Senate Legal and Constitutional Affairs Legislation Committee [Part 2], , 2:02:50 to 2:28:55
The committee reviews legal costs from the Lesbian Action Group case and research into online misogyny and extremism.
Topics: Government legal services, Human rights
Speakers: Senator David Shoebridge, Dr Anna Cody, Robert Fitzgerald, Senator The Hon Michaelia Cash, Hugh De Kretser, Interjection, Senator Jana Stewart, Speaker 11
>> I've just got one last question for this and then I will be um Senator Bl. >> Thank you very much, Chair. Um now, the High Court refused lay primarily on the construction of section 7D of the act. Has the commission sought or received any legal advice on whether the meaning of sex itself remains open to further litigation? And does the commission consider the current state of the law adequately protects biological rights of women to single sex spaces and
>> There are two questions within that question. Senator, if you could separate them out, then I'll answer each
>> You want me to ask you one at a time? Correct. >> Certainly. Okay. So, um, has the commission sought or received any legal advice on whether the meaning of sex itself remains open to further litigation?
>> Not that I'm aware of.
>> You haven't? Okay. And does the commission consider the current state of the law adequately protects biological women's rights to single sex spaces and
opportunities? And as I said previously, the sex discrimination act provides protection from discrimination on the basis of sex and on the basis of sexual orientation and all the other grounds and that the understanding of woman is an inclusive definition.
>> This is quite specific though. I'm asking whether the commission considers the current state of the law adequately protects biological women's rights to single sex spaces and opportunities.
that it protects all women.
>> No, no, no. I haven't I haven't asked you that because you use a different definition of women that that is really quite offensive. Um I'm asking you whether you believe whether the commission feels as though the law is adequately protecting the rights of biological women to single sex spaces and opportunities. It's a yes or no.
the um commission or I my uh understanding of the sex discrimination act is that it has the means within it to provide protections and balance the interests and rights of all women that includes >> Can I add one clarification to a previous question that Senator Cash asked which was our role in the lesbian
action group? I was about to ask about that. So that was exactly the topic I
was about to go to. >> So yes, you can you can you can uh yes >> uh answer a question and >> because that was exactly where I was about cuz I'm going to I als I'm also going to hand the call to Senator Cash. So if you want to um respond.
>> So in relation to that that we weren't formally we became a party because there was no other contradictor and that's why we were in the full in the uh sorry in
the federal court. So and and that was my question. Could you confirm that the commission was the only contradictor? Was that in the federal court? Was it
>> the government? I don't The government didn't appear as a contradictor. That was the issue. That's why we were there. >> I think perhaps Senator, we take this question on notice to provide an absolutely correct answer. Are you a
contradictor before the art currently?
we're we're not involved in the case.
>> No. So you're not involved in the art
case? >> No, that's correct.
>> You refused it at first instance. It then went to the art.
>> Yeah. My my understanding is we weren't involved at the art. We weren't involved in the federal court and we're now not involved in the remitt back to the art. But but we will clarify that.
>> But when did you become a contradictor?
>> That's what I'm saying that we we were uh that we weren't a contradictor that the government normally stands in the shoes of the commission. That's the usual practice. Uh but again because of the I I I want to provide a completely accurate answer for the committee. So it's can I take that on notice and we'll uh clarify for the committee.
>> Did you provide any submissions to either the art or the federal court in relation to the lesbian action group application?
>> My understanding is we didn't but again I I cave at that with uh
>> Commissioner Cody. Do you know as the sex discrimination commissioner, did you provide any submissions to either the art or the federal court in relation to the lesbian action groups application for the exemption?
>> Senator, I I would prefer to take this question on notice so to be 100% accurate.
>> How do you not know that? This this case has been going on for three years. It's been discussed publicly across Australia. You don't know if the submission at the commission provided submissions. Is that is that your evidence to this committee?
>> My evidence to the committee is that it's a question I've taken on notice.
>> Okay. You don't know here today if you provided a submission to either the art or the federal court.
>> Sorry, Senator. Sorry, I don't want to.
>> Is that your evidence? You don't know.
