Civil Liberties Australia is pleased to note that the Sex Party ranked first for responsiveness, and first for being most closely allied to aims for a society which enjoys freedoms and liberties, with responsibility.
CLA asked 10 questions of parties standing for election in 2010. Click here to see the questions and, in order received, the answers from The Sex Party, the Greens, the Coalition and the Australian Democrats and the Australian Labor Party.
*To enact state and federal anti-discrimination laws making it unlawful to unfairly discriminate against people on the basis of profession, trade, occupation or calling
*To recognise that people working in the adult industry experience systematic discrimination in areas of advertising, health, work regulations, restrictions on movement, relations with police, seeking other employment, housing and accommodation, and goods and services
*To bring Australia in line with international human rights standards on the right to work, free choice of employment and non-discrimination
*To eliminate the stigma, harm, vilification and discrimination towards people working in the adult industry and provide a legislative framework that protects civil, industrial and human rights for all
The Australian Sex Party advocates the implementation of state and federal anti discrimination laws making it unlawful to unfairly discriminate against people on the basis of profession, trade, occupation or calling. The Australian Sex Party recognises that myriad people face discrimination, harassment, vilification and stigma because of their choice of occupation. Currently, the Australian Capital Territory is the only state which protects people from discrimination on this basis through s7(1)(m) of its Discrimination Act 1991. The Sex Party recommends that all states and territories amend existing anti-discrimination legislation to include ‘profession, trade, occupation or calling’ as a ground of unlawful discrimination in order to rectify ad hoc protections across state jurisdictions, in addition to calling for more comprehensive and inclusive federal legislation.
The Sex Party is concerned that people working in the adult industry specifically continue to experience systematic discrimination in areas of advertising, restrictions on movement, relations with police, health restrictions, working regulations, seeking other employment, education, entry into clubs and hotels, goods and services, housing and accommodation (1). This discrimination may prevent sex workers access to health services, mean an absence of workplace conditions and benefits (superannuation, work cover or leave entitlements), prevent sex workers from accessing small business opportunities, mean limited legal remedies to address unfair work practices due to public retribution, include police violence and corruption, deny sex workers custody of their children and ensue difficulty in gaining council approval of premises. It can also provide difficulties in obtaining rent agreements, income protection, credit card facilities and loans, mean higher insurance premiums, limit opportunities to engage in community activities, see sex workers discredited as witnesses in legal proceedings, deny freedom of association and silence sex workers from disclosing their employment when seeking to travel or study (2). Sex workers’ daily and ongoing experiences of discrimination and prejudice signal the crucial and increasingly pertinent need for legislative reform.
There has been a certain unwillingness of the part of the Australian legal system to accept the existence of social, structural or systemic discrimination (3). As Margaret Thornton notes, equality ‘has always co-existed with a norm of inequality and exclusion(4).’ The Australian Sex Party is concerned that anti discrimination laws in Australia remain largely insufficient to protect all human rights or prohibit all types of discrimination. The piecemeal and inconsistent nature of existing legislation as it has emerged over the last few decades has left significant and outstanding gaps, which the Australian Sex Party seeks to remedy and redress. As the Honourable Justice Jane Matthews claims, ‘Australia has not been the vanguard in relation to equal opportunity legislation’, our first attempts falling well behind England, Canada, the United States and New Zealand (5).
In 2009, the United Nations Human Rights Committee stated that it was ‘concerned that the rights to equality and non-discrimination are not comprehensively protected in Australia in federal law’(6). That same year the Australian Human Rights Commission made submissions to the National Human Rights Consultation which recommended that 'Australia's anti-discrimination laws need to be overhauled'. The submissions stated that the failure of federal anti-discrimination laws to protect against discrimination on the basis of occupation 'sends a poor message to the Australian community'(7).
Providing protection from discrimination on the ground of profession, trade, occupation or calling is consistent with a number of international treaties and conventions to which Australia is a signatory. Article 23 of the Universal Declaration of Human Rights provides that everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Australia is obliged under Article 11 of the Convention to Eliminate All Forms of Discrimination against Women to take all appropriate measures to eliminate discrimination against women in the field of employment, and provide free choice of profession and employment. The International Labour Organisation’s Employment Policy Convention 122 provides in Article 1 that there is freedom of choice of employment and the fullest opportunity for workers to use their skills in jobs for which they are well suited. Enabling people to lodge a complaint and seek a civil remedy in response to discrimination would empower marginalised or ostracised groups through not only a symbolic but a practical and necessary step towards ensuring substantive equality.
Intent on eliminating stigma, harm, vilification and discrimination towards sex workers, the Sex Party emphasises that people working in the adult industry are often small business people and family members with a range of backgrounds, skills, academic qualifications and interests. They are mothers, fathers, lovers, students, lawyers, doctors and social workers, engaged in a healing, caring, therapeutic profession among safe spaces in which people can connect on a number of inter-personal levels to experiment and enjoy legal, pleasurable activities.
Notably, discrimination on the basis of profession, trade, occupation or calling is not limited to sex workers. It affects a people in a wealth of areas, such as politicians, journalists, police or trade unionists unable to move into other areas because of their previous occupation, or health professionals working with people with HIV who have been denied employment due to prejudice about their HIV status (8). While some people may be partially covered by protections on political opinion and HIV status, sex workers outside the ACT have no such protection under current legislation.
Remembering that all society bears the cost of discrimination, the Sex Party is proud to promote equality, health, wellbeing and respect within a legislative framework that protects civil, industrial and human rights for all.
*To create total equal rights in all areas of the law for gay, lesbian, bisexual, transgender, intersex and queer (GLBTIQ) people
*Eliminating sexual hierarchy in the legal system to recognise a plurality of kinships, intimacies and relationships rather than only those involving monogamy, cohabitation and shared property
*Ensuring equal access to assisted reproductive technologies, adoption and parenting regardless of sexuality, relationship status or gender identity
*Implementing federal anti-discrimination laws to protect people from discrimination on the basis of their sexual orientation and gender identity
*Issuing appropriate documents to sex and gender diverse people including the use of a person’s preferred title and pronouns on all records and the ability to change legal documentation such as birth certificates based on self-identification
*Supporting the granting of asylum on humanitarian grounds to people experiencing persecution on the basis of their sexuality
*Providing nationally consistent Age of Consent laws to ensure that young people of all sexual orientations have access to education on sexual health practices
* Seeking consultation and guidance from the GLBTIQ community on how best to respect and celebrate diversity
Despite many freedoms and liberties we enjoy today as the result of decades of protest, agitation and reform, the Australian Sex Party is concerned that existing legislation and policy in Australia is largely insufficient to protect gay, lesbian, bisexual, transgender, intersex and queer people from discrimination, harassment, homophobia, transphobia and biphobia, persecution and inequality.
Although the Australian Sex Party welcomes the amendments of 58 laws discriminating against same-sex couples and their children in the area of federal financial and work-related entitlements in 2008, we acknowledge that there remain significant gaps in federal and state legislation and policy in a range of areas. Churches, schools and other institutions can still discriminate on the basis of sexuality. Same sex couples continue to be denied equal rights in relation to relationship recognition, adoption, and the age of consent. Gay men are four times more likely to be assaulted than other men and lesbians six times as likely as other women (1). The Australian Sex Party advocates a range of legislative measures coupled with concurrent community campaigns about rights awareness and education. We promote policies that ‘speak up for an inclusive Australia’(2), target the shame, isolation and internalised stigma affecting children, and aim to promote positive messages about sexuality and diversity. Relationship Recognition In 2009 a Galaxy Poll conducted by Australian Marriage Equality found that 60% of Australians support giving same-sex couples the right to marry. Despite strong community support for gay marriage rights in Australia, the Marriage Act 1961 Cth continues to define ‘marriage’ as ‘the union between a man and a woman’, and section 88EA does not recognise couples married in other countries. In November 2009 the Senate Legal and Constitutional Affairs Committee failed to endorse the Marriage Equality Amendment Bill 2009, notwithstanding that the right to marry for same sex couples is now granted in Canada, Spain, the Netherlands, Belgium, Norway, Sweden, South Africa and five US states. In addition, a civil union or registered partnership scheme is available in Finland, the United Kingdom, New Zealand, Denmark, Switzerland and a number of other nations (3). The Australian Sex Party believes that existing marriage legislation in Australia produces a hierarchy of relationship recognition and that marriage legislation should not discriminate on the basis of gender identity or sexual preference. We believe that providing legal protection and recognition of all relationships is needed to bring Australia back on par with current international standards.
