Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Hansard source

I rise to continue my remarks on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. As I was observing last week in this debate, the overall direction of this bill is extraordinarily positive, and the government's conduct in bringing this bill to the parliament following the rejection of their more sweeping changes to anti-discrimination laws is welcome. It was one that had been recommended and endorsed by the coalition when it came to the handling of those anti-discrimination laws. However, the coalition has expressed its concern at the amendment that the government has sought to move in this place which would present and provide for a variation to the general religious exemption provisions provided for in anti-discrimination laws. The coalition is concerned that that is a last-minute change and risks the community consent and support that we would hope each of these incremental improvements in our anti-discrimination laws would usually bring.

From a personal perspective, I have no particular problem with the intent of the amendment. However, I do think it is important, as we progress debate on changes to our anti-discrimination laws, that it is done in the most unifying way possible. The general exemption provisions for religious organisations have been a core part of our anti-discrimination laws for a very long period of time. They are symbolic in recognising that there are areas where correct laws and correct approaches to anti-discrimination do potentially clash with the rights of religious institutions to uphold their teachings and their views. To accommodate those rights, there has been a general exemption provided to religious organisations.

It is my understanding that this change that the government seeks to make to this legislation deals particularly with the provision of aged-care services. It is, further, my understanding that the key organisations—the religious organisations and institutions who provide such aged-care services—have made it clear that they do not discriminate in relation to sexuality issues. They do not discriminate in relation to any matters. They say that this really is a matter of principle—the principle being that, if you start to erode that general religious exemption provision in anti-discrimination laws, you will, of course, start to undermine it in other ways which will potentially impinge upon getting and maintaining that appropriate balance between the right to freedom of religion and the right to not be discriminated against.

I would hope that those assurances from those organisations are correct; and I would expect them to be judged very harshly if they are incorrect and those organisations are in any way discriminating on such grounds while providing taxpayer subsidised and supported places. I am disappointed that the government has changed the tone of what should have been very much a unifying debate in terms of this legislation by seeking to make these changes on the floor of the Senate at the Senate stage of debate for a bill that has already passed the House of Representatives. I do not know why the government chose to make this last-minute change, and I look forward to hearing during the second reading stage—if indeed there is one in these truncated debates—the government's reasons for making such a change.

Beyond that one area of concern, more broadly, this is a very welcome piece of legislation. The bill extends anti-discrimination protection in Commonwealth law on the grounds of sexual orientation, gender identity and intersex status. As I indicated, the bill follows from 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 committee into that bill, that the Sex Discrimination Act should be amended so that it extends to discrimination on the basis of sexuality. This was the policy which the coalition took to the 2010 election. It remains coalition policy, and it is a very important coalition policy.

Sexual orientation is defined in the bill as a person's sexual orientation towards persons of the same sex, a different sex, or the same and a different sex. The use of 'different' rather than 'opposite' reflects the recognition in the bill of those whose sex is categorised as intersex or by reference to their gender identity. Gender identity is defined 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. Finally, intersex status is defined as the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male, or a combination of female and male, or neither female nor male. These are important extensions to our anti-discrimination provisions.

The bill will prohibit discrimination on new grounds, which are extended to include areas of work including employment, superannuation, contract workers, partnerships, qualifying bodies, registered industrial organisations, employment agencies, education, goods, services and facilities, accommodation, land, clubs and administration of Commonwealth laws and programs. Exemptions and limitations will apply in relation to membership of voluntary organisations, competitive sporting activity and, as I was discussing earlier, religious organisations, save for the foreshadowed government amendment. New exemptions are introduced in relation to marriage, conduct in compliance with other legislation and keeping of records in relation to sex or gender.

I am very pleased that the government, in bringing this substantial bill to the chamber, has picked up on the recommendations of the minority Senate report of coalition senators into the Human Rights and Anti-Discrimination Bill. That was a substantial piece of work and I particularly pay credit to my colleagues such as Senator Brandis and Senator Humphries for their good work in this place. Anti-discrimination laws should be a unifying feature of debate in this parliament. We have come a very long way.

I was at a function earlier tonight, organised by the Burnet Institute, which marked 30 years since the discovery of HIV. Cast your mind back 30 years to the level of discrimination, fear and concern that existed in parts of our community and to the real concern of what the unknown was in that regard. In relation to sexuality issues we have come a very long way in terms of understanding, acceptance and appropriate recognition. That does not mean that the job is done. It just means that we have taken a lot of very good steps in the right direction. At its heart this bill is another step in the right direction, adopting change as recommended by the coalition senators. We should continue to strive to minimise and to eliminate discrimination in all of its forms. We must make sure that in doing so we take the community with us and that these laws are enacted with widespread community support.

I note that the coalition will be pursuing another area of amendment. The bill proposes a new exemption for conduct done in direct compliance with a prescribed law of the Commonwealth, a state or a territory. This will only apply to discrimination on the basis of the new grounds. These laws have not been exhaustively identified and will be prescribed by regulation after consultation with the relevant jurisdiction. One relevant example of the need for this exemption is that the legal recognition of a person's sex is, of course, a matter for the states and territories.

Clause 52 of the bill provides a savings clause in respect of anything done in direct compliance with the law of the Commonwealth or of a state or territory that is prescribed by regulation. This, as the attorneys-general of the three largest states have argued, is an unduly wide vesting of de facto legislative power in the hands of executive government. It also makes the operation of state and territory laws dependent on the making of Commonwealth regulations from time to time, creating unnecessary uncertainty and complexity, particularly where, as in this case, the Commonwealth does not have plenary power. Accordingly, the coalition intends to amend the savings provision to exempt actions that are in accordance with, or necessary to comply with, state or territory laws. This amendment should be read very much as an amendment to try to ensure that the bill can function in a proper way. It should be read as a technical amendment, although it is a very important amendment, to ensure that we do not have a situation where the anti-discrimination laws of the country are being used as some sort of Trojan Horse to trample over the rights of states to legislate in other areas.

I conclude my remarks by acknowledging the intent of this bill and the good work that underlies the introduction of this bill. Once again, I express my disappointment at the approach the government has taken by surprising many with some last-minute amendments to this bill. I do hope the government will consider that it would be far better for this legislation to enjoy unanimous support, and be a unifying step forward, rather than the concerns and criticisms that have come about as a result of the government's attempt to erode the general religious exemption provisions and the manner in which the government is doing so.