>> It's a question I've taken on notice,
Senator. Good grief. Um, you know, you don't take something on notice when you have the information in your possession. So, as your evidence to the committee that it is not within your knowledge as to whether or not the sex discriminate, the Australian Human Rights Commission or the Sex Discrimination Commissioner provided a submission to either the ART process or the Federal Court process in relation to the Lesbian Action Group's application for an exemption. Senator,
can I clarify because the the team is listening to this and they're advising me that that we were a contradictor in the tribunal and the court. So I I retain what I said before. Yes, my apologies. >> Thank you. You were a contradictor. This was because there was no other contradictor and we provided submissions in both forums. So my apologies and I'm happy to be able to clarify that
>> and I do appreciate you being upfront about that. Um do you have to accept the role as a contradictor?
can we take that on notice and get back to you about the usual course because >> when when our decisions are appealed there's a process with the government where we talk to the government and uh and sometimes the government appears as a contradictor.
>> Yep. Just very very quickly in relation to um the cost protection act, did the commission campaign for the cost protection act on the basis that adverse cost deterred vulnerable litigants?
>> We had a more complex position than uh campaigning for it. We had a had a range of different positions over a period of time and ultimately uh we believed that there our submission was that there should be less of a disadvantage on an applicant bringing a case uh uh to the federal court, but I wouldn't frame it as campaigning for it.
>> Okay. But can I confirm you then sought costs against the lesbian action group in their case?
>> The in the lesbian action group case, the parties or the commission and the lesbian action group agreed that they would follow the normal rule that costs would follow whoever was successful and in that situation uh the costs were awarded against the commission. Did the
commission ever consider simply not seeking costs against the lesbian action group given that they are a volunteer organization?
>> It was an agreement between the lesbian action group and the commission that they would follow the normal rule in
>> External council, I understand, cost $38,000 before GST plus in-house staff time. What was the total cost to the commission of opposing the lesbian action group across the tribunal, the federal court, and the appeal?
In the tribunal, it was uh 10,700 and in the federal court, I can give you the the individual amounts, but I can't add them up in my
head. >> That's okay. individ individual amounts of fine.
>> Uh council fees and dispersements are $16,832. Flights and accommodation $1,966. Transcript 2,134. And then the costs that we paid to lesbian action group was 125,000.
The cost you paid
because we lost. So, we paid the lesbian action group's costs.
>> Yes. But then you sought costs against the lesbian action group,
>> but they weren't awarded in our favor because we lost.
>> Right. Okay. So, you ended up having to pay the lesbian action group.
>> Correct.
>> Okay. So, that was $125,000 that you paid to the lesbian action group. Is that correct? >> That's correct. And that was on top of all of the other
>> our own costs.
>> Your own costs. Okay. But the exemption still has not been granted. I'll >> Yep. Because otherwise we're
>> um Senator Blight's indicated she's got one quick follow-up question because uh Senator Schub has got a short block but it's not for Commissioner Cody. So >> Oh, sorry. Apologies Senator Schub. Uh very quickly, one question
>> from Senator Cash's last question. Um Dr. Cody, how many exemptions um or special measures exemptions have you granted during your tenure
I don't grant special measures decisions. That is something that is either uh accepted that no exemption is needed and therefore a special measure applies. And in terms of exemptions, they are published on our website. From memory, uh, the commission has granted four
>> Thank you. Thank you, Senator [clears throat] BL. Senator Shoebridge,
>> Thanks all for your attendance. It always ends up being late. I'm sorry about that. Um, and um, but I appreciate all the work you do and the work of the commission. It's one of those critical institutions that sometimes pushes back against other narratives in society and I just want to thank you all for continuing to do that work. It's really appreciated. Um Dr. Cody, I might start with you. The uh recent research from I think Dr. Sarah Mega from the University of Melbourne suggests that misogyny and anti-feminism are often linked with broader extremist attitudes and forms of prejudice. She published some decent recent paper in this with detailed research. Um, first of all, are you aware of that?
>> I am aware of that research.
>> Yeah. How does the commission's work address those intercont interconnected things, misogyny, often homophobia, transphobia, and other forms of discrimination? And when you look at that research, what implications does it have for us if we're trying to make decisions to stop hate and keep people
We do identify the interlinking between rigid ideas around gender and increasing misogyny within the community. And that was brought out partly through our equal identities report as well as in the most recent report on pregnancy discrimination. And we would see and family responsibilities uh discrimination. We would see that sharing of care and the breaking down of some of those rigid gender roles as being one means to try and tackle the uh rigidity between caring and working and therefore ideas around gender. Uh so that would be one way and also through the education around um sexual harassment and the positive duty would be another means to try and address some of the understandings of uh relationships and what is appropriate behavior within the workplace.
