The Parliamentary Joint Committee on Human Rights (PJHCR) has accepted AAWAA’s submission to the Inquiry into Australia’s Human Rights Framework.
The Women’s Action Alliance Canberra (WAAC) is a member of the Affiliation of Australian Women’s Action Alliances (AAWAA) brings together women’s liberation groups from the ACT, Tasmania, Queensland, South Australia, and Western Australia, all of whom contributed to and endorsed the submission.
AAWAA is enthusiastic about the prospect of an open, constructive, and respectful discussion of human rights in Australia. We believe that a well-considered human rights act could provide better human rights protections for Australians, especially women, than would re-establishing the earlier Australian Human Rights Framework(AHRF). In addition to this, we hope this inquiry will serve to drive immediate action to remedy critical gaps in existing freedoms and protections especially for women and girls.
In our submission, we made the following points.
The 2013 amendments to the Sex Discrimination Act 1984
The 2013 amendments to the Sex Discrimination Act 1984 created new and unanticipated complications for women and our human rights by introducing a prohibition of discrimination based on “gender identity.” Unfortunately, the drafters in 2013 neglected either to make explicit a statement of principle — that sex discrimination is lawful where the safety, dignity, and privacy of women and girls is at risk — or to extend exemptions to those circumstances where that safety, dignity, and privacy might be impacted. Fast-forward to 2023, and legislative changes at the state and territory level through amendments to births, deaths, and marriages registration acts — which allow men to self-identify as women, including by amending the sex on their birth certificates, but which don’t also provide safeguarding for females in the presence of male-bodied persons — have indeed reduced our protections and created serious gaps in the human rights of women and girls.
Women in prison
The lack of Commonwealth protections coupled with ambiguous laws and regulations at the state and territory levels means that women in prison in Australia must rely on the administrative discretion of local prison authorities to guarantee their fundamental rights to safety and dignity — rights that are spelt out in the International Convention for Civil and Political Rights in the UN’s Standard Minimum Rules for Treatment of Prisoners (the Mandela Rules), as well as in CEDAW (the Committee on the Elimination of Discrimination against Women) — including specific recommendations provided by the CEDAW Committee regarding gender-based violence.
AAWAA has urged the committee to consider the situation for women in Australian prisons, noting the few resources that they have themselves to exercise their rights.
Rape crisis shelters and services
The lack of adequate safeguards in the Sex Discrimination Act also impacts the situation for women and girls escaping male violence in the broader community. Prohibitions on discrimination on the basis of gender identity in the absence of appropriate safeguards for the physical and psychological safety of women and girls places the providers of rape counselling services and domestic violence shelters in legal jeopardy if they choose to provide single sex services.
Even in advance of any human rights act, we recommend a review of the adequacy of the Sex Discrimination Act to protect women and girls.
Developments since 2010 in human rights law and practice impacting children and young people
We have drawn the attention of the committee to the body of professional medical opinion that has found that the evidence base for puberty blockers and cross-sex hormones is weak, that puberty blockers can impact brain maturation and bone health, and that medical transition does not improve mental health outcomes, and indeed impairs fertility and future sexual functioning. Peer- reviewed research has also found that young people with autism and trauma dominate presentations — co-morbidities that indicate other treatments.
The failure of the Australian Government to conduct an impartial assessment of the evidence base for gender medicine as currently practised here, and to properly monitor its application, puts Australia in breach of multiple human rights obligations. The most salient of these obligations is the prohibition on medical experimentation without consent as set out in Article 7 of the International Covenant on Civil and Political Rights30 and the obligations central to the Convention on the Rights of the Child (CRC) to safeguard the special needs of children for care and protection due to their physical, emotional, and developmental immaturity.
AAWAA believes that Australia’s commitment to human rights is rendered meaningless if we fail to protect those who are especially vulnerable, that is, our children and especially those who are autistic or suffering from trauma.
Developments since 2010 in human rights law and practice impacting freedoms of speech and association, especially for lesbians, ‘gender critical’ women, and others
AAWAA is concerned that a right to freedom of association is also emerging as a gap in human rights law and practice for Australian women because a poor understanding, or the questionable application, of the Sex Discrimination Act by service providers is curtailing the rights of women to access facilities and resources (for example, pools, gyms, and social media services) on the basis of sex, even when a range of alternative (non-discriminating) services is also available.
