YWCA Darwin s Submission to the Modernisation of the Anti- Discrimination Act 1992 (NT) Discussion Paper. January 2018

Transcription

1 YWCA Darwin s Submission to the Modernisation of the Anti- Discrimination Act 1992 (NT) Discussion Paper January 2018

2 About YWCA Darwin YWCA Darwin is a non-religious organisation that achieves positive change by providing advocacy, programs and services for women, families and young people in Darwin. Operating within a feminist and social justice framework, YWCA Darwin s vision is for empowered individuals, women and families in a safe and inclusive community. YWCA Darwin is a strong advocate for women s rights, gender equality and raising awareness around domestic violence and does this through not just the programs, but also through involvement in steering committees, working groups and collaborative partnerships. YWCA Darwin utilizes a human rights-based approach to its work, particularly focusing on the rights to non-discrimination and equality, placing emphasis on realising the rights of women and girls, especially the rights of those who often experience multiple and/or intersecting forms of discrimination. The organisation is part YWCA Australia, a national and international movement for women s rights. YWCA Australia recognises the interdependence of human rights as the realisation of economic, social and cultural rights are as critical as the realisation of civil and political rights. 1 Some of the changes that the organisation advocates for: - a diverse range of primary prevention measures so that targeted and appropriate programs respond to the needs and experiences of women and girls who face multiple and/or intersecting forms of discrimination (that vary from biological, social and cultural categories such as ability, sexuality, race, religion, gender identity, economic status, age, etc.) in order to effectively address issues of gender inequality - the inclusion of the status of being a victim/survivor of domestic and/or family violence as a protected attribute in anti-discrimination laws in all areas of public life - the adoption, implementation and review of anti-discrimination laws and policies that support women to access education, workplaces and public life in a non-discriminatory manner - Access for young women to non-judgemental information and services in relation to reproductive and sexual healthcare - Recognising that violence against women and girls is a form of discrimination that is a major barrier to achieving gender equality - Work to address the gender-based stereotypes that lead to employer discrimination towards women, which should include addressing unconscious gender bias that influences the selection of women for leadership positions and the types of support provided to women leaders; - the adoption, implementation and review of anti-discrimination laws and policies that support women to access education, workplaces and public life in a non-discriminatory manner - the decriminalisation of abortion in all Australian jurisdictions in order to promote the wellbeing of all Territorian women and to protect medical practitioners from criminal liability. 2 1 YWCA Australia Policy Platform Document 2 YWCA Australia Policy Platform Document

3 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) states that state parties to CEDAW are obligated to take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country. 3 Below is YWCA Darwin s response to the NT Government s Modernisation of the Anti- Discrimination Act 1992 Discussion Paper. Please also refer to YWCA Table of Responses to the Discussion Paper (Attachment A). 1. Is updating the term sexuality to sexual orientation without labels appropriate? Are there any alternative suggestions? YWCA Darwin agrees with the use of the term sexual orientation to replace sexuality. Additionally, YWCA Darwin concurs with Rainbow Territory s recommendation that sexual orientation be defined as a person s capacity for emotional, affectional and/or sexual attraction to individuals of a different gender identity, the same gender identity or more than one gender identity Should the attribute of gender identity be included in the Act? YWCA Darwin strongly endorses the attribute of gender identity to be included as a protected attribute in the Act to ensure a more inclusive coverage, and to be more consistent with the Sex Discrimination Act (CTH). 3. Should intersex status be included as an attribute under the Act? YWCA Darwin supports the inclusion of intersex status as a protected attribute in the Act. According to the Australian Human Rights Commission, intersex individuals still experience discrimination, harassment and hostility in many parts of everyday life; in public, at work and study, accessing health and other services and securing proper recognition of their sex in official documents. Intersex status discrimination happens when a person is treated less favourably than another person in a similar situation because that person has physical, hormonal or genetic features that are: neither wholly female nor wholly male 3 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 4 Rainbow Territory s Submission extract to the Modernisation of the Anti-Discrimation Act 1992 (NT) Discussion Paper.

