Sex, guns and human rights

Australia is not immune from criticism on this issue. Both Australia (until 1992) and the UK (until 2000) have had bans on homosexual people serving in their forces. But our forces, and our societies more generally, have moved on from those darker days. Looking back we realise how medieval and cruel our attitudes were.

The idea of the "fair go" is now of central importance to Australian Army values. Its soldiers are directed to observe the "Rules for a Fair Go", which are issued to every solider in the form of a wallet size card:

• Be honest, always.
• Respect the differences in others.
• Make the Chain of Command work.
• Use the military justice system.
• Bring honour to your country, the Army, your mates and yourself.
• Respect and use the Army values of: Courage, Initiative, and Teamwork.
• Earn the trust and loyalty of your team. Don't let your mates down.
• Be accountable for you actions and decisions.
• Treat others as you want them to treat you.
• Lead by example.
• Have courage to stand up for what is right and stop unacceptable behaviour.

This message is reinforced to all soldiers and officers at compulsory Equity and Diversity training courses. The progress made by the ADF in the area of Equity and Diversity is impressive, even by civilian standards. Each unit, for example, now has a designated Equity Officer as a first step for complaints management.

When Lt-Gen Cosgrove (then Chief of Army) announced the Fair Go Hotline, for matters not resolved by the chain of command, he said of these values:

"I do not see these matters as being irrelevant or as a side issue to what we in the Army are all about but, rather, I am convinced they make a significant contribution to our operational capability and effectiveness… Unacceptable behaviour, particularly bullying and harassment, adversely impacts on morale, health and individual and unit effectiveness."

But this issue is about more than just our American friends' disregard for the "fair go". This is an institutionalised disregard for fundamental human rights.

The "Don't Ask, Don't Tell" policy breaches a core principle of international law; namely, the non-discrimination principle.

The UN Charter sets out the principle of non-discrimination in articles 7, 55, and 56. The Universal Declaration of Human Rights further builds up the principle, and under articles 2(1) and 26 of the International Covenant on Civil and Political Rights, signatories agree to ensure that all individuals within their jurisdiction are afforded the same basic rights "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Both Australia and the US have ratified the ICCPR.

The importance of international treaties such as the ICCPR, is not that they create directly enforceable rights or obligations in domestic law. Very often they don't, especially if signatories specify special reservations. The authority of such treaties comes from the fact that they represent basic norms of treatment that the international community agrees ought to apply to every human being. In other words, they have moral force.

In the ICCPR, each nation agrees to protect its citizens from discrimination, stating:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."