News & Comment
Burton v Houston
The Tasmanian Supreme Court has delivered a finding that will be one of the most important anti-discrimination judicial decisions in Australia this year.
The case involved a transgender woman, Roz Houston, who suffered harassment on the basis of her transsexuality while she lived in a housing estate in Hobart (for a full transcript of the Supreme Court decision click here).
Roz took a case against her transphobic neighbours to the Tasmanian Anti-discrimination Commission and won. Her neighbours appealed to the Supreme Court and lost.
There are many important and inspiring features to this case.
Roz won her case with very few resources at her disposal. She resourcefully tapped into LGBT legal networks in Hobart and elsewhere, quickly absorbed the legal issues involved and, for part of the case, effectively represented herself, despite on-going harassment at court and at home from the defendants.
The outcome of her bravery, guts, perseverance and application was an important precedent on transgender discrimination and $4000 compensation.
But most important of all Rozís case sets a new global standard in anti-discrimination jurisprudence.
In its initial decision, upheld by the Supreme Court, the Anti-discrimination Commission defined discrimination in accommodation more broadly than ever before.
Traditionally such discrimination has been limited to discrimination by landowners against their tenants. In Rozís case it was found that the Tasmanian Anti-discrimination Act also probihits discrimination and harassment by neighbours, or indeed by anyone who makes it harder for a person to live where they do.
According to Justice Alan Blow,
One would expect that a piece of anti-discrimination legislation concerned with accommodation would be intended to prohibit discriminatory behaviour by landlords against tenants or prospective tenants on grounds such as race, sexual orientation, and family responsibilitiesÖ.But if the Tribunal's interpretation of s22(1) is correct, Pt5 of the Act applies not just to persons in positions of power, but to anyone who has any contact with someone who is engaged in or undertaking an activity that has some degree of connection with one of the matters listed in s22(1).
At first glance, it might seem that such a wide interpretation of s22(1) would produce absurd results that Parliament could not have intended. However it is clear that Parliament has limited the scope of Pt5 to certain areas of activity by reference to victims, rather than to offenders. If Pt5 had been intended to apply only to offenders engaged in certain classes of activities, s22(1) could have been worded differently. Because it has been worded by reference to the activities of victims, I think its purpose was the protection of victims, regardless of the role or status of offenders.
With these few words the types of discrimination and harassment which come within the scope of the Tasmanian Anti-discrimination Act has increased substantially, and a new global standard has been set.
Roz Houston deserves much more than $4000 for successfully defending her basic human rights.
She deserves the respect and gratitude of all Australians who hold human rights dear.
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