Um when you in your work, if you look at the impact of misogyny in particular, um do do you see it in a um h how do you see it in terms of the sort of age demographics of people who um are perhaps falling down the path of being misogynist? Where do you see the
>> Well, the research shows that in fact that's increasing in younger age groups and that the higher age groups are in fact uh more tending towards gender equality or gender friendly uh attitudes and understandings. So it does demonstrate the need for education across from primary education, secondary education right through into the workplace around the appropriate levels of respectful relationships and consent.
>> Yeah. I mean often the work you do as as a commission is focused upon um governments, you know, as employers, um uh employment relationships, those very formal relationships that are often um uh largely operating at an adult um have you considered undertaking work to focus upon dealing with um particularly young men and um and boys >> um and have you have you considered how you would do some work to address the data that you're seeing?
One of the recommendations coming out of the speaking from experience project was about the need for education around respectful relationships and my colleague the commissioner for children and young people commissioner deparis is looking at some of that work with young people and some of those attitudes
>> and do you see that as combined work between the two commissioners working together on that?
>> It is combined work. We work very effectively together.
>> Yeah. Um, thanks Commissioner. Could I then there's been a lot of discussion this tonight as we've seen every time you've come here from in my, you know, recent memory about the Giggle and Tickle case. um given that the the large amount of public commentary about it, given um the large amount of parliamentary time that's been devoted to it, the discussion about it. Um during that time, have you seen any change in the number of complaints, inquiries or reports of harassment involving trans and gender diverse people? Is is that a have you seen any trends in that regard?
I'm not aware of within our complaint data of whether that has increased, but certainly in our engagements with uh stakeholders in the LGBTQI plus community, there is certainly uh rising um harassment and abuse of trans and gender diverse people. As we know that social media also does translate into real life harassment. And is is that
what the community is telling you that their experience is increasing harassment and what does that mean for sort of daily life of for for our trans community or our gender diverse community? What's that meaning for their
Uh I think that the experience of harassment and denial of identity is very painful for um that very small part of our community but a significant part of our community and makes it very difficult for people to be able to participate fully and to be treated with the full dignity and respect.
>> What about personal safety? I mean that are they speaking to you about concerns about personal safety or impacts on their personal safety?
>> The most recent report in which I spoke was the equal identities report and certainly in those consultations people were concerned about those issues.
>> All right. Thanks Commissioner. Um is um Commissioner, we didn't want your visit to be in vain, so it's nice to see you.
>> Indeed, I think I've just lost a bit.
>> Well, I' Well, I'd ask you to then give double to a charity to to to make up for that. Um, Commissioner, you participated in the aging indifference conference and the one part of the conference communicate highlighted that LGBTQI older people are continuing to experience barriers to inclusive and culturally safe aged care. Um, do do you have any observations about that that that communi that communicate and also what your understanding is?
>> Um, yes. older uh people that are um LGBTIQ and AA plus have always experienced discrimination particularly in relation to residential aged care. Um in inquiry that I headed for the productivity commission in 2010 um we highlighted the need for the cons special needs and considerations of LGBTIQ older people to be taken into account. Immediately following that report, one of the providers, Uniting Church, in fact, issued a new protocol in relation to that community in their own age care. But the evidence to date from the community itself is that they feel that they are still in fact discriminated against. Um that they're not able to be with their partners, that some institutions um treat their their visitors um differently. And so we've got a lot more work to do on that. And the new age care reform act of course requires providers um to in fact take into account a whole range of issues including um the lived experience of people the sex and gender issues and issues in relation to their cultural and spiritual background.
>> All right. Um um is that now a legislative requirement or is and are you responsible in any way for oversighting it?
>> No. uh the the new age care um legislation that came into being in November of last year has about two to three pages of both consumer and human rights in that particular area. They deal with the lived experience of individuals including trauma and as I indicated cultural and spiritual rights. They are not enforcable directly at law. However, uh similar to that which is in the NDIA act, uh they are they are incorporated in practices such as standards, complaint handling accredititation and they can be subject to complaints through the complaint commissioner with the aged care quality and safety commissioner. So that's the body that deals with those particular matters. Um but they are able to be complained about uh but they're not able to be actioned directly at law. um given
there such critical sort of rightsbased um um provisions particularly for the LGBTIQ community, but I I would imagine there'd be other vulnerable communities who need that inclusive wraparound for aged care as well. Um, have you considered um whether or not it might be appropriate for you to undertake an inquiry or some kind of formal body of work um to review how aged care residential facilities are providing that inclusive um environment?
