the future, but the critical issue that this bill will address is restoring the international standing of our commission by urgently addressing the specific issues around transparent and merit based appointments raised by the global alliance to support the commission's reaccreditation. That is what the focus of this bill is today. As I mentioned before, it is not possible to make such changes as this and for it to go back to the House of Representatives.

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

On behalf of the opposition, I advise that we will be opposing this amendment. The Australian Human Rights Commission Legislation Amendment (Selection and Appointment) Bill 2022 was introduced to clarify the recruitment arrangements for the president and commissioners of the Australian Human Rights Commission, the AHRC, in order to satisfy the requirements of a global alliance of national human rights institutions. This bill responds to a technical process issue raised by that same body's Sub-Committee on Accreditation in relation to aspects of the appointments process for the Australian Human Rights Commission and potential length of tenure of commissioners. LGBTIQA+ rights are already addressed in the work of the AHRC commissioners, including in particular the Sex Discrimination Commissioner, Kate Jenkins, so this amendment is not required.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Well, of course the coalition won't support this amendment, and that's one of the reasons they got thrown out of government. That's one of the reasons we have a new parliament with a majority in this chamber and a majority in the other chamber that is meant to be unambiguously committed to supporting the rights of the LGBTIQA+ community. That's one of the reasons the coalition is in opposition. And the only rationale given by the government for not supporting this urgent, necessary and fundamentally right amendment is that 'this bill is not the vehicle'. I don't think the LGBTIQA+ community cares which vehicle is used. It could be Uber, it could be a taxi, it could be a bike, it could be this bill. The vehicle isn't relevant. What's relevant here is getting the substantive amendment through, getting the commissioner in place. For the community to hear that response from the government, when they know they've got the numbers here right now to achieve the reform, and the answer is, 'Computer says no', well, that's a deeply disappointing outcome.

As I said before, of course the coalition, with their current mindset—not all, but an uncomfortable chunk of the coalition—that refuses to show decency to this community, are going to say no. But why is Labor joining with them? Why is Labor joining with the coalition to say no to this? We haven't heard an answer—well, no persuasive answer—and it's a deeply unfortunate precedent to set in this new parliament. I thought things had changed.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Minister, the bill is responding to concerns raised internationally by the Human Rights Council around the status of the commission and the commissioners. They've also raised concerns in the past about the fact that Australia, even as a signatory to the ICCPR, has not legislated federally for the protection of all parts of our community, including those who hold a religious faith. Can you update the Senate on the government's commitment or plans to address those concerns which also come from these international bodies?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We remain committed to introducing legislation to end discrimination against people with religious belief.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

As this amendment is alluding to, there is concern amongst various parts of our community that the Human Rights Commissioner, with a broad remit, doesn't cover the detailed support for elements of our community, and the same concern has been raised by people of religious communities in Australia. Within the ICCPR, article 2 includes protection of people against discrimination because of their religious faith. Article 18 is specifically around having freedom of thought, conscience and religion, including the ability to practise that with their community. Article 19 says that everyone shall have the right to hold opinions without interference. Article 22 says that they shall have the right of freedom of association with others. And article 27 may in fact be applicable to communities here now. For example, the latest census says that even the Christian community is now a minority. Article 27 says that, in states where ethnic, religious or linguistic minorities exist, members of such minorities shall not be denied the right in community with other members to enjoy their own culture or profess and practise their own religion. As the government considers its response to those encouragements from the international community and the Human Rights Council to specifically legislate for religious freedom and protection from discrimination, will it also consider the appointment of a religious freedom commissioner?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government will consider all those matters as part of our consultation process in regard to the religious discrimination bill.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Minister, does the government accept that in the example of Mr Thorburn, which we saw just recently, where, through no words or actions of his own but by mere association, he was discriminated against and, in the opinion of some legal experts, has been subject to a constructive dismissal, such protection is required for people of faith in Australia?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I don't think it is appropriate for me to comment on that particular case but I certainly am aware of the commentary around the abandoned appointment of Mr Thorburn.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Does the government accept, in the conclusions found by the Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill back in 2017, that, in order for Australia to remain a plural democracy where different views are respected and legal, action is required to protect both people who have different views on gender and people who have different views in terms of their religious faith?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I assure you, Senator Fawcett, that the government remains committed to introducing legislation that will prohibit religious discrimination.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, will the government ensure there is an LGBTIQA+ commissioner in place for that community before the next round of sometimes divisive and marginalising commentary happens associated with religious discrimination? Will you ensure the commissioner is in place before this parliament goes down that path again?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As I have said repeatedly now, we understand the concerns expressed by the community. I know the Attorney-General is committed to continuing discussions on this important matter and how best the Human Rights Commission can ensure that people from LGBTIQA+ communities are protected.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that the amendments (1) and (2) on sheet 1604 be agreed to.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

It now being 1.30 it is time to move to two-minute statements but, with the indulgence of the chamber, I would like to put the final questions first in order to finalise this bill. The question now is that the bill stand as printed.

Bill agreed to.

Bill reported without amendments; report adopted.