George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to 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.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I rise tonight to speak on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. The Australian Greens have long championed freedom from discrimination on the basis of sexual orientation, gender identity or intersex status as well as protections from discrimination for same-sex de facto couples. So, to the extent that it establishes these protections, we do welcome this bill. We further commend the government's late amendments which provide a limitation on religious exemptions in the provision of Commonwealth funded aged care and which update terminology in Commonwealth legislation to provide consistency with this bill.

All that said, however, this bill is equally significant for what it fails to protect. The Australian Greens strongly believe that this bill should have abolished the provisions of the Sex Discrimination Act which exempt religious bodies from anti-discrimination law. We further believe that the new exemption stating that 'conduct is not unlawful when … it constitutes a request for information and keeping of records in relation to sex and/or gender' should be subject to a sunset clause.

The Australian Greens are always working towards equality for everyone. We seek to ensure that individuals and groups receive fair and equal treatment so that every person can have the opportunity for full participation in society and the chance to live life to its full potential. Protecting human rights in this way is not just intrinsically right; it also provides considerable instrumental benefits for our society. Equality involves affording dignity and respect to everyone and not treating them unfavourably because of their background, their religion or their housing or social status, or on the basis of personal characteristics such as sex, race, age, sexual orientation, gender preference or disability.

Along with many other Australians, the Australian Greens were extremely disappointed that the government abandoned the draft Human Rights and Anti-Discrimination Bill earlier this year. Despite three successive Labor Attorneys-General committing to streamline and modernise anti-discrimination and human rights law in Australia in the form of that instrument, they ultimately and unfortunately abandoned the project. This bill, while introducing some long needed reforms, is a mere shadow of that important reform.

Not only has the government declined to modernise federal anti-discrimination laws generally, it has also declined to address some of the most pronounced cases where an organisation can deny a person's human right to freedom from discrimination. This bill's preservation of sections 37 and 38 of the Sex Discrimination Act 1984, and indeed its extension of these exemptions for religious bodies to discriminate on the grounds of newly protected attributes, represents another seriously missed opportunity.

Freedom of religion is an important human right. However, religious bodies should not have a free pass to discriminate. The Sex Discrimination Act as it stands gives broad exemptions from anti-discrimination law for religious bodies and educational institutions set up for religious purposes. The exemptions fly in the face of the idea that people should be treated equally, with dignity and respect, so that they can have access to opportunities and services such as health, education and housing. As a result of these exemptions, a religious hospital can refuse to employ a gay doctor, a religious school can refuse to enrol a bisexual student or to hire a lesbian administrator, and a faith based homelessness shelter can refuse to accept a transgender resident.

Research shows that there are students with protected attributes in every education system in Australia, including religious educational institutions, and that these students continue to experience homophobic abuse and mistreatment. Systemic discrimination sanctioned by the state makes it much harder for a tolerant, rights oriented culture to flourish in Australia.

As well as being the Australian Greens spokesperson for legal affairs, I also have responsibility for education and mental health. Sadly, these three areas intersect powerfully when it comes to exemptions for religious schools which are allowed to discriminate against students on the basis of their sexual orientation, gender identity or transgender status. The serious consequences of discrimination for the mental health of young people who identify as gay, bisexual, transgender or intersex are well known. There is compelling and troubling data about the disproportionate incidence of depression, anxiety and self-harm among young people who perceive themselves to be less than worthy or equal because of the treatment they receive. Treatment like this at the hands of religious institutions, permitted by our state, is highly damaging and fundamentally wrong.

The Australian Greens believe that the religious exemptions in the Sex Discrimination Act strike the wrong balance between freedom of religion and protection from arbitrary discrimination. It is a great shame that this Labor government has passed up two important opportunities to strike them out. This bill permits a request for information, or the keeping of records, to require that a person be identified as either male or female, irrespective of how a person identifies themselves. There are a significant number of people in our society, with estimates ranging between 1.9 per cent and four per cent, who just do not—and indeed, in some cases, cannot because of their physiological make-up—identify strictly as either male or female. They face daily difficulties in employment, housing, credit and welfare matters because the associated requests for information and the records kept do not accommodate their identity. Given that the draft Australian government guidelines on the recognition of sex and gender will be adopted from 1 July 2013, we believe this aspect of the bill needs to be revisited as a matter of priority.

The Australian Greens have raised with the Attorney-General and the government the issue of consistency between the proposed Commonwealth legislation and state legislation. Some jurisdictions in Australia, such as Tasmania, have a more advanced state of anti-discrimination law where there are no exemptions for religious bodies. It is interesting to note that the world has not ended in Tasmania, despite the protestations of religious organisations against the lifting of the exemptions! We have some concerns that, in jurisdictions with more progressive laws, like Tasmania, the amended Sex Discrimination Act will be so inconsistent with them as to render such jurisdictions' laws invalid. However, we support this bill on the basis of advice from the government that the Commonwealth legislation is not intended to cover the field with respect to such jurisdictions. We support this bill on the basis of advice from the government that it intends for state protections from discrimination to operate concurrently with the federal law. In short, we support this bill because it goes some way towards improving protections for people against discrimination in Australia.

I indicate that we will not be supporting the coalition amendment, because this would remove the function whereby a regulation can specifically address this issue with respect to a state's legislation. We oppose this coalition amendment because it would allow a regressive state to pass discriminatory laws with automatic precedence over the Commonwealth law, and that is certainly not an outcome that the Australian Greens will countenance.

There is no doubt that this bill could have gone further and falls short in many respects, and the Australian Greens will continue to work towards a future where this task is complete. I will be moving a second reading amendment on behalf of the Australian Greens, as circulated in the chamber. The amendment notes, while not declining to pass the bill, that this bill is intended to replace the Human Rights and Anti-Discrimination Bill 2012 and, despite three successive Attorneys-General committing to streamlining and modernising anti-discrimination and human rights law, this bill does not achieve that; that this bill preserves sections 37 and 38 of the Sex Discrimination Act 1984 and so extends exemptions for religious bodies to discriminate on the grounds of newly protected attributes; and that the government has stated that this Commonwealth legislation is not intended to cover the field with respect to jurisdictions with more advanced anti-discrimination laws and intends for state protections against discrimination to operate concurrently with the federal law. I commend the amendment to the Senate.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

I am very pleased to give my support to the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. This bill is the latest in a very long list of reforms delivered by this federal Labor government to support the rights of gay, lesbian, bisexual, transgender and intersex Australians. These reforms have included recognition of same-sex couples and parents; improving the processes by which transgender and intersex Australians have their identity recognised on Commonwealth documentation; providing Australians who want to get married overseas with access to certificates of no impediment; and introducing specific health and aged-care strategies for gay, lesbian, bisexual, transgender and intersex Australians.

I am very proud to be part of a party and a government that has delivered these and so many more reforms, and that we have now introduced this bill. I would really like to commend the GLBTI community for their advocacy and assistance to government in bringing these many reforms to the table. It is only through the community sharing their experiences and bringing them to the fore that we, governments and parliaments, can understand and adjust the way we govern ourselves in the interests of all Australians.

To me it is almost unbelievable that, in 2013, gay, lesbian, bisexual, transgender and intersex Australians can still be legally discriminated against under Commