Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Hansard source

I participated last year in the inquiry by the Legal and Constitutional Affairs Committee into the draft human rights anti-discrimination package, and I was also a member of the committee for the purposes of the inquiry into this bill, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill—although the inquiry did not lead to a hearing by the committee but rather to a report on the papers. In those circumstances it is a matter of some concern that this legislation was referred to the committee in the wake of the collapse of the earlier human rights legislation package. The government decided not to proceed with the package. It salvaged one part of it—the provisions dealing with lesbian, gay, transgender and intersex people—and brought it forward in this bill.

In the course of doing that, and following an inquiry in which there was no public hearing, the government has introduced a new element into the legislation—an element which not only was not foreshadowed when the legislation was first introduced; it was quite strongly suggested that it would not be present in the bill. The government stated that its intention was to introduce the relevant protections as a first stage of reforms but to otherwise maintain the existing structure of the Sex Discrimination Act including the exemptions. The bill before us today maintains the exemptions but the amendment which the government has tabled removes at least one of those key exemptions. An area of consensus, in a debate last year in respect of human rights and anti-discrimination legislation that generally lacked some measure of consensus, is no longer an area about which we enjoy consensus. It is a matter of real regret that in dealing with this legislation we cannot go forward to address an area of obvious need to correct a gap, a lacuna, in the laws of Australia because the government has decided to change direction on this and introduce an element about which there is not a consensus. I emphasise that point.

On the question of providing for protection under Australian law for people of lesbian, gay, transgender or intersex status there was a consensus that the law was deficient and that the amendments should be made. That consensus, however, was based on the government protecting and preserving the existing exemptions for a range of activities across the community, in this case particularly the exemptions for religious organisations providing services to the Australian public. In one key respect the balance has been lost as the government has decided to step away from its earlier commitments and proceed to remove what I think is an important protection in the existing Sex Discrimination Act where there is not consensus among the parties affected by it. If all of the religious organisations concerned had come to either the earlier inquiry or the inquiry most recently conducted into this bill and said, 'We are happy to have the exemptions taken away; we do not need them; they are not important, remove them,' then I am sure coalition senators would be rising to support the bill, and there would not be a need for this division across the chamber.

But not all the witnesses gave evidence to that effect. A number of organisations made it very clear that, although they did not operate facilities and services in the aged-care sector which practise discrimination, they believed it was important to maintain the exemption for cases where particular instances might not clearly be explained or evident from the state of the law. Those organisations argued that while it was not policy to discriminate in any event, religious organisations should be given the opportunity to justify their position or otherwise in light of the fundamental freedoms of religion and association. That was essentially the position put by bodies like the Australian Catholic Bishops Conference, the Salvation Army, Catholic Health Australia, the Presbyterian Church of Australia, the Catholic Women's League, an organisation called Freedom 4 Faith and a number of the smaller denominations. We are proceeding to remove protections from those organisations, many of them presently providing, directly or indirectly, aged-care services in the community where there is a lack of consensus on the appropriateness of the step which the Senate will take tonight by accepting this amendment. That is a matter of real regret to me.

Senator Pratt, in her contribution, praised the government's progress towards widening rights and extending the coverage of the human rights legislation across the field. As I have said, in saying that, she rather glossed over the fact that, last year, the government stumbled rather badly with respect to human rights legislation when it proceeded with a piece of legislation—to the extent of sending it to a Senate inquiry—and that legislation was found to have many, many provisions which were very contentious and which were widely opposed across the Australian community. They were measures which particularly appeared to infringe the right to freedom of expression.

That particular provision was ultimately withdrawn from the package and, in the end, when a new Attorney-General came to that office, he took the package entirely off the table. The government's progress down this pathway has not been entirely smooth, as I hope Senator Pratt would acknowledge, but it is clear that, in proceeding with the amendment that has been moved tonight by the government to its own bill, there is a disturbing question of how the government has struck a balance in this process, and that has not yet been answered.