In addition, the Australian Sex Party recognises that Australian people experience many different kinds of intimate, interpersonal relationships throughout their lifetimes, such as friendships, sex buddies, tricks, ex-lovers, mentors, support groups as well as long-term partners. The Sex Party is concerned that only one kind of relationship (that which includes monogamy, cohabitation and shared property) is recognised as eligible to confer social and material privileges. We believe that affording economic and institutional benefits only to married or de-facto couples perpetuates a hierarchy of sexualities. The Sex Party advocates that a plurality of different kinds of relationships should be recognised and that benefits and privileges (such as hospital visitation rights, superannuation benefits, cohabitation arrangements and social recognition) should be available to be distributed according to preference by individuals, households and different forms of intimate relations.
Adoption and parenting The Australian Sex Party supports the rights of same sex couples to be legally recognised in their capacities as parents or carers, whether they are biological or non-biological parents, long-term foster carers, step-parents or co-parents, or in arrangements of traditional or gestational surrogacy, local or inter country adoption, or kinship.
In Australia, the law governing who may adopt and be recognised as a parent is largely contained in state and territory legislation and varies accordingly. In January 2010, the NSW government rejected proposed amendments to include same sex couples in the definitions of ‘couple’ and ‘de facto relationship’ in the Adoption Act 2000, despite that adoption by same sex couples is legal in a number of countries including the United Kingdom, Denmark, the Netherlands, Iceland, Andorra, Belgium, Norway, South Africa, Spain and Sweden. The Australian Sex Party is concerned that discrimination in adoption law sends a harmful message about the risk of lesbians and gay men to their children and discourages same sex couples from becoming foster parents. As the NSW Gay and Lesbian Rights Lobby note, it ‘stigmatises and offends the dignity of thousands of lesbian and gay parents, and lesbian and gay men who work with children and young people.’(4)
The Australian Sex Party is further concerned that Australia’s existing adoption legislation denies equal rights to both same sex couples and their children and is in breach of international treaty obligations. The Australian Human Rights Commission found in 2007 that denying a child legal recognition of their parents may interfere with fully realising the child’s human rights under the Convention on the Rights of the Child (CRC) (5). The NSW Gay and Lesbian Rights Lobby note that ‘blanket discrimination’ against same-sex couples in adoption law ‘prevents an objective case-by-case assessment of what is in an individual child’s best interests’ as required by the Convention (6). Article 2(2) of the CRC specifically states that a child should be protected from all forms of discrimination on the basis of the status of the child’s parents, legal guardians or family members. The UN Committee on the Rights of the Child has further articulated that young children in particular need special protection where they are born to socially marginalised families.
Research literature over the last three decades has illustrated that the sexuality of a child’s parents has no connection to a child’s moral and cognitive development, wellbeing or happiness, and such findings are supported by the Australian Psychological Society, Victorian Law Reform Commission, Canadian Department of Justice and the Australian Medical Association (7). Same-sex adoption reform has the support of the NSW Law Reform Commission, Australian Human Rights Commission, Victorian Law Reform Commission and the Tasmanian Law Reform Institute (8). Giving same sex parents the ability to legally formalise existing relationships with their children would also confer benefits such as automatic inheritance rights, child support obligations and financial and emotional stability (9).
The Australian Sex Party is committed to equal access to adoption, fostering, artificial insemination and in vitro fertilisation procedures for all people on the basis of their ability to provide a loving home rather than on the basis of their sexuality and gender identity. In line with the recommendations of the Gay and Lesbian Rights Lobby, the Sex Party recommends removing discrimination against same-sex couples in adoption eligibility, and giving further consideration to legally recognising children living in multi-parent families. We believe these measures would give relinquishing parents a wider range of diverse families to chose from and reflect prevailing international developments.
Human rights and anti-discrimination The Australian Sex Party is concerned that there is currently no comprehensive federal legislation that prohibits discrimination against GLBTIQ people on the basis of sexual orientation. The ad hoc and piecemeal establishment of anti-discrimination laws across states and territories mean that protections are inconsistent across jurisdictions, and there remain broad exemptions that allow discrimination to continue in private schools, religions organisations and employment involving children. Recent studies reveal that 59% of GLBTIQ people experience harassment and/or prejudicial treatment on the basis of their sexual orientation or gender identity in the workplace, including sexual and physical assault, verbal abuse, destruction of property, ridicule, belittling and homophobic jokes (10).
The Australian Sex Party believes that Australia could better protect human rights of GLBTIQ people through a number of steps (11). Constitutional amendments could enshrine human rights obligations such as the right to equality and equal treatment under the law without discrimination on the basis of sexual orientation. The enactment of state and federal human rights acts could protect a number of human rights recognised at international law and require parliament to consider how laws impact on human rights, provide effective remedies when human rights have been violated, and respect human rights when developing policy. Federal anti-discrimination legislation should be enacted to address discrimination on the basis of sexual orientation, and state and territory exemptions should be reviewed to ensure they are nationally consistent, and limited in accordance with the underlying rationale for the existence of the exemption. Any legislative change should be implemented in combination with public education programs that discuss homophobia, prejudice, and human rights. Such an approach is long overdue to ensure that all people receive equal protection under the law.