>> Um the answer is no. And just [clears throat] bearing in mind that there is the inspector general of aged care and that particular role um oversightes the entire age care system including that which is provided uh directly by the government and uh uh through the community at large. Uh but it is a matter that I think over time is very important. The question for everybody in relation to age care is how will we ensure that the rights that are embedded into this new legislation are actually given presence in the actual lives of older people. So the notion of an inquiry on ongoing basis um around specific issues or generally I think is very prudent. The question would be who would be best placed to do that.
>> All right. And are you having discussions or is there any formal engagement with that other office? Uh
>> we've had engagement with the um inspector general's office as we've had engagement with the age care quality and safety issues around how in fact these rights become enforceable in the way that I've described. We haven't had discussions in relation to the need for
an inquiry. Um, one other matter that's been raised with my office is um u um people in aged care facilities that are faith-based um uh who are seeking to take advantage of state and territory laws um in relation to end of life um are finding themselves um often in conflict with age care facilities um and their decisions not being respected. and not been um not been permitted in some in some instances. Um have any complaints to that effect been raised with you your
office? Uh not that I'm aware of. Certainly not with me and I'm not aware that it would have come through the complaints area of the commission. Um the legislation is complex because it's a legislation that's been um passed in each state and territory and each state and territory have slightly different versions as to the exemptions that are provided to faith-based residential age care facilities. The vast majority of legislation does not require a faith-based organization to actually facilitate voluntary sister dying, but it also requires them to be able to aid and assist the person to access those services outside of the age care facility. But I just want to indicate, senator, that it does vary from stateto state. um and uh overarching the um the provisions generally in relation to these issues um at a national level would go through the age care quality and safety commission.
>> All right. I thank you very much commissioner. I'm sorry about the vet. Um the um I did have some questions of um commissioner Kais um but I understand she's unwell. Is that right? >> She's unwell sir. those questions in relation to the NDIS reforms and their implementation and what if any work that has given to the commission. I don't know if President you're aware of any of anything in that regard.
>> Well, Commissioner Kais has been closely involved in um providing submissions on behalf of the commission to
>> It's probably best I put those questions on notice to Commissioner Kais.
>> Thank you.
>> Okay. My my final set of questions um are in relation to um uh Queensland as you know has passed a law banning a certain slogan in relation to um uh Palestine and I understand more than 20 people have been charged under those Queensland laws. Um, has the commission president assessed whether or not those laws are compatible with human rights, freedom of political communication? Um, and considered whether or not you would participate in any way in the high court challenge.
>> We uh so uh I'll answer part of the question, which is I know there's parliamentary inquiries that are looking at whether or not those phrases should be banned. We have made a submission to at least one of those parliamentary inquiries uh which said that in general we don't think it's a good idea to ban specific phrases. Uh obviously the um there's those cases are before the high court. We haven't had a discussion as a commission about whether or not the commission should intervene in that particular case uh for interventions relating to constitutional issues. As I understand it, we need the permission of the government to be able to intervene in that case as so we have not sought that permission.
>> All right. Because one of the basic human rights of course is freedom of speech. Of course, that freedom is not unlimited in our country, there's recognized that if you are threatening violence or um uh against another person, that there are reasonable limitations. But the basic concept of freedom of speech is something I assume the commission supports.
>> Absolutely.
>> Yeah.
>> Fundamental human right.
>> Yeah. Uh thanks very much.
>> Thank you Senator Shoebridge. Uh that does conclude the questions that we have for you this evening. I want to conclude by uh saying thanks to Commissioner Finlay. I don't know if we should apologize or uh consider it a estimates blessing that you uh haven't had [laughter] to come to the table. Uh but thank you very much for all the time you've given to us in Senate estimates. Uh you go with our thanks. We'll take a very brief suspension uh while we welcome our next witnesses to the table. Um and we'll also apologize in advance for the estimate speed dating we're about to do to get through the remaining three agencies till 9:30.