4 a combination of female and male, or neither female nor male. 5 This therefore makes it crucial that intersex status be a protected attribute in the Act. 4. Should vilification provisions be included in the Act? Should vilification be prohibited attributes other than on the basis of race, such as disability, sexual orientation, religious belief, gender identity or intersex status? YWCA Darwin agrees that vilification should be prohibited for all the attributes listed in the Discussion Paper. This is especially important because as stated in the Discussion Paper, all states in Australia with the exception of the Northern Territory have enacted legislation that criminalises vilification. Additionally, the Act should also include the prohibition of vilification on the basis of assumption, ie. If someone is assumed to be gay/lesbian, but is actually not, and amended to make it unlawful for a person to vilify another anytime or anywhere. 5. Should the Act create rights for people experiencing domestic violence in relation to public areas of life such as employment, education and accommodation? YWCA Darwin strongly supports the creation of rights for people experiencing domestic violence in relation to the range of scenarios (employment, accommodation, education) as laid out in the Discussion Paper. Access to safe accommodation, education and employment is a human right and survivors of domestic and family violence need to be able to access these services with no fear of discrimination. Safe, accessible and affordable accommodation is critical for women to leave violent relationships and establish new, stable homes. In addition to this creation of rights, YWCA Darwin encourages and recommends that workplaces undertake Domestic and Family Violence Work Aware Training provided by NT Working Women s Centre in order to be more sensitive to those experiencing domestic and family violence. Further to this legislation review, YWCA Darwin recommends a tenancy law reform be put in place for those experiencing domestic and family violence. Currently in most Australian states and territories (Victoria, Australian Capital Territory, Tasmania, Northern Territory South Australia and Queensland), a victim is not able to immediately terminate her lease If a victim terminates an agreement before the contractual end date, without the appropriate order from the tribunal, she remains liable for compensation to her landlord and is at risk of being listed on the private tenancy databases as an unsuitable tenant, inhibiting her ability to find a subsequent rental property. 6 5 Sexual orientation, gender identity and intersex status discrimination. 6 Tenancy law reform urgently required to help domestic and family violence victims.

5 This is especially crucial if someone experiencing domestic and family violence needs to leave her current rented accommodation urgently, and is unable to due to the repercussions as stated above. YWCA Darwin also strongly reiterates the Discussion Paper s statement that breaking the cycle of domestic and family violence requires a community response and that including this attribute in the Act is part of a broader community solution. YWCA Darwin also recommends replacing the term domestic violence with domestic and family violence as this is encapsulates the full scale of the actual issue. 6. Should the Act protect people against discrimination on the basis of their accommodation status? YWCA Darwin agrees that the Act should protect people against discrimination on the basis of their accommodation status, and that including accommodation status as a protected attribute under the Act would provide rights for people without a permanent home to have equal access to the areas covered by the Act without unreasonable barriers. Additionally, YWCA Darwin strongly recommends that the Act includes the capacity to ensure that databases such as tenancy blacklist database are free from discrimination. Currently, there is no regulation that protects tenants from having their information recorded in the database, which often prevents them from securing accommodation. This is a form of discrimination by property agents who can discriminate against tenants based on a plethora of reasons including race, gender identity, ethnicity, socio-economic status, relationship status as well as those experiencing domestic and family violence. YWCA Darwin recommends that property agents who put names on the tenancy blacklist database provide a checklist of issues to the governing body to be approved before proceeding. This is to ensure that the process is fair and free from discrimination. YWCA Darwin also recommends that the Act include incarcerated individuals who are discriminated against due to their lack of accommodation. The organisation s Women of Worth (WoW) program, which aims to empower women involved in the justice system to implement positive lifestyle changes and reduce reoffending and offers practical assistance to reengage with the community, has clients that find it difficult to find employment, due to their incarceration status and lack of permanent address. Many WoW clients have experienced struggles with submitting applications whilst incarcerated due to lack of a residential address (ochre card or priority housing applications). According to NT Housing, incarcerated people cannot be placed on the priority housing list due to current incarceration. Instead clients are being put on the general waiting list. One of WoW s clients has been in prison for 4 years but because she had not been put on the priority waiting list, she now has another 7 years to wait for a housing allocation.

