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

I rise to indicate, for reasons touched on already by Senator Birmingham, that the coalition opposes the amendment moved by Senator Wright to this bill, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. It also opposes the amendments moved by the government in the sheet circulated in the chamber, particularly items (1) to (3). The reasons are set out, in large part, in the coalition senators' dissenting contribution to the report of the Legal and Constitutional Affairs Legislation Committee inquiry into this bill. The effect of the amendments, and of the Greens' amendment, is to remove the exemptions previously available to religious organisations which provide aged care.

The government, of course, introduced this legislation without a provision for the removal of such exemptions. It stated, in fact, at the time it moved the original bill, that it was its intention 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. That situation no longer stands. The government has reversed its position and this amendment takes that protection away for religious organisations which have sought to rely on such exemptions.

The government's amendment will restrict the existing exemption from antidiscrimination law for religious organisations which provide Commonwealth funded aged-care services or accommodation. The government has done so in a manner which has not permitted proper consultation to occur and it has brought this amendment on for debate as a matter of urgency which is, frankly, inexplicable. I remind the Senate that the inquiry into this bill by the Legal and Constitutional Affairs Legislation Committee, as you would well know, Madam Acting Deputy President Crossin, was conducted without public hearings. There may well have been other contributors who would like to have taken part in this matter but who, for reasons which were not apparent when they looked at the original state of the bill, may not have seen the need to actually pursue such matters.

The government says that this amendment is not controversial because it has been welcomed by the majority of religious aged-care providers. However, perusal of submissions provided by religious organisations to the inquiry into the failed Human Rights and Anti-Discrimination Bill and this bill have indicated that this is misleading and that their position is not nearly as uniformly supportive as claimed. For example, while some organisations, such as the Uniting Church, support the removal of the exemption, other large religious institutions have stated that making the link between the 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 consultation. They argued that, while it is not policy to discriminate in any event, religious organisations should be given the opportunity to justify their positions or otherwise in light of the fundamental freedoms of religion and association. This position, or a close variation on it, is also argued by the Australian Catholic Bishops Conference, the Salvation Army, Catholic Health Australia, the Presbyterian Church of Australia and smaller denominations. The providers all indicated that their policy is not to discriminate in practice and, 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 a religious exemption cannot be supported. The coalition therefore will be opposing items (1) to (3) of the government's amendments and Senator Wright's amendment.

I will take the opportunity while on my feet to comment on the coalition amendments since there will not be another opportunity to do that. The amendment is standing in the name of Senator Brandis. The bill proposes a new exemption in clause 52 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 will not have been exhaustively identified and will be prescribed by regulation after consultation with the relevant jurisdiction. One relevant example for the need for this exemption is that the legal recognition of a person's sex is a matter for the states and territories. The attorneys-general of the three largest states have argued that this is an unduly wide vesting of de facto legislative power in the hands of the executive government. It also makes the operation of state and territory laws dependent on the making of government regulations from time to time, creating unnecessary uncertainty and complexity, particularly where, as in this case, the Commonwealth does not have plenary power.

Thus, if a regulation exempting state laws were not made, the Commonwealth's legislation would not necessarily override the state law, as it would not create a direct inconsistency or a so-called 'cover the field' inconsistency if the subject matter of the state legislation were not within the Commonwealth's legislative power. These matters would need to be repeatedly addressed and resolved, including through litigation, in relation to various elements of state legislation operating in various contexts to the detriment of everyone involved. 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. I commend that amendment particularly to the Senate.