Sex and gender diversity The Australian Sex Party believes all people have a right to choose their gender identity and choose when to disclose it. We are concerned that non-consensual normalisation treatments such as forced gender assignment for intersex people continue to exclude and marginalise genders that fall outside the narrow male-female binary currently codified in the legal system. Instead of pathologising bodies and gender identities, the Australian Sex Party supports legislative measures that recognise a range of genders including intersex, MTF trans, FTM trans, genderqueer or genderless, and promote socio-cultural attitudes of acceptance, visibility and celebration. We recognise that intersex is not a medical condition and that all humans are born with diverse and varying hormones, anatomy, organs and chromosomes. We support people born intersex making their own informed decisions as to if and when they wish to undertake gender assignment. We promote a human rights approach that provides protections against discrimination, and which ensures that community education about sex and gender diversity is provided to medical personnel, psychological experts, sexologists, sociologists, employers, educational institutions, carers and government departments.
In their comprehensive report, The Sex Files: Sex and Gender Diversity in Documents and Government Records, the Australian Human Rights Commission advocates a number of recommendations ‘to create a fairer and less complicated identification system that recognises sex and gender diversity.’(12) The Australian Sex Party advocates the implementation of those recommendations to advance human rights protections for all sex and gender diverse people, including access to relationship recognition, implementing policies that include the use of a person’s preferred title and pronouns on all records, and the ability to change legal documentation such as birth certificates based on self-identification. We believe that issuing appropriate documents to sex and gender diverse people and changing terminology to be more inclusive, is an important step towards gender equality.(13)
Persecution The Australian Sex Party recognises that worldwide people continue to suffer persecution in their own countries on the basis on their sexuality or gender identity, and supports their granting of political asylum on humanitarian grounds. We support the development of further training programs for the Refugee Review Tribunal in developing policies and procedures to improve the determination of sexuality related claims, to develop Tribunal Members’ understandings of sexual diversity, attune Members to the impact of actual or perceived homophobia in the determination process, and in using human rights jurisprudence as a tool to improve consistency in decision-making. (14)
Age of Consent The Australian Sex Party is concerned that, while most states and all territories in Australia have an equal and consistent age for homosexual and heterosexual sex (16 years), in Queensland, s215 Criminal Code 1899 continues to make anal sex unlawful until the age of 18, with a maximum penalty of 14 years. The Australian Sex Party believes that discriminatory age of consent laws overwhelmingly affects young gay men and are inconsistent with the objectives of Queensland’s Anti Discrimination Act 1991. Defining anal sex under 18 years of age as a criminal activity has no health, welfare or policy benefit, prohibits 16 and 17 year old gay boys from developing positive friendships, relationships and networks (15) and undermines educational efforts to address young people’s sexual health practices (16). The Australian Sex Party supports nationally consistent age of consent laws.
Respecting and celebrating diversity The Sex Party believes that all people have the human right to choose their sexuality and identity, and is proud to celebrate a diverse community. We offer hopeful visions towards a world where individuals and couples can enjoy equal access to health, legal and education systems, relationship recognition and adoption and other environments without discrimination, vilification, harassment, disadvantage, exploitation, stigma or isolation. The Sex Party believes in making legislative amendments in combination with greater GLBTIQ community consultation on policies that affect GLBTIQ people, provision of counselling, peer support, coming out, suicide prevention and housing and community services for young GLBTIQ people, as well as a national sex education curriculum that provides information comprehensive and street-wise information for youth on sexual variance, gender identity, diversity, gender based harm, cross cultural conceptions of gender, new technologies, negotiating sex and safer sex.
A UNIFORM SYSTEM The current classification system for adult materials is riddled with inconsistencies across a number of jurisdictions and a range of mediums. The irregularity in state, territory and federal censorship laws around adult and sexual material presupposes that Australians living in different areas of the continent have different moralities. For example, the sale of X rated films is prohibited in all states except the Australian Capital Territory and prescribed areas of the Northern Territory. In Tasmania the penalty for selling a classified X film is the same as for making child pornography, suggesting that non-violent erotic films are as damaging and have the same potential to offend as child sexual assault. The Northern Territory does not differentiate between making an X rated non-violent erotic film and other films that would be Refused Classification. In most states it is legal to produce and sell a Category 2 magazine which explicitly depicts people having sex, but if a person films pages of that magazine it is seen as an X rated film and banned. Computer games above an MA rating are illegal and refused classification.