6 7. Should lawful sex work be included as an attribute under the Act? YWCA Darwin agrees with the inclusion of lawful sex work to be included as a protected attribute under the Act. Furthermore, YWCA Darwin support the further review of current legislation, and support the advocacy work of the Sex Worker Outreach Program in the Northern Territory (SWOP NT) in consultation with NT based and FIFO sex workers and the NT Sex Worker Reference Group (SWRG). These groups advocate for stakeholders to work with NT sex workers to support safer working choices and workplace environments for sex workers who work in the Northern Territory by endorsing and facilitating avenues to decriminalise sex work. Steps required include: Abolishing the Northern Territory Prostitution Regulation Act (NTPRA) to allow for worker and business compliance with existing NT legislation; Ensuring sex workers are protected by respective WHS legislation being a Code of Practice; and Ensuring sex workers are protected by anti-discrimination laws. 8. Should socioeconomic status be included as a protected attribute? According to the Australian Bureau of Statistics, socioeconomic status is the social and economic position of a given individual, or group of individuals, within the larger society. Socioeconomic status is usually, but not always, conceived of as a relative concept and can be measured for the individual, family, household or community/area. It also defines relative socioeconomic advantage and disadvantage in terms of people s access to material and social resources, and their ability to participate in society. 7 Keeping this definition in mind, YWCA Darwin endorses the inclusion of the term socioeconomic status be included as a protected attribute in the revitalised Act, as the organisation believes strongly that an individuals socioeconomic status should not be a reason to discriminate. 9. Should the Act be broadened to include specifically trained assistance animals such as therapeutic and psychiatric seizure alert animals? YWCA Darwin agrees that the Act should be broadened to include specifically trained assistance animals as stated in the Discussion Paper. YWCA Darwin further recommends that service and support animals required by survivors of domestic and family violence also be included in the new Act. The American National Domestic Violence Hotline states that: the effects of domestic violence on survivors can be profound and long lasting. As medical and cosmetic technology has progressed, survivors have more options for removing or changing the physical evidence of abuse. But, healing the emotional effects can be more challenging. One option for survivors who are in the process of healing from abuse is working with a support or service animal. 8 7 Australian Bureau of Statistics Information Paper: Measures of Socioeconomic Status 8 Support Animals: Helping to Heal.

7 Case Study from YWCA Darwin s Keeping Women Safe in Their Homes (KWSITH) Program Natasha* and her daughter were referred to KWSITH program by Dawn House, to assist them with securing their accommodation against the Perpetrator. Natasha is an ex-defence employee suffering from a range of medical issues, including physical and mental, that have seen her hospitalised a few times, and for extended periods. Part of her treatment includes a Medical Assist Dog. Natasha had custody of her daughter due to ongoing Domestic and Family Violence (DFV) issues with her ex, however due to the severity of her illness she had to consent to handing over custody, as she was unable to look after her daughter. Natasha identified that services for crisis accommodation do not cater for Medical Assist animals, and this posed another barrier when looking for service, including added stress. While Dawn House was able to assist her temporarily in a shared shelter, she advised that it was not suitable to have an animal in, and she felt that the other residents were not happy with having the animal present. Natasha was relocated into a townhouse, which was more suitable for her needs but referred to KWSITH for Safety Planning and Security Upgrades. Natasha identified that with her and her daughter s medical appointments, unemployment/job seeker requirements and legal issues with DFV incidents, she had to regularly call ahead and confirm bringing her Medical Assist dog, as she had previously had many issues with just turning up. She identified that she tries to only shop in the same places, as going to new locations regularly results in security or retail staff causing and issue with her bringing her dog. Natasha always has her dog equipped with the appropriate harness and identification equipment, but still receives resistance at unfamiliar establishments, which brings added stress and requires preplanning on her behalf at all times. 12. Should the restriction of areas of activity on sexual harassment be removed? YWCA Darwin agrees that the restriction of areas of activity on sexual harassment be removed from the Act. Sexual harassment can occur at any time and place, and by restricting it to specific areas as laid out in the Discussion Paper, the current Act leaves it open for sexual harassment to be lawfully rampant in areas not mentioned, and will lack the prevention and protection necessary for individuals who may be exposed to such conduct. 13. Should the definition of service be amended to extend coverage to include the workers? YWCA Darwin strongly agrees that the definition of service be amended to extend coverage to include individuals providing a service. Individuals providing services have the right to protection against discrimination, and should include all types of services provision including emergency services.

