The proposed Commissioner is a recommendation from the 11-member Eminent Person’s Group (EPG), which was conceived at the Commonwealth Heads of Government Meeting (CHOGM) at Trinidad and Tobago in 2009.
Kirby is an EPG member and former Justice of the High Court of Australia.
The EPG was set up to advise the 2011 CHOGM in Australia on how to improve the Commonwealth’s institutions to make them stronger and more effective, particularly on how to create a “stronger, more resilient and progressive [organisation] founded on enduring values and principles,” according to Kirby.
The proposed catch-all commission for governance and liberties "is meant to address the silence and toothlessness of the Commonwealth for decades on human rights issues," says Civil Liberties Australia (CLA).
CLA report that the Commissioner would hold office for four-to-five years, is likely to be a former judge and report directly to the Commonwealth Ministerial Advisory Group. They understand that the EPG has submitted a concise ‘Values Paper’, which CHOGM will be asked to endorse. They note that the appointment of an openly gay man to the new position is likely to be resisted by many Commonwealth nations.
The Australian Federation of AIDS Organisations says that Kirby will be pushing for discussion of LGBT human rights at the CHOGM meeting in Perth alongside Justice A.P. Shah, former Chief Justice of Delhi, India.
CHOGM will see concerted lobbying with a Statement of Action of Decriminalisation of Same Sex Conduct currently drawing signatures from groups throughout the Commonwealth.
Gay Australian Labor MP Ian Hunter says that he will be lobbying Australian Foreign Minister Kevin Rudd to:
“encourage the Commonwealth to publicly declare its support for LGBTI rights and to take a stand against member states who not only tolerate homophobia, but in some cases actively promote this kind of discrimination and hatred.”
Currently of the 54 Commonwealth nations, more than 40 uphold a total ban on homosexuality and in some countries, including Nigeria, Cameroon and Uganda, homophobic witch-hunts still take place.
Human rights activist Peter Tatchell has also called for the Commonwealth to put homophobia and transphobia on the meeting’s agenda.
In a letter to the UK Foreign Secretary, Tatchell highlights:
“The penalties for homosexuality include 25 years jail in Trinidad and Tobago and 20 years plus flogging in Malaysia. Several Commonwealth countries stipulate life imprisonment: Sierra Leone, Tanzania, Pakistan, Uganda, Bangladesh and Guyana.
“These forty-plus Commonwealth member states account for more than half of the world’s countries that still criminalise same-sex relations,” he said.
“The Commonwealth Secretary General, Kamalesh Sharma, has not spoken out against the recent arrest, jailing and mistreatment of men accused of homosexuality in Cameroon. He should show leadership by publicly pointing out to the Cameroon government that its persecution of LGBT people in incompatible with Commonwealth values.”
Tatchell has been encouraging lobbying of Rudd, requesting him to put LGBT human rights on the CHOGM agenda.
In June Secretary General Sharma responded to prior criticism by Tatchell, saying that because the 2009 ‘Affirmation of Commonwealth Values and Principles’, agreed by all Heads of Government includes the words "…for all without discrimination on any grounds…" this includes discrimination on grounds of sexual orientation.
Sharma claimed that work is going on "behind the scenes."
"This sometimes leads to a perception that we are inactive or silent on certain issues. This could not be further from the truth."
"I have consistently made it clear publicly that we deplore hate crimes of any nature and the vilification and targeting of gay and lesbian people runs counter to the fundamental values of the Commonwealth," Sharma said.
"The Commonwealth operates through encouragement not coercion. Ours is the helping hand not the publicly wagging finger used by others. That is how progress on human rights has been best achieved in the Commonwealth."
A protest march Oct. 28 in Perth will include protests against the lack of LGBT human rights in many Commonwealth nations.
An official Speakers’ Corner which is part of the ‘People’s Space’ during the Festival surrounding the event is calling for "vocal members of the public speaking about colourful, controversial and thought-provoking issues from our community and hot topics from around the Commonwealth" – including gay and lesbian rights.
A new group, the Human Dignity Trust, was announced last week. It is setting out to change the law, in the Commonwealth and beyond, on the basis that, in those countries already signed up to various international agreements, it is a breach of international human rights law to criminalise someone’s sexual identity.
Legal moves challenging criminalization are already underway in Belize and Botswana and are being discussed in Kenya.
CEO Jonathan Cooper told The Guardian that the Trust’s patrons – which include the former attorney general of India; the former secretary general of the Commonwealth; Lord Woolf, former lord chief justice of England and Wales; and a former judge at the Intra-American court of human rights – "are not pursuing this as part of a lesbian and gay agenda. It’s an international rights law agenda."