Law needs reform despite trans discrimination victory

BRISBANE: A transgender woman who a neighbour threatened to burn her house down, has been awarded $15,000 in compensation for harassment and vilification after the Queensland Civil and Administration Tribunal (QCAT) found that she had been the victim of transphobic discrimination.

A leading academic expert however has said that the landmark case only highlights how legal change is required in Queensland to strengthen anti-discrimination laws.

The case is the first time that serious gender identity vilification has been established under the state’s Anti-Discrimination Act 1991 (ADAQ Act).

The case was finally decided by QCAT in mid-August after a complaint was lodged with the Anti-Discrimination Commission of Queensland (ADQC) in December 2009 about the incident which occurred on April 9, 2009.

During the incident which happened a few hours after midnight, the complainant was alone at home when her male neighbour and a number of his acquaintances verbally harassed and threatened her from the street before damaging the property’s fence.

QCAT member Dr Bridget Cullen-Mandikos found the actions of the neighbour constituted sexual harassment, vilification and serious vilification as expressed under the ADAQ Act.

“I consider this to be a form of gang-style violence,” Cullen-Mandikos said before recommending criminal charges if she could.

“I find that this would be futile. This is for the reason that a prosecution in relation to an offence under subsection 131A(1) of the ADAQ Act, must be commenced within a year, and therefore any prosecution in this matter would be out of time.”

Dr Alan Berman, a law expert from the University of Newcastle and author of Speaking Out – Stopping Homophobic and Transphobic Abuse in Queensland, told SX that there is a very real need for law reform.

“This is a case in which criminal proceedings should have been brought but could not be brought because they have to be commenced from my understanding under the Justice Act which has a one year statute of limitations.

“This probably explains why there has never been any cases in any jurisdiction throughout Australia in which an individual has been subject to criminal penalties,” Berman said.

“The ADCQ process takes time and requires mediation and then the year has elapsed – indeed in this case I think it is three years – so as Dr Cullen-Mandikos points out, it would be futile to pursue criminal proceedings.”

A simple solution would be to allow the state’s Anti-Discrimination Commissioner to commence criminal proceedings without approval from the Attorney-General or Director of Public Prosecutions, Berman said.