8 14. Should any exemptions for religious or cultural bodies be removed? YWCA Darwin strongly recommends that there should be no exemptions in the antidiscrimination law. 15. Should the exclusion of assisted reproductive treatment from services be removed? YWCA Darwin agrees that the exclusion of assisted reproductive treatment from services be removed. Additionally, YWCA Darwin strongly urges that the NT government does not impose any registration requirement that would discriminate against any individual accessing assisted reproductive treatment services unless there are medical or criminal reasons not to. 16. What are your views on expanding the definition of work? YWCA Darwin endorses expanding the definition of work to include volunteers, and also suggests including board members/directors in this definition. 17. Should section 24 be amended to clarify that it imposes a positive obligation? YWCA Darwin agrees that section 24 be amended to clarify that it imposes a positive obligation. 18. Is the name Equal Opportunity Commissioner preferred to the name Anti- Discrimination Commissioner? Would the benefits of a new name outweigh the financial cost that comes with re-naming an office? YWCA Darwin has no position on this question, but we do recommend that the financial cost be weighed against the benefits of renaming the office taking into account that the money could be used for community purposes, education and support. 19. Is increasing the term of appointment of the ACD to five years appropriate? Should the term of appointment be for another period, if so what? YWCA Darwin agrees that it is appropriate to increase the term of the ACD to five years. 20. Should definitions of man and woman be repealed? YWCA Darwin agrees that the definitions of man and woman be repealed as it does not include different gender identities. Instead, YWCA Darwin recommends that these two words be replaced with the term individual to be more inclusive and equal. 21. Should the term parenthood be replaced with carer responsibilities? YWCA Darwin agrees that the term parenthood be replaced with carer responsibilities as this will protect all carers from discrimination.

9 22. Should the term marital status be replaced with relationship status? YWCA Darwin recognises that individuals can be in different kinds of relationships and by using the term marital status, the Act marginalises and discriminates against those who are not married. YWCA Darwin therefore strongly endorses the replacement of marital status with relationship status. Conclusion YWCA Darwin appreciates the Northern Territory Government s commitment and priority in reforming the Anti-Discrimination Act 1992 (NT), and appreciates the opportunity to comment on the comprehensive discussion paper. YWCA Darwin further recommends that individuals from a diverse range of backgrounds are consulted and included in expert advisory groups in order to have a holistic, inclusive and fair review of the Act. YWCA Darwin supports anti-discrimination laws that have strong protections against gender based discrimination, including promoting substantive equality and providing effective remedies against systemic and intersectional discrimination. YWCA Darwin recognises the responsibility of all levels of government to contribute to the realisation of the human right to health. As stated in Article 12 of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), State parties have an obligation to take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those relating to family planning. By making the amendments proposed above, the NT government will be complying with Article 12 of CEDAW, and furthermore, taking many steps forward in terms of eliminating discrimination not just against women, but against every individual who has been discriminated against due to the many different intersecting reasons as stated in the Discussion Paper. Every person should have fundamental human rights regardless of their race, religion, ethnicity, gender identity, socio-economic status, and a myriad of other situations. YWCA Darwin believes that this review is the perfect opportunity for the Northern Territory Government to lead by example in revitalising the Anti-Discrimination Act, so that individuals from all walks of life are able to lead a life free from hatred and fear. We look forward to a leading-edge legislation that employs best practice and standards against discrimination. Jessica Watkinson Chief Executive Officer YWCA Darwin

10 Attachment A: YWCA Darwin Table of Recommendations Point Position Recommendation Agree with some 1 Is updating the term sexuality to sexual orientation without labels appropriate? Are there any alternative suggestions? 2 Should the attribute of gender identity be included in the Act? 3 Should intersex status be included as an attribute under the Act? 4 Should vilification provisions be included in the Act? Should vilification be prohibited attributes other than on the basis of race, such as disability, sexual orientation, religious belief, gender identity or intersex status? 5 Should the Act create rights for people experiencing domestic violence in relation to public areas of life such as employment, education and accommodation? 6 Should the Act protect people against discrimination on the basis of their accommodation status? 7 Should lawful sex work be included as an attribute under the Act? Sexual orientation be defined as a person s capacity for emotional, affectional and/or sexual attraction to individuals of a different gender identity, the same gender identity or more than one gender identity Agree Included as a protected attribute in the Act Agree Included as a protected attribute in the Act Agree with some Agree with some Agree with some Agree with some agrees that vilification should be prohibited for all the attributes listed in the Discussion Paper include the prohibition of vilification on the basis of assumption, ie. If someone is assumed to be gay/lesbian, but is actually not. amended to make it unlawful for a person to vilify another anytime or anywhere encourages and recommends that workplaces undertake Domestic and Family Violence Work Aware Training provided by NT Working Women s Centre safe, accessible and affordable accommodation is critical for women to leave violent relationships and establish new, stable homes a tenancy law reform be put in place for those experiencing domestic and family violence. replacing the term domestic violence with domestic and family violence include a section on the tenancy blacklist database to avoid discrimination include incarcerated individuals who are discriminated against due to their lack of accommodation Ensure sex workers are protected by antidiscrimination laws. Further legislation review in relation to: Abolishing the Northern Territory Prostitution Regulation Act (NTPRA) to allow for worker and business compliance with existing NT legislation; and Ensuring sex workers are protected by respective WHS legislation being a Code of Practice.

11 Point Position Recommendation 8 Should socioeconomic Agree Included as a protected attribute in the Act status be included as a protected attribute? 9 Should the Act be broadened to include specifically trained assistance animals such as therapeutic and psychiatric seizure alert animals? Agree with some Service and support animals required by survivors of domestic and family violence should also be included 12 Should the restriction of areas of activity on sexual harassment be removed? 13 Should the definition of service be amended to extend coverage to include the workers? 14 Should any exemptions for religious or cultural bodies be removed? 15 Should the exclusion of assisted reproductive treatment from services be removed? 16 What are your views on expanding the definition of work? 17 Should section 24 be amended to clarify that it imposes a positive obligation? 18 Is the name Equal Opportunity Commissioner preferred to the name Anti- Discrimination Commissioner? Would the benefits of a new name outweigh the financial cost that comes with re-naming an office? Agree Restriction of areas of activity on sexual harassment be removed Agree Extend coverage to include individuals providing a service, which also includes the police Agree There should be no exemptions in the antidiscrimination law Agree with Agree with No registration requirement that would discriminate against any individual accessing ART services unless there are medical or criminal reasons not to To include volunteers Include board members/directors Agree Section 24 be amended to clarify that it imposes a positive obligation No position Weigh the financial cost against the benefits of renaming the office 19 Is increasing the term of appointment of the ACD to five years appropriate? Should the term of appointment be for another period, if so what? Agree Increase the term of the ACD to five years

12 Point Position Recommendation 20 Should definitions of Agree with Replaced with the term individual man and woman be repealed? 21 Should the term parenthood be replaced with carer Agree Carer responsibilities to replace parenthood responsibilities? 22 Should the term marital status be replaced with relationship status? Agree Replace marital status with relationship status