I worry about the basis for this and I worry about the lack of consultation with affected organisations. As I said, we have conducted an inquiry into this without hearing from any witnesses. We are making a major change to the law, arising out of inquiry in which there was only evidence taken from written submissions. Most of them were very brief, because the legislation did not sit on the table for very long. Most of them were two or three pages in length, with a conflict in the views of the organisations providing aged care. Against that background, we have decided to proceed to make this major change. That is a matter of real regret.

It is not a surprise, given the way in which many, many bills have been dealt with in this place in recent days. There have been rushed bills, bills lacking proper processes of consultation behind them and bills that demonstrate a lack of understanding of the areas which are being affected by them. It is not a surprise, therefore, to see the government in this mess. But it is disturbing nonetheless because this does present a significant change to the landscape of discrimination. I think it is a step which we are not taking in the right direction.

Senator Pratt argued that it was important for religious organisations to accept the application of discrimination legislation and the removal of all exemptions relating to lesbian, gay, transgender and intersex people. I have left one category out there; I have forgotten which one it is. Whichever one it is, I apologise to that category of person. The view of Senator Pratt appears to be that those exemptions should be removed on the basis that those services are subsidised by the Commonwealth. Public funding—taxpayers' dollars—is in those services and therefore they should accept that discrimination on religious grounds is not permissible.

Senator Pratt would need to acknowledge that many of the services offered in the community—indeed, the overwhelming majority of services offered in the community today—by religious organisations are subsidised by the taxpayer, whether it is at the federal level or the state and territory level. Schools are virtually all subsidised by the taxpayer; hospitals run by religious organisations are subsidised, as are aged care services and employment services, which Senator Pratt referred to. They are all subsidised. So presumably Senator Pratt would argue for the exemptions that currently apply to religious organisations to be removed altogether. Indeed, she did go on to say: 'We need to tighten up on religious exemptions.' Perhaps that is the view of Senator Pratt. I would hope that is not the view of the government as a whole, because religious organisations, it has been accepted for a long time, have an important place in the provision of services across the community. In doing so, they are deserving of support from the taxpayer, because they provide extremely important services that would otherwise be more costly to offer if they were not supported by those organisations.

Without the right to operate those services—taking into account the religious sensibilities of those who provide them—there would be a serious problem in those organisations participating in those sectors. We would be much the poorer as a community if they were excluded from that sector by virtue of the total application of discrimination laws, which would prevent any application of religious principles in those organisations. Worse still, perhaps they would become the preserve of the richer Australians and poorer Australians would be excluded from the use of those services. That would also be a very unfortunate development. The amendment the government is moving tonight does, very regrettably, take us in a direction which is unfortunate.

I thought the witnesses who argued against this were quite cogent—that is, those who put submissions to this inquiry; there were no live witnesses, as I said. One submission, from the Catholic Women's League Australia, quoted Catholic Health Australia. I will read from that submission, which was quoting Catholic Health Australia. It said:

Catholic hospitals and aged care services today care for any person of any faith or none, race, gender, or sexual orientation who seeks services to be provided to them in a way that is consistent with Catholic teaching. Catholic hospitals and aged care services in this regard do not discriminate against anyone, and do not need protection of blanket exceptions from discrimination laws. That said, Catholic hospitals and aged care services do not provide services that are inconsistent with Catholic teaching. To not provide a service on grounds of Catholic teaching is not to discriminate, rather it is a simple limiting of services that Catholic organisations chose to offer as fulfilment of their religious belief.

I think that they make a very important point. It is not discrimination to provide services on the basis of the tenets of a faith, if the faith requires that things be done in a certain way. Overall, Australia is not diminished if those organisations continue to provide the services on that basis, even if it sometimes means that certain things happen within those institutions that might not happen in other sorts of institutions that are not so based. Catholic Health Australia did not make a submission directly to this inquiry, so I assume that the Catholic Women's League has captured the spirit of what they think about this legislation. I do not pretend to be quoting directly the view of Catholic Health Australia, because their view in respect of this bill is not on the record.

I commend the bill very warmly to the Senate. I think it is an important development and that people in our community deserve the protections that the bill affords. But I do not think that in doing so we should sweep away important balance which has been achieved in our Sex Discrimination Act and in related pieces of legislation. The amendment which the government is moving tonight unfortunately achieves just that effect.