George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

The opposition supports the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. The purpose of this bill is to include within the Sex Discrimination Act as a protected attribute 'sexuality'. The opposition supports this bill most particularly because it represents the adoption by the government of coalition policy.

When the Senate Legal and Constitutional Affairs Legislation Committee reviewed the government's ill-fated and bizarrely entitled Human Rights and Anti-discrimination Act—that is, the act would have prohibited controversy in Australia and therefore prohibited or imposed very, very significant limitations on our traditional rights and freedoms—the opposition Senate members of that committee nevertheless saw the opportunity to salvage from the wreckage of that ill-thought through proposal a beneficial piece of law reform.

In the minority report of the opposition senators—and here I refer to page 109 of that report—identified what we described as an area for reform. If I may read what the opposition senators said:

… Coalition senators were impressed with one part of the evidence before the inquiry … from the GLBTI community, who pointed out that none of the Commonwealth Acts which deal with anti-discrimination law extend to sexuality-based discrimination. This is, in our view, an obvious gap, which should be addressed. People in that category are no doubt vulnerable to unfair discrimination. Discrimination against members of that community is unacceptable by modern community standards, and is reflected in the removal in 2008–on a bipartisan basis–of all discriminatory treatment from Commonwealth legislation. It is also consistent with the policy which the Coalition took to the 2010 election. A simple amendment to the Sex Discrimination Act, which includes sexuality (or, for completeness, identity as a gay, lesbian, bisexual, transgender or intersex person) as a protected attribute, would overcome that lacuna.

Therefore, recommendation 2 of the report states:

Coalition Senators recommend that Part II of the Sex Discrimination Act 1984 be amended to include identity as a gay, lesbian, bisexual, transgender or intersex person as a protected attribute to which the Act extends.

When Ms Roxon ceased to be the Attorney-General and Mr Mark Dreyfus became the Attorney-General, he had the wisdom to abandon the ill-conceived Human Rights and Anti-Discrimination Bill. On the day on which he announced that the government was yielding to the force of public opinion by abandoning that bill, he announced that the government—he did not have the good grace, I might say, to concede this—would legislate to extend the terms of the Sex Discrimination Act to protect people from sexuality based discrimination. In other words, he would adopt the opposition senators' recommendation—that is, as I said, a policy which the coalition took to the 2010 election and has in fact been coalition policy for several years. I am always one to extend credit where it is due, and I am glad to see that the government—which has, I acknowledge, moved in this area, particularly in the 2008 amendments which the opposition then supported—has on this occasion come to the party to support a proposal which the opposition recommended.

If the story stopped there, it would be simple. We could have had, in this closing fortnight of the parliament, on a bipartisan basis, supported I daresay by all parties represented in the Australian parliament, an acknowledgment that discrimination against people on the ground of sexuality is wrong and they ought to be protected from it, just as people are protected from discrimination on the ground of their gender or of their age or of their disability or of their ethnicity or on any of the other grounds which the law legitimately recognises ought to be within the reach of anti-discrimination law.

Unfortunately, I fear that that happy consensus will not be achieved this fortnight because of a decision by the government late in the piece to destroy that consensus. Unfortunately, the government have now decided, contrary to the position which they adopted in the House of Representatives, to move a series of amendments to their own bill, which take it much further than the bipartisan position of extending the reach of the Sex Discrimination Act to sexuality based discrimination. Those foreshadowed amendments would extend the reach of this bill to aged-care facilities irrespective of the religious character of those facilities and the tenets of the religious faith of those who operate those facilities, and that the opposition cannot support, for reasons which I will explain. So the opposition’s position is to support the bill—the bill as presented by the government, the bill that we supported in the House of Representatives in its then form—in its current form, to oppose the foreshadowed amendments and, if the amendments were to succeed, to oppose the amended bill.

There are some who speak in very loose and clumsy terms about anti-discrimination law, as if, by passing an act of parliament, one could immediately remove all unfair treatment that vulnerable minorities suffer. But it is not so. Anti-discrimination law does not exist in a moral absolute. The right of people to fair treatment, a precious value, must take its place alongside other precious values, and one of those precious values is freedom of religion. The coalition has always insisted upon—and we had understood the Labor Party had always insisted upon—the exemption of religious organisations from the reach of anti-discrimination law. And we do that because, in balancing those competing and sometimes inconsistent values, we say that the right of freedom of religious practice and the right of freedom of religious worship must always be respected. And if we are to respect it, then the right of religions which conduct social institutions, whether they be schools or churches or aged-care facilities or hospitals, to conduct those institutions in accordance with the tenets of their faith should always be respected. That is a very fundamental value.

