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					OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

May I begin of course by paying respects to the traditional owners of the land, and to their elders past and present? Thank you to the ALSO Foundation for including the Victorian Equal Opportunity and Human Rights Commission in this important forum. I am proud and delighted to be here at the launch of OUTthere, the first Council of its type in Australia which is formed in a rural area to raise awareness, advocate and provide information to communities about the issues facing same sex attracted young people in rural Victoria. I will talk a little bit more about them in a minute, but I wanted to cover a bit of more general context about discrimination and human rights. “If you have never tasted discrimination, unequal treatment or perceived injustice, you might wonder what the fuss is about. If you control the levels of power, you may think that action is unnecessary, or a low priority …. Popular majorities can look after themselves. Protective laws are commonly needed for minorities, and especially unpopular minorities.”1 In Victoria, we have arguably some of the best laws in the land that protect the interests of our citizens. And as this quotation from Justice Michael Kirby‟s paper on answering some of the criticism about whether or not Australia should have a bill of rights demonstrates, is that even with laws, we still have differences in the way people are treated, we still have discrimination and we still have inequity. What I would like to do in the time that I have allotted is alert you to some possible changes in the future, and to give you a sense of how the Commission is trying to continue to work to achieve basic human rights for all Victorians. Some of the specifics you will hear in other sessions, some of the good news stories at both state and federal level. The crucial thing is how we build on the good news stories, and particularly how we ensure that the fight for basic human rights protections is not sidelined or diminished at a time when economic considerations are so all encompassing. One of the first casualties of war or economic crisis is often rights and the thing that we are most mindful of at the Commission is that times like this where we are faced with uncertainty, where we hear about „GFC‟ or global financial crisis, that the protection of rights should not be forgotten when other measures are being considered. For example, where it was easier to
1

Kirby, J. ‘An Australian charter of rights – answering the critics” in (2008) 31 Australian Bar Review. Pp 149 – 158.

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OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

argue for diversity when there were labour market shortages, we are mindful that the business case for diversity will not have to be made strongly. Where it was possible to argue for lost business where services were not accessible, now we will have to demonstrate that more clearly as businesses face multiple pressures. John F Kennedy said: The Chinese use two brush strokes to write the word 'crisis.' One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger - but recognize the opportunity.2 Where are our opportunities? What do we mean by equality? Recently the Equal Opportunity Act was reviewed by the Government and the Commission in its submissions sought to have the act modernized to change in three fundamental ways – to streamline the complaint handling so that the emphasis was on speedier more accessible resolution, to have powers to identify systemic discrimination which is often entrenched and institutionalised and to have an act that proactively sought to prevent discrimination in order to achieve equality rather than the current emphasis on compliance, often after the discrimination occurs. The first set of legislative changes arising from the review has been finalised, and from 1st October 2009 the Commission will have a new structure, with a single Commissioner who is also the chair of the Board, and up to 6 board members and a non-Board member CEO who will have the delegated responsibility for the day to day operation of the Commission. One of the criticisms that has been levelled at any further legislative change is there is not a need for it and our complaints data does not indicate a significant increase in complaints. What problem are we trying to solve? Our response is that this is the very problem we are trying to solve. In 2007/2008 we received 60 complaints which related to discrimination on the basis of sexual orientation, in the areas of accommodation, clubs, employment, sport and in the provision of goods and services. These are 60 instances where someone felt that they were treated less favourably on the basis of their sexual orientation. From what you know in living your day to
2

John F. Kennedy (1917 - 1963), Speech in Indianapolis, April 12, 1959

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OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

day life, does this seem like an accurate reflections of the extent of discrimination against gay, lesbian, bi sexual, transgender intersex or queer people? I don‟t think so. I suspect that this is only the tip of the iceberg of all sorts of discrimination that is perpetuated against these people on a daily basis. So why is this not reflected in the data? Because to bring a complaint of discrimination of any sort, including sexual orientation, takes a lot of time, courage, energy and resilience. And often, as Michael Kirby/‟s quote at the start of my talk indicates, people who are GLBTIQ are busy dealing with all sorts of inequities without taking on every instance of discrimination. This is why we believe that the equality framework should be proactive. We know from the research that has been done seeking the views of young people that the experience of discrimination is also great. For example, in the ‘Writing themselves in again’3 report many of the young people (38%) interviewed had experienced unfair treatment on the basis of their sexuality despite the fact that such treatment is illegal throughout Australia. The most common sites for this were at work and at school. A further 44% reported verbal abuse and 16% reported physical assault because of their Sexuality. Despite the protections that exist, these figures that are largely unchanged from 1998. “Verbal abuse extended beyond name-calling and insults to include threats and rumour mongering. Physical abuse ranged from having clothes and possessions damaged to rape and hospitalisation for injuries. The most common site for this abuse, as in 1998, was school and this remains the most dangerous place for these young people to be with 74% of all the abuse happening there.”4 We need something other than individual complaints of discrimination to change the system that we operate in, the community that we live in and the places that we work and are educated in. It is our view that all organizations should operate within an equality framework. The Commission has described it thus: Achieving genuine equality means that every person has the chance to achieve their full potential, and full enjoyment of their human

