Arthur Sinodinos (NSW, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Hansard source

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 extends the antidiscrimination protection in Commonwealth law on the grounds of sexual orientation, gender identity and intersex status. It follows the government's abandonment of its Human Rights and Anti-Discrimination Bill on 20 March. Its principal effect is to adopt the recommendation of coalition senators, in the minority report of the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the bill, that the Sex Discrimination Act should be amended so that it extends to discrimination on the basis of sexuality, which was a policy that, I think my colleague Senator Back and others have said, the coalition took to the 2010 election, and that remains coalition policy. These so-called shellbacks in the opposition led by an opposition leader who is meant to be a throwback to the 1950s had a policy at the 2010 election which to my mind sounds very contemporary. I commend my leader, Tony Abbott, and others—I was not here in 2010—for having the foresight to have adopted this policy at that time. I welcome the fact that the bill is coming forward on the basis of removing the sexual discrimination that we talk about here.

Sexual orientation is defined in the bill as:

… a person’s sexual orientation towards:

(a) persons of the same sex; or

(b) persons of a different sex; or

(c) persons of the same sex and persons of a different sex.

The use of 'different' rather than 'opposite' reflects recognition in the bill for those whose sex is categorised as intersex or by reference to their gender identity. Without going into the discussions in the party room today, I make the point that Mr Warren Entsch made an eloquent plea in relation to the situation of intersex people. He drew attention to an, I think, eight-year-old who faced these dilemmas. It is not very easy for us to put ourselves in the shoes of a person who finds themselves in that sort of situation, but one of the obligations of a parliament, of us as representatives of the people, is to try to understand the challenges and dilemmas faced by people in those situations. I welcome the fact that we are able to talk about these issues in this open way and find a way forward on the discrimination we are talking about.

Gender identity is defined in the bill as:

… the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

Intersex status is defined in the bill as:

… the status of having physical, hormonal or genetic features that are:

(a) neither wholly female nor wholly male; or

(b) a combination of female and male; or

(c) neither female nor male.

As my colleagues have mentioned, the prohibition on discrimination on the new grounds extends to areas of work, education, goods, services and facilities, accommodation, land, clubs and the administration of Commonwealth laws and programs. So far so good. However, the issue that has arisen and that my colleagues have raised—I will not take up too much time on this—is that the bill as originally presented to the parliament did not include the proposal from the Human Rights and Anti-Discrimination Bill to qualify the general religious exemption in the provision of Commonwealth funded aged-care services. The government stated that its intention with respect to this bill was to introduce the relevant protections as a 'first stage of reforms' but to otherwise maintain the existing overall structure of the Sex Discrimination Act, including the exemptions. However, the government has now introduced an amendment that reverses that stance. The amendment will restrict the existing exemption from antidiscrimination law for religious organisations which provide Commonwealth funded aged-care services or accommodation. The government has introduced the amendment in a manner that has not permitted proper consultation to occur and it has brought the amendment on for debate as a matter of urgency, which is inexplicable.

Maybe the government has done that because it believes the amendment is not controversial, because it believes the amendment has been welcomed by the majority of religious aged-care providers. However, a perusal of the actual submissions provided by religious organisations to the inquiries into the failed Human Rights and Anti-Discrimination Bill and this bill indicates that that is misleading and that the position of religious aged-care providers is not nearly as uniformly supportive as is claimed. For example, while some organisations, such as the Uniting Church, do support the removal of the exemption, other large religious institutions have stated that making the link between government funding and the implementation of the provisions is 'a false way of resolving a conflict between what are competing and legitimate human rights and that the proposal should not be implemented without extensive consultations'.

They argue that, while it is not policy to discriminate in any event—and that is an important caveat—religious organisations should be given the opportunity to justify their positions or otherwise in light of the fundamental freedom of religion and association. Here we get to the nub of it—and the difficulty. The difficulty is that we are talking about competing 'freedoms', about what is the hierarchy, if you like, of freedoms. Legitimately, that is the subject on which reasonable people can have differing views. But I do, along with many of my colleagues, put a particular store by this fundamental freedom of religion and association, and I do so for a couple of reasons. The first is that I do respect the role of religion in our society. Not everybody has to be religious; people can be religious in different ways. I also respect the role that the churches have played in our society. While a church is an institution full of fallible human beings, the fallibility of those particular people should not necessarily be seen to cast aspersions on the nature, role and mission of religious institutions, including churches.