AAWAA is also concerned about emerging restrictions on freedom of expression for Australian women, including the freedom to raise concerns about our rights and protections.
The principle of proportionality
An Australian human rights act must embody the principle of proportionality (which recognises that limitations on rights must be reasonable and proportionate to achieving a legitimate aim) as an essential but insufficient safeguard for human rights. AAWAA supports prohibitions on discrimination that serve to protect the privacy and dignity of all Australians, butnew rights for specific individuals and groups cannot derogate from the fundamental right of women and girls.
Clarity in language: Sex and gender
In providing a right for protection for women and girls, an Australian human rights act would need to demonstrate clarity in language to properly protect women and girls where sex is relevant (such as in the case of having access to certain female-only spaces, services, and protections) and that sex be defined objectively as recorded or observed at birth.
Participatory duties
A duty to actively consult with and engage people who may be impacted by legislative and policy changes is especially important to disadvantaged groups, and this includes women. We recognise the importance of consulting children at the same time noting the recommendations of the Committee on the Rights of the Child to take into consideration the special vulnerabilities of children to peer pressure and bullying — a recommendation that has special significance in the context of the social influences in the development of gender dysphoria.
Enhancing the role of the Parliamentary Joint Committee on Human Rights (PJCHR)
AAWAA supports enhancing the role of the PJCHR, a democratic safeguard to ensure public debate and scrutiny in the event that legislative changes produce unintended consequences, as we assess happened with the 2013 amendments to the Sex Discrimination Act, or when the government fails to act in regards to paediatric gender medicine.
The role of the Australian Human Rights Commission (AHRC)
AAWAA is disappointed that the Australian Human Rights Commission has not adequately addressed the interests of women and children in recent years, in large part through its poorly considered advocacy of gender over sex and by failing to practise the discipline of the participatory duties it now (rightly) advocates.
The AHRC has particularly failed children. Through its amicus curiae interventions to the Family (and Federal) Court in puberty blockade and cross-sex hormones cases since 2004, the Commission presented a simplistic and selective interpretation of the Convention rights of children “to be heard” and to “necessary medical assistance and health care”. These interventions gloss over the complexities of ‘consent’ and the evidence base for medical interventions, presenting the effects of puberty blockers as reversible, or with minimal consequences and as essential in the absence of alternative treatments.
Statements of compatibility
‘Statements of compatibility with human rights’ should not be treated as one-off exercises, but rather require periodic updates to ensure the ongoing validity of the original assessment. In cases where the assessment is no longer valid, the updates should include recommendations for mitigating actions or amendments to the original legislation.
At the same time, the regular review of statements of compatibility would serve both an educational purpose for the community and the bureaucracy and as a deterrent against a government’s suspending or overriding its human rights obligations.
Ideological capture of Commonwealth agencies
AAWAA is concerned that a number of Australian Public Service agencies have compromised their capacity to provide impartial advice to the government including on a range of human rights issues through agencies’ participation in the Australian Workplace Equality Index (AWEI), which is conducted by the LGBT non-governmental organisation ACON. Our concern is that by striving to win points and public recognition under the AWEI scheme — recognition that is celebrated in gala events and in agencies annual reports — agencies have created an irreconcilable conflict of interest.
Freedom of Information
AAWAA is committed to accurate and evidence-based advocacy of women’s and girls’ human rights and protections, for which our right to access information is critical. We hope this committee can recommend that the government properly fund the Office of the Information Commissioner, and other agencies, to fulfil their legally mandated functions.
Final comment
Neither a reinvigorated human rights framework nor a human rights act will guarantee human rights and protections for women and girls without a change in politics, culture, and political culture, including attitudes towards women and children. But the PJHRC can make a good start in that change, including by recommending immediate action to address critical shortcomings in our human rights in parallel with a consideration of the best platform for future human rights protections.
With that in mind, we would like to see the PJCHR recommend that in addition to, and in advance of, any human rights act for Australia that the Australian Parliament
- Update the Sex Discrimination Act 1984 to guarantee safety, privacy, fairness, and dignity for women and girls where sex is relevant
- Recommend an expert inquiry into gender affirmation medicine to ensure that Australia is properly upholding the rights of our children