You cannot have freedom of religion if you also have legislation which requires, which imposes by statutory obligation, an obligation upon a church or religious institution to conduct its affairs at variance with the tenets of its teachings. If we were to accept that proposition then we would have a position in which the state tells a church or adherents to a religious faith what they may or may not believe, and that is wrong, just as I have always been of the view that it is wrong for the state to, for example, say to a Muslim woman, 'You may not wear a particular garment which other citizens find confronting, although to do so is a respectful expression of your religious faith or religious practice.' I have always been of the view that the state should not have the power to do that. Equally the state should not have the power to say to a particular church or religious institution which conducts an institution like a hospital, a school or an aged-care home: 'You must conduct that institution in accordance not with the tenets of your faith but in accordance with the dictates of the state.' The Australian Labor Party has always said it believes that.

The religious exemption to the antidiscrimination laws has always been, at least among the Labor Party and the coalition—although not, I should acknowledge, the Greens—also a matter of bipartisan agreement. The Labor Party resolves this philosophical dilemma as to how to balance religious freedom and the right to equal opportunity in the same way as the coalition has done. But on this occasion, for reasons yet to be explained, in foreshadowed amendments to this bill the Labor Party now says, 'We are going to abandon our commitment to the religious exemption by applying the prescriptions of this bill to aged-care homes, including those conducted by religious institutions, by churches.' As I say, if that amendment were to be passed, we would be in the sad position of being opposed to the bill in its amended form.

It was represented by the Attorney-General, Mr Dreyfus, that the amendment that is foreshadowed by the government is not a problem for the churches. It is said by the government, incorrectly, that in submissions to the Senate Legal and Constitutional Affairs Legislation Committee's review of the draft Human Rights and Anti-Discrimination Bill, which is the genesis of the current bill, a number of the churches which conduct aged-care facilities said that they did not have a problem with having their aged-care facilities subject to the terms of the Sex Discrimination Act as they would be if amended by this bill. The Australian Catholic Bishops Conference, the Salvation Army, Catholic Health Australia, the Presbyterian Church of Australia and a number of smaller religious denominations, both Christian and non-Christian, which provide aged-care services all indicated in submissions to the Senate Legal and Constitutional Affairs Legislation Committee that such an amendment would be problematic for them because it might intrude upon their capacity to conduct and govern their institutions in accordance with the precepts of their respective faiths.

We are therefore left with a very sad reality. I am sorry to say I cannot help but be cynical about the government's motives here. When the government decided to introduce this bill, they knew that they had bipartisanship on it. Mr Dreyfus, when he announced the government's intention to legislate in this manner, on 20 March this year, knew that what he was proposing was what the opposition senators, in their minority report on the Human Rights and Anti-Discrimination Bill exposure draft, had recommended. I had, as the shadow Attorney-General, with responsibility for discrimination law, made it clear time beyond number, both in this chamber and in public speeches, that the opposition was committed to the principle of extending the Sex Discrimination Act to cover sexuality. If the bill in the form in which the government chose to introduce it had been allowed to proceed in that form, this terrible, fractious, divided, angry parliament could at least, in its last fortnight, have had something to be proud of: a bipartisan consensus—indeed, if we include our colleagues the Greens, a multipartisan consensus—that discrimination against people on the basis of their sexuality should be against the law.

Why would a government acting in good faith and knowing those facts to be true then move to amend the bill at the last minute, after it has already been through the House of Representatives, with the opposition's support, to include a provision which is at variance with its own traditional position concerning the religious exemption and which it knows the opposition cannot and will not support, because, unlike the Labor Party, we have not abandoned our commitment to the religious exemption? We have not recalibrated the ethical consensus in the way in which Mr Dreyfus and his colleagues feel that they are able to recalibrate the ethical consensus. What a shame, from a government which has sought in its desperate dying days, in its death throes, to throw up any issue that might create division rather than harmony, to create division rather than unity. What a shame for the gay community that the government, through a deliberate and cynical act, has vacated its initial commitment to this principle and sought to make it impossible for there to be the appropriate cross-partisan consensus that there ought to be on the principle of prohibiting sexuality based discrimination.

That is where it lies. I urge the government to reconsider this divisive, fractious, cynical manoeuvre on which it is engaged. I urge the government, for once in its life, to show some good faith. I urge the government to abandon these amendments which would violate its own commitment to the religious exemption and make it impossible for the opposition to support this bill—because we do not abandon our commitment to the religious exemption. Present the bill to the Senate for a vote in its original form, the form in which it was presented to the House of Representatives, and let us all be united in support of the principle, shorn of any complications, that discrimination against people on the ground of their sexuality should be within the reach of the Sex Discrimination Act and should be prohibited by law.