As I said in my maiden speech, I believe that, on balance and overwhelmingly, churches and religious institutions have played a very positive role in Australia's social, cultural and, indeed, spiritual journey. It is very important that we recognise that, on balance, the very positive that they have played. They are integral to that part of the community that we like to call civil society and non-government organisations. It is important that, as a vigorous democracy, an important component of it is to have strong, sturdy, independent participants and actors in the civil society and non-government organisations.

We talk about the importance in our society of democracy, freedom of the press and all the rest of it. I think that freedom of civil society, of non-government organisations, is also very important. Yes, you could make an argument that, if we as a state, as the font of all taxing authority, provide money as a state, we should determine the conditions on which it is provided and that that provision should reflect a set of values. That is a reasonable argument which reasonable people can put up, but we have to respect the people with whom we are engaging and the fact that, for them, the institution which they are part of, whether it is a faith based institution or some other private institution, is actually an institution where people are brought together by a certain set of values and beliefs and are guided—and this is the more important point in many ways—by their conscience.

We saw how in totalitarian and authoritarian societies that one of the ways in which the state sought to extend its domain was by snuffing out and suppressing civil society, non-government organisations and, in many cases, of course, the churches, which were seen as independent organisations. In the Australian context, we are not talking about a situation where civil society is about to be suppressed or anything like that, but—and this is the thin end of the wedge in a way—we should respect the right of people to have certain views and we should not necessarily expect, as a state, to impose one particular view on them. You could say, 'But this is about discrimination and we should all be against discrimination.' That is true, but what we are talking about here is the possibility that, by embracing the principle in this particular context, we give grounds on which the principle can be extended to other contexts—in other words, the thin end of the wedge. These are some of the reasons why we in the coalition have reservations and concerns about what the government seeks to do through these amendments.

The position I have talked about here, or a close variant of it, is also argued by the Australian Catholic Bishops Conference, the Salvation Army, Catholic Health Australia, the Presbyterian Church and smaller denominations. The providers all indicated that their policy is not to discriminate in practice and that, in these circumstances, the need for regulation is not demonstrated. They all complained that consultation has been extremely limited. In these circumstances, the removal of so fundamental a principle as the religious exemption cannot be supported and will be opposed. We will be opposing the government's amendments.

On the way through, I want to commend the comments earlier this evening of Senator Brandis. My reason for doing so is that, earlier in the day, we had an incident where there was a bit of slagging of the good senator. I will not go into that; it is part of the argy-bargy of the House. But, to me, it was a reminder that Senator Brandis has made a contribution since his teens not only to the cause of what I might describe as modern Australian liberalism but in particular to promoting the freedoms, particularly the freedoms of the individual, that we on this side of the House believe are a core part of what it means to be a modern Australian liberal. I commend the way in which Senator Brandis argued for those views as a student, as a young politician, as a backbencher and now as a senior shadow minister. Whatever slagging and other things happen in this place, I hope people will respect the fact that Senator Brandis is one of the leading proponents promoting individual freedoms. He played an important role in defeating some recent attempts to constrict that freedom—for example, the media bills which would have, among other things, imposed a regulator on the press, particularly the print media, for the first time outside of wartime. Again, this goes to the impulse by the state to try and control institutions and entities which, perhaps we could say, march to the beat of different drum, whether they are civil society, non-government organisations, churches or, in that particular case, the press. So, for us, this is a matter of principle. As Senator Back mentioned earlier, it is such an important matter of principle that it puts at risk our support for the bill.

In closing, may I say that from my own perspective I welcome the fact that we as modern Australian Liberals embrace removing discrimination wherever possible. As someone from a non-English speaking background, I do not believe that I encountered any particular discrimination growing up. But one of the things that has always distinguished Australia has been that capacity to uphold those individual freedoms and to promote, if you like, the fight against discrimination, both within our own country and internationally in various fora. On that basis, it is disappointing that we cannot simply vote for this bill without the particular amendments I mentioned earlier in relation to Commonwealth funded aged-care services.