3 4

http://www.latrobe.edu.au/arcshs/assets/downloads/reports/writing_themselves_in_again.pdf http://www.latrobe.edu.au/arcshs/assets/downloads/reports/writing_themselves_in_again.pdf

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OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

rights without discrimination. To achieve this goal the Commission acknowledges that: • Access to opportunities is not equally distributed throughout society. • Applying the same rules to unequal groups often results in unequal outcomes. • We sometimes need to make adjustments and take special measures to enable equitable outcomes.5 We think that equality should be outcome focussed and have looked at the outcome measures that are reported in some of the literature in the UK: • Equal Life Chances (ELC) – addressing discrimination that contributes to and perpetuates the cycle of disadvantage. • Equal Dignity and Worth (EDW) – treating people with dignity and respect and promoting understanding of the value of diversity. • Equal Participation (EP) – ensuring all people have the choice to participate by removing organisational barriers to the Commission both in terms of employment and service delivery and meeting the needs of different groups in a way that emphasises shared values and provides opportunities for sustained interactions. And we believe that the equality outcomes should be viewed in the context of a human rights framework. Victoria – additional human rights protections The other reason that we need to ensure that these equality frameworks are understood is that we do have a Human Rights Charter in Victoria. I find it curious from where I sit at the Victorian Equal Opportunity and Human Rights Commission to see how challenging and disconnected the dialogue is in Australia around human rights. There is still such confusion about human rights discourse and such uncertainty as to how it intersects with existing public policy paradigms. I suppose this disconnect is not surprising when we consider that we are fifty years behind in terms of fully understanding and integrating human rights into our daily considerations, and when we remain the only democracy in the world that does not, at a
5 Equality Framework – VEOHRC – September 2009 – www.humanrightscommission.com.au

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OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

national level, have specific legislated protections of our human rights.6 To use the soon to be retired Justice Michael Kirby‟s words: But we have still not taken the final institutional step of embracing, nationally, an enforceable Australian charter of fundamental human rights.7 As the national consultation about whether or not we should take this final step, whether we should finally catch up with other western democracies and accept the notion of legally enforceable fundamental human rights, is being rolled out, it is important to understand what existing policy paradigms are being used to deal with fairness, equity and social change. In Victoria, we do have the advantage of being two years into the implementation of the cultural change process associated with the adoption of the Charter of Human Rights. This Charter combines a range of rights protections in one domestic law, which relates to freedom, respect, equality and dignity, and which imposes on public authorities a positive duty to comply with the rights contained in the Charter – and to do so in every facet of the work of government. This includes its law making, its policy development, its service delivery and in matters that come before courts and tribunals. We have the opportunity to see how human rights and values interface, and we have some important messages that will hopefully be heard in the context of the national consultation. Larissa Berendt points out quite sensibly those instruments such as the Charter are aimed at ensuring a better balance between the rights of individuals against the state and as such are more often an infringement on the rights of government than the rights of people.8 Think about that! Prevention being better than cure. By requiring public authorities to consider human rights in the course of decision-making, and to act compatibly with human rights, the Charter seeks to embed consideration of
6

Calma, T. „Social Inclusion for New and Emerging Communities” delivered at SA Migrant Resource Centre „Making a Difference‟ conference. Adelaide, June 2008.
7

Kirby, M.
Berendt, L. „Focus on the benefits of a human rights charter‟ in Lawyers Weekly 20 April 2007, p. 18

8

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OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

human rights issues within the public policy process at the point of planning and development. Arguably worth more than mechanisms that activate only after breaches occur or non-compliance is identified. Why does this matter - laws, regulations, local laws, policies, procedures, the way that government works will be part of a cultural change process. This takes time, but the investment in bedding down the considerations into the daily work of government will mean that there is enduring change, not momentary quick fixes. I don‟t know about you, but I think the idea of a „rights‟ filter on all of the work of government is a good way to go. It keeps us all accountable. Is this a Charter for chancers, criminals and celebrities? No, it is for all of us. The fact that the Charter is not a constitutional document means it can be repealed or amended (although the new Legislative Council voting system and the public perception associated with any government “abolishing human rights” surely mitigates this risk). The override provisions reinforce that it is not “paramount law”. But despite this, its day-to-day influence will be pervasive and significant. Substantively, the Charter transforms human rights norms from a sometimes acknowledged set of international principles, into part of the domestic law of Victoria. What this means is that the language used to express the principles that have underpinned so much advocacy in the past can now be fundamentally strengthened. The Charter brings social justice advocacy and human rights into the same consideration. This is important, because advocacy does not have to be made on the basis of equal treatment, it does not need to be on the basis of a „welfare case‟ but it can be on a clear human rights argument, that needs no comparator or paternalism in how our citizens are treated. The dialogue, be it in the context of governmental or Parliamentary inquiries, regulatory reviews, law reform processes etc, is no longer about what is right, or best-practice, it is about what is needed to comply with the law. Furthermore, the dialogue now occurs within a commonly understood framework or terms of reference – i.e. civil and political rights now form an Page 6 of 9

OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

accepted benchmark for assessing and forward planning government conduct. Of course disagreements will continue, however, government and the community can now debate and resolve disagreements through a common reference point and using a shared language. The Charter will only work if people understand how human rights impact on our day to day lives. It will only work if people care about human rights. We know that people care because the research says so. A Swinburne University survey found that human rights enshrined in law was a top priority for Australians.9 The role of the VEOHRC in community engagement, training and raising the profile of the Charter within the Victorian community becomes crucial in this regard, and we welcome enquiries about our public education and training program.10 The Charter is not an outcome, it is an instrument. The Charter provides an armory of formal and informal mechanisms to promote human rights and realize the benefits associated with this. However, it is up to government in all its forms and the community to understand and meaningfully employ these mechanisms, otherwise the Charter will amount to little more than rhetoric. This is the challenge facing all those who are engaged in the Charter‟s implementation. Of course a human rights culture depends on more than the conduct of government. Its emergence or demise is also significantly influenced by how individuals view and relate to each other. Government‟s role is to lead by example. It is incumbent on us all to be aware of the Charter in Victoria, to understand broadly how it works and to use it in our dialogue – irrespective our membership of a specific community. A healthy civil democracy allows governments to make brave decisions – about rights, about the environment and longer-term initiatives. The Charter is an important tool in our armoury.

9

„Human Rights More Important that republic, study shows. Media Release 31/10/99. Mike Salvaris. Swinburne University of Technology. 1999 10 http://www.humanrightscommission.vic.gov.au/human%20rights/Charter%20workshops/

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OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

„‟ …it is not enough that we are better than the worst offenders on a human rights report.”11 In this context the advocacy message can be far more direct – breaching human rights amounts to a breach of Victorian law and a failure to comply with specific legal obligations. Already in Australia, there is evidence of the impact this can have. OUTthere and human rights Which brings me to the „guest of honour‟ at this event – the launch of OUTthere. As I mentioned at the start, OUTthere is a Rural Victorian Younth Council for Sexual Diversity. What impressed me with the history of this group is that it developed from rural young people who live the experience of being rural young people, without wanting to state the obvious. I am advised that the idea for OUTthere started with one young person saying „all of us country groups should work together more – we will be stronger and louder then‟. So this group has done its work – its has developed its vision, done its governance homework, elected an executive and is now going public. Within the work of the Commission we talk a lot about a human rights policy development framework, and this framework outlines a number of processes to deliver human rights compliance outcomes. The process involves: Participation Accountability Non-discrimination Empowerment Linkages to international human rights instruments. If you think about OUTthere, and its growth from the WayOut project, then it meets many of these criteria. Its very name is actively living a human rights methodology as it comes from the views of people directly affected, it builds on those experiences and it aim to empower and educate through linkages with government, community and the education sector. The job they have to do is large.

11

Berendt, L. „Focus on the benefits of a human rights charter‟ in Lawyers Weekly 20 April 2007, p. 18

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OUTthere – Launch of Rural Victorian Youth Council for Sexual Diversity ALSO GLBTIQ Rural Forum – Queer in the country, 26th June 2009 Ballarat, Victoria
Dr Helen Szoke, Chief Conciliator and Chief Executive Officer, Victorian Equal Opportunity and Human Rights Commission

In the words of the research we are reminded of the damaged that is done from discrimination to the individuals who experience it: “Perhaps the most striking finding of this research is the extent to which homophobic abuse had a profound impact on young people‟s health and well-being. Young people who had been abused fared worse on almost every indicator of health and well-being than those who had not. Young people who had been abused felt less safe at school, at home, on social occasions and at sporting events. Those who had been abused were more likely to self-harm, to report an STI and to use a range of legal and illegal drugs. Two main methods of self-harm were reported by 35% of the group – self-mutilation and attempted suicide. On the positive side those who had been abused were more likely to have sought support from an individual or an organization.”12 I look forward to hearing more about the important work that will be done by OUTthere, and the presentations today from the Chair Kathryn Etwell and the Deputy Chair Jacob Quilligan. I can assure you that you have the full support of the Commission in your work and we look forward to hearing of your efforts and supporting your important work in the future. Thank you.

12

http://www.latrobe.edu.au/arcshs/assets/downloads/reports/writing_themselves_in_again.pdf

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