Senate Legal and Constitutional Affairs Legislation Committee [Part 2], , 56:57 to 1:07:19
The Australian Human Rights Commission discusses the legal definitions of gender identity under the Sex Discrimination Act.
Topics: Human rights, Law reform
Speakers: Senator The Hon Michaelia Cash, Dr Anna Cody, Hugh De Kretser, Senator Nita Green, Senator Jana Stewart
officers from the Australian Human Rights Commission. President Dretz, do you have an opening statement you would like to make?
>> Very very senator.
>> Sure. I get you to speak up. Also, your voice is very soft. Then
>> I'll speak up and project. Um,
>> thank you. Appreciate it.
>> Brief opening statement. Um, senators, I acknowledge the Nanoal and Nambry elders and ancestors, their culture, and their unbroken connection to the beautiful country we're on. I want to acknowledge the devastating attack on Dr. Helen Haines outside her electorate office in Victoria. >> Our thoughts are with her and her family. This attack happened against a backdrop of increasing polarization and threats against politicians. Parliamentarians must be able to carry out their duties safely. We must address intimidation, hatred, threats, and violence that undermine our democracy and democratic institutions. >> I want to recognize that this is the last estimates appearance of my colleague, the human rights commissioner, Lorraine Finlay. Commissioner Finlay's term ends on 21 November this year. And over the course of her term, she has made important contributions on a wide range of human rights issues, including ensuring human rights are considered and protected in responses to emergencies and disasters, implementing Australia's obligations under the optional protocol to the convention against torture to prevent mistreatment of people in detention, protecting the human rights of people in immigration detention, and addressing anti-semitism. I particularly recognize and thank her for her leadership highlighting the impact of new technology on human rights and recommending responses to it. This work has happened at a time of immense technological change. Commissioner Finlay and her team's work has been cutting edge. It has meant that the commission is seen as one of the leading national human rights institutions in the world on these issues. We wish Commissioner Finlay all the best for her move to Europe with her family and sincerely thank her for her contribution to our work.
>> I can just make a few comments from the government. Um >> absolutely minister start um uh um just to um concur with the um comments of the commission from the president. Sorry. Um um the government also thanks commissioner Finlay for her contributions across her five-year term. Um in particular I want to acknowledge um some very important work considering the impact of emerging technologies and artificial intelligence on human rights. Um the inquiry into human rights impacts of the co 19 pandemic and advocating for the prioritization of human rights in future emergencies and participating on national roundt on human rights trafficking and slavery. The government wishes Commissioner Finlay well for her next chapter and no more estimates.
>> Thank you Minister Senator Cash. Uh
thank you very much and could I also acknowledge that this is Commissioner Finlay's last estimates appearance and on behalf of the coalition uh can I sincerely thank you uh Commissioner Finlay uh for your service and you've just had an admirable list uh read out for the hands record but on behalf of the coalition particular we would like to thank you for being a lone voice in the commission in relation to the recognition of the biological rights of women and in particular the only commissioner who voted uh for the exemption to be granted to the lesbian action group and I know that they were very very grateful that they had a voice in the commission that was prepared to stand up for their biological rights. So again, thank you for all you have done. You have championed fundamental freedoms with courage, principle, and common sense, especially during times when it was unpopular to do so. and on behalf of the coalition, we wish you all the very best in whatever the next role is. Uh if I could turn to questions now, um to the sex discrimination commissioner. Uh thank you uh Dr. Cody. Uh you would be aware that the high court refused the special leave application in the giggle and tickle case on the 10th of September. Uh with the result that the full for full full court's decision is now final. Uh I was sadly unable to get a response from the department this morning in terms of in plain English what does the law now mean for for example a women's refuge a women's only organization that wants to exclude a biological male who identifies as a woman um and they don't apply for an
Senator, can I clarify that when you use the phrase biological man identifying as a woman, you're referring to a trans
>> Well, what else would I be referring to? It's a biological man identifying as a
>> So, the Sex Discrimination Act includes within women trans women and it's very important to recognize the dignity of all women in the Sex Discrimination Act.
And you therefore at I'm assuming this is not your personal opinion. This is the law we're talking about because obviously you've now got a full federal court decision which has determined the law. So you are saying that at law under the sex discrimination act it woman does not just mean biological woman. It also means a man who identifies as a woman.
I'd refer you senator to the explainer on our website which gives clear indication of the meaning that is now understood within giggle and tickle.
That's very kind of you to refer me to something but I would like to have the discussion with you at estimates tonight for the hands record. So again what does the sex discrimination act at law now reflect in relation to the recognition of a woman? Is it merely biological?
I refer you to that explainer and also to my previous answers in Senate Estimate Senate.
>> So your previous answers were that men who identify as women are recognized as law as women. Is that correct?
>> I refer you, Senator, to my previous answers.
>> Do you have an issue with answering these questions, Dr. Cody?
>> I've already answered them, Senator.
>> Well, I'm asking you again, it's a separate estimates hearing. The last time we discussed the full federal court case, I am now discussing that was actually on then appealed to the high court. It is now the stated law in Australia. There's no dispute about that now. And I'm trying to explore with you given the department this morning were unable to provide me with any further clarification on what the law actually says. Are you able to define under the Sex Discrimination Act what a woman actually entails?
>> As I have said, Senator, I have answered that question previously and because the High Court has refused special leave, that answer from the full federal court is the same answer.
>> Right. So that means a man who identifies as a woman is a woman for the purposes of the Sex Discrimination Act. So as the sex discrimination commissioner is the only way that you could therefore recognize biological women as biological women and give them the ability without an exemption uh to turn away biological men who identify as a woman. Is it now to change the law?
Senator, there are measures within the Sex Discrimination Act. The Sex Discrimination Act protects people from discrimination on the basis of sex, sexual orientation, gender identity, pregnancy, breastfeeding, marital status, and interex status. And there are measures within that, special measures which an organization or a business can take if they are for the purpose of achieving substantive equality which enable different treatment that is lawful. There are also exemptions within the sex discrimination act which enable different treatment and there is also a process for seeking temporary exemptions under section 44 of
the act. Is that what the lesbian action group did three years ago? Tried to seek an exemption, which I said Commissioner Finlay was kind enough to vote in favor of. The lesbian action group merely wanted to meet as biological lesbians and they sought an exemption and three years later they're still going through the court process. Is that correct?
>> The matter has been referred to the Administrative Review Tribunal for decision.
>> Yes. And can you just remind me what was the status of the commission in relation to any of those cases? Did you intervene
>> We were a party at the federal court
arguing for the exemption for the lesbian action group or against it?
No, the case was around the um appealing the decision of the tribunal, the first decision of the tribunal, the administrative review tribunal. And we were a party uh to that case.
>> And what were you arguing in that case?
>> Uh there it was around the exemption process. Senator,
>> yes. So did the commission grant the exemp did you as the sex discrimination commissioner grant an exemption to the lesbian action group so that they could meet as biological women and exclude biological males?
>> The exemption decision is a decision of the whole commission.
>> Yes. But I'm asking you as the sex discrimination commissioner what did you vote?
>> I refer to my previous answer on this.