On same-sex matters, politicians and public servants could not be further apart


COMMENT: Pride and plebiscites are a dangerous combination. The public sector has worked hard to move on from past discrimination by the state. The marriage plebiscite won’t help.

The announcement of a same-sex marriage plebiscite in a few months — postal, voluntary, binding on a ‘no’ result, non-binding if affirmative — is full of contempt for the principles of equality, human rights and the safety of the young and vulnerable.

It is also the will of the elected government and the public service must implement it.

There will be vilification, there will be suicide (LGBTI youth are already five times more likely to attempt suicide) and in an era of growing distrust in government, this one swift decision will undermine the public sector’s efforts to support and engage Australia’s sexuality and gender diverse population.

“It’s not clear who, if anyone, can prevent vilification.”

For the community targeted by unfair hate speech, it will feel like their world is ganging up on them — not just the offenders who spew bile, but their enablers in the state too. The reputation damage will go far beyond the poor Australian Bureau of Statistics, who has been tasked with running the poll instead of the Australian Electoral Commission through a constitutional loophole. It will be felt by service delivery agencies in all tiers of government. Faith-based charities who deliver many of government’s services are already distrusted for their church leaders’ stances.

During a normal plebiscite or election it is the AEC that regulates what can be said in the campaign, where and how. Not so for an ABS-run opinion poll. It’s not clear who, if anyone, can prevent deceptive claims, vilification, hate speech and defamation. The government has already knee-capped the Australian Human Rights Commission’s legitimacy on speech and vilification.

Can state anti-discrimination boards intervene? And if so, would the High Court overrule that intervention to protect ‘freedom of political communication’? Who knows. The 1967 referendum is the closest example of a population group being singled out in this way, but even that offers no clues.

Departments leaped ahead of politicians on rainbow inclusion

Public agencies, at both federal and state level, are treating LGBTI Australians fairer and more inclusively than ever before. Sometimes it is with the blessing of their ministers, but far more often off self-initiated and to the annoyance of ministers. In contrast, there are very few examples of public bodies being dragged into LGBTI inclusion by their government — Australian Defence Force in 1992 being the best known example. The expunging of historic gay sex convictions could have been another, but for the enthusiastic uptake in justice departments once the ball got rolling.

Bureaucrats are used to policy whiplash, where what’s good today can be out of favour tomorrow. The ability to cope and quickly adjust is seen as one of the sector’s highest virtues. Truth to power, as important as it is, isn’t a licence to waste energy advocating for positions the government won’t budge on. As mandarins often exhort in these pages: if you don’t like it, leave.

“An intolerant non-inclusive organisation will drive away the best talent and leave government with an even greater skills and capability shortfall.”

But on the treatment of LGBTI Australians, these axioms appear not to hold. Indeed, the disparity on this issue between a great number of political masters and the public servants who implement their will is getting wider by the day.

Safe Schools was not politician-driven. Many ministers who directly funded the program and approved its use in public schools claimed not to know much at all when News Corp launched a campaign against it. The innovative anti-bullying approach found its way into institutions around the nation because of champions inside the federal and state bureaucracies. There was a deliberate strategy by those officials and the Safe Schools nation advisory team to keep the program low profile because they didn’t trust politicians — particularly then PM Tony Abbott — not to quash it. Ministers have quashed LGBTI-inclusive youth programs before.

Visible employee support for LGBTI public servants was not politician-driven. Diversity initiatives driven by senior sponsors in departments and agencies recognise that an intolerant non-inclusive organisational culture will drive away the best talent and leave government with an even greater skills and capability shortfall in the coming years. Employee LGBTI affinity groups are everywhere in government now. In some large departments they have annual budgets as high as $100,000 to run networking events and invite speakers. They sprang up in the last few years because public service heads risked losing even more talent to the private sector. At least one federal departmental secretary has pushed back their minister who attempted to end all departmental diversity efforts except for the media-friendly targets for women and Indigenous employees.

LGBTI advisory committees, once the province of only adventurous ministers, are these days run by departments as a matter of course, helping let community perspectives influence policymaking from the ground up and ongoing tweaking to service delivery. These public sector leaders saw a good idea, openly stole it and made it their own.

Myth of the ‘fair go’ culture

What has been politician-driven in Australia is bigotry, fear, and conscious exclusions of LGBTI concerns to the benefit of the powerful and privileged, especially the churches. At state level anti-discrimination and anti-vilification laws are riddled with exemptions, but none more so than the flimsy protections against unfair discrimination on the basis of sexual orientation. Federally, Abbott and his fellow government backbenchers have repeatedly dismissed LGBTI equality as “political correctness” and a threat to religious freedom, and allowed committees to extend parliamentary privilege to claims same-sex couples will be responsible for a new stolen generation and other abuses of children.

To any reasonable observer, the former Public Service Minister Eric Abetz loathes gay visibility. He took out the top homophobia prize in this year’s GLORIAs — Gay & Lesbian Outrageous, Ridiculous, and Ignorant Comment Awards — for a bizarre rant about the APS flying the “hostile nation” rainbow flag. Yet it was under Abetz’ ministerial watch that the APS took the greatest leaps forward in giving a fair go to LGBTI employees.

Unless you’ve experienced it first hand it can be easy to forget that the public sector has had its own rampant homophobia — as bad as Abetz. It also has the soft homophobia of exclusion and silence. Note that despite the persistent belief that the public sector is a wonderful place for LGBTI employees, better than the uncertainty of the private sector, the experts disagree. A brief look at the UK civil service suggests Australia lags behind even other public sectors.

It only takes one zealot in a key position like the CIO for things to go backward, as it did a decade ago in the then-NSW Department Education and Training. Access to online support resources for LGBTI youth were blocked with the same filter used to block adult entertainment and gambling sites. A deputy principal at a public school for some of the state’s most vulnerable children told me he had to fight for years to get gay-inclusive resources excluded from the filter. If it was hard for a school leader, imagine a scared student finding the courage to ask.

Defence took 13 years after the ‘gay ban’ was lifted before it would acknowledge that these ADF members had families, partners who were making sacrifices in the national interest without so much as a next-of-kin call in emergencies. For more than a decade, those same-sex families were out of pocket in the order of $10,000 for each posting in order to keep their family together — costs that no straight, unmarried couple had to pay.

Community service agencies have long pushed LGBTI clients to faith-based services because there is little belief in the value of recording that significant detail of their lives in official records. The onus of switching is usually on the client, and can come with penalties they shouldn’t have to suffer because of others’ beliefs.

It wasn’t bureaucrats in charge of discriminatory laws and regulations that pushed for the clean-sweep of most federal discrimination (except marriage) in 2008-09. Prior to the Rudd-era reforms, during John Howard’s government, public servants were given the opportunity to raise examples of same-sex discrimination to Cabinet to be rectified on a case-by-case basis, as was done with the indefensible omission in superannuation provisions. The bureaucrats chose not to, according to one Cabinet official. Instead, progress finally came thanks to the work of one Graeme Innes, then Human Rights Commissioner and his legal research team who did all the leg work so a future government could take the credit.

The public sector has come a long way since those days, at last open to the unnecessary cost of unfair discrimination. But it puts them in a professional bind when their political lords and masters are bucking the community’s seismic shift and unwilling to make the same journey.

Harley Dennett was a member of the ACT Ministerial Advisory Council on LGBTI and news editor of Sydney Star Observer, Australia’s oldest and largest gay and lesbian newspaper. He has also advised public sector LGBTI employee groups.