A Queer Kind of Law: The Senate Inquires into Sexuality*
| Date | 01 September 1997 |
| DOI | 10.1177/135822919700200405 |
| Published date | 01 September 1997 |
International Journal
of
Discrimination and the Law, 1997, Vol. 2, pp. 317-348
1358-2291/97 $10
© 1997 A B Academic Publishers. Printed in Great Britain
A QUEER KIND OF LAW: THE SENATE INQUIRES INTO
SEXUALITY*
WAYNE MORGAN
Lecturer in
Law,
The University
of
Melbourne, Australia
ABSTRACT
This article examines sexuality anti-discrimination law in Australia.
In
particular, it
focuses on a recent law reform proposal, the Sexuality Discrimination Bill 1995
(Cth.) and a parliamentary inquiry into that Bill.
It
analyses the Bill as reinscribing
heteronormativity, and analyses the inquiry process as producing extremely opposi-
tional visions
of
sexual identity. It also analyses the submissions to the inquiry, in
order to illustrate what lesbians and gay men thought should be included in the
Bill. Finally, it addresses the relationship between queer theory and legal activism.
INTRODUCTION
The
history
of
anti-discrimination laws
in
Australia is a chequered
one. A plethora
of
laws
now
exist, at both state and federal level,
which purport to protect people against discrimination. Most
of
these
laws cover the identity categories which have become
common
place
in
human rights legislation
in
the
common
law world: sex, race,
ethnic origin, religious belief and so on.
The
idea
of
anti-
discrimination law has been relatively well accepted
in
Australia,
although many battles have been fought along the way and contro-
versies still remain. One
of
the remaining controversies surrounds the
identity category 'sexuality'. Should people
be
protected from dis-
crimination
on
the basis
of
their sexuality?
And
if
so, who should
be
covered?
Who
should
be
exempt from complying with any such pro-
visions? A further controversy has surrounded the issue
of
discrim-
ination against same-sex couples
and
how
this should
be
addressed.
These questions were
put
on
the national agenda
in
late 1995
when
the Sexuality Discrimination Bill (Cth.) (the Bill) was intro-
duced into the Australian Federal parliament
by
Democrat Senator
Sid Spindler.
The
Bill was not debated
by
the parliament,
but
was
sent to a committee
of
the Senate for inquiry. The politics sur-
rounding the Bill and its deflection into the inquiry process are
described below.
At
the time
of
writing, the Senate
Committee's
318
Report
on
the Bill was still pending (expected June
or
July 1997).
Once the Committee reports,
it
is unclear what will happen
to
the
Bill. But, for reasons explained below,
it
is unlikely that the Bill will
ever become law.
Despite this,
my
aim here is
to
analyse the Bill and the inquiry
process.
My
analysis is directed towards interrogating two issues.
First, what are the productions
of
sexualities
in
the Bill and the
inquiry process?
How
is sexuality being constructed and what visions
of
different forms
of
sexuality are
put
forward? Secondly, what
would an anti-discrimination
law
look like, imagined from a lesbian
and/or gay point
of
view?1
To
some extent,
my
examination
of
these
two issues could
be
said
to
track a theoretical divide: a divide
between the postmodem (the production
of
sexualities), and the
modem
(the project
of
law
reform).
By
pursuing these twin concerns,
I also hope to explore an uncomfortable contradiction
of
legal activ-
ism:
my
(internally driven) need to
'think
queer' and
my
(externally
enforced) need to speak to
law
in the language
of
liberal legalism.
First, I outline the background
to
the Bill and the Bill itself.
This includes describing the general state
of
sexuality anti-
discrimination law in Australia. I analyse the Bill as
an
expression
of
the limits
of
liberal tolerance, based
on
good will
but
ultimately re-
inscribing heteronormativity.2 Secondly, I examine the inquiry pro-
cess and the submissions made to the Senate committee. I investigate
the networks
of
power
relations which produce sexualities along
highly policed lines. In this section, I also consider the question
of
what a protective
law
would look like, imagined from a
gay
and/or
lesbian point
of
view. I conclude that the approach taken
by
lesbians
and gay
men
could best
be
described as
an
anti-subordination
approach.
3 These two conclusions about the inquiry process lead me,
finally, to address some questions about legal activism: what are the
relations between
'queer'
and
'law'?
THE
BACKGROUND
TO
THE
BILL
AND
THE
BILL
ITSELF:
THE
LIMITS
OF
LIBERAL
TOLERANCE
Human rights law, at both an international and national level, could
best
be
described as based
on
a vision
of
liberal tolerance (Otto
et
al
1995). Australian anti-discrimination
law
participates in the same
vision. Unfortunately, this model
of
liberal tolerance ultimately has
the effect
of
reinforcing heteronormativity.
4 This is demonstrated
by
a review
of
the general state
of
sexuality anti-discrimination law
in
Australia, and
by
an analysis
of
the Bill which is
my
focus here.
319
The State of Sexuality Anti-Discrimination Law in Australia
The
Australian legal system is a federal one.
The
Commonwealth
parliament has
power
to enact legislation
in
specified areas which are
set
out
in
the Constitution.
The
six states have plenary
power
to
enact legislation dealing with any issue and the two internal territor-
ies have broad ranging legislative powers, subject to ultimate control
by
the Commonwealth.
The
laws
of
nine jurisdictions
must
therefore
be
examined to gain a picture
of
anti-discrimination protection
on
the
basis
of
sexuality
in
Australia.
All Australian states and territories except Western Australia and
Tasmania
now
have some protection against sexuality discrimination.
5
The
terminology used
in
each jurisdiction varies widely.
6 So does the
scope
of
the legislation and the exemptions. Victoria's legislation has
the greatest
number
of
problems (Morgan 1996; Stewart 1995) and
New
South
Wales'
legislation is the
most
effective.
Much
of
the state
legislation is ineffective and under utilised, because
of
broad exemp-
tions, difficulties
in
interpretation, and the under-funding
of
the agen-
cies which administer the laws.
The
fact that state laws have been ineffective
in
dealing with
sexuality discrimination is further evidenced
by
a review
of
cases
decided under those laws. Space does not permit
an
extensive ana-
lysis
of
the decisions,
but
it
is worth pointing out that the gay and
lesbian complainants have lost
in
nearly every case.7
There is currently only limited protection from sexuality dis-
crimination under federal law. Both
of
the major political parties
which dominate the parliamentary landscape
in
this country have his-
torically maintained that the Commonwealth does not have the con-
stitutional
power
to
comprehensively prohibit sexuality discrimina-
tiion.
Most
Australian federal human rights law is based, at least
partly, upon the external affairs power, under which the Federal par-
liament
can
implement international treaties and resolutions.
8
Although Australia is a party to the International Covenant
on
Civil
and
Political Rights (ICCPR), and
ILO
Convention 111: Discrimina-
tion (Employment and Occupation) Convention, Federal governments
of
both persuasions have maintained that these Conventions
do
not
empower
them to enact comprehensive sexuality legislation. Both the
ICCPR
and
ILO
111 contain equality guarantees and non-
discrimination provisions which are open ended.
For
example, Art.
26
of
the
ICCPR
states that the law shall guarantee protection against
discrimination
'on
any ground such as race, colour, sex, language,
religion, political
or
other opinion, national
or
social origin, property,
birth
or
other status' (emphasis added).9 Yet, both political parties
(and the Commonwealth Attorney General's department)
10
maintain
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