The Australian Sex Party advocates the establishment of a national classification scheme that includes uniform ratings for explicit adult material across all jurisdictions and through all media (including computer games, magazines and films). Such a system would be consistent with a number of other countries including New Zealand, Canada, South Africa and the United Kingdom.
LEGALISING X Research reveals that 25% of Australians (four million) are regular watchers of X rated films(1). 76% of Australian adults support the legal and restricted availability of explicit non violent films(2). Only 30% of Australian adults claim to be offended by explicit erotic films(3) yet this is not reflected in our classification laws. X rated films are legal in the UK, New Zealand, South Africa, Canada, all of Europe, Japan, all of South America and the United States of America. Despite being legal to import and possess since 1983, it remains illegal to sell X rated films in all states except the ACT and prescribed areas of the NT, and adult retail outlets who sell X rated films face penalties of up to 18 months imprisonment and fines of up to $20,000(4). The 640,000 Australians on adult video mailing lists instead order their x rated material from Canberra, where it can be legally sold (5).
The Australian Sex Party advocates that the sale of X rated films be legalised in all states. INCLUDING FETISH Currently, Australia’s X category is far narrower in its parameters than equivalent ratings in other parts of the world such as Europe and the United States. Significantly, when John Howard imposed this category on the industry in 2000, it expressly excluded ‘fetishes’, which subsequently fall outside any legal category and are refused classification. As such, practices such as ‘body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting’(6) are not allowed to be represented in adult films in Australia.
The Sex Party believes that in the express exclusion of fetish from the X category, political leaders have actively propagated an increasingly narrow window of acceptable sexual acts and cultures. For many in the fetish community, their practices represent relationships of trust, boundaries, freedom, non-violence and open-mindedness, with a strong emphasis on consent and communication. Many fetish clubs have clear rules on respect, touching, photographing and preventing harassment (7).
MAKING AND ENJOYING EROTICA RESPONSIBLY The Australian Sex Party recommends that Australians make and enjoy their erotica responsibly and respectfully. We believe that filming people engaging in legal, consensual, pleasurable activities should be legal in itself, and we advocate the enactment of legislation to make the production of X rated films legal in all states. In some states, is currently legal to take pictures of people engaging in sexual acts, but not take moving footage, a discrepancy we believe dates back to prohibition 1930s Britain, where female performers were allowed to appear nude onstage as long as they were still, but not moving.
TRAINING The Sex Party advocates a training program for all appointees of the Classification Board and Classification Review Board to provide information on the latest developments around sexuality to bring them up to date with a pluralistic range of adult sexualities, subcultures, behaviours and body types. Such training is put forward in response to requirements that women in adult material by law are to be large breasted, with small labias, and unable to ejaculate.
Recently federal government censors directed Customs officials to confiscate depictions of the female orgasm when it was accompanied with ejaculation, while the Classification Board began to classify film featuring female ejaculation as Refused Classification rather than X on the belief that they were depictions of urination, which is banned under X. Assumptions that the one million sites featuring female ejaculation must be instead urination reveals a distinct lack of intellectual rigour and understanding of female sexuality on the part of Australia’s censorship authorities and takes us back into the Victorian era where it wasn’t believed that women could have orgasms.
In addition, the classification board has also started to ban depictions of small-breasted women in adult publications and films because they are assumed to appear under 18. Because X does not allow any people who ‘look like they are under 18 years’, prejudiced ideas about body type means that publications depicting flat-chested or small breasted women (normalising them for their audiences) may be refused classification. Furthermore, the requirement that M15+ magazines feature nudes with only discreet genital detail has had the impact that magazine editors frequently airbrush women’s labia minora so they may comply, being ‘healed to a single crease’ (9).
The Sex Party advocates training for the Boards to ensure that realistic depictions of a great diversity of bodies can be portrayed and celebrated in adult publications, and subsequently rid of shame, stigma and stereotype based on one brand of body.
1. La Trobe University survey 2002
2. AC Nielson Poll 2006
3. AC Nielson September 2006
4. Eros Parliamentry information guide, Censorship, Public Opinion and Adult Retailing in Australia, 2008, p15-16 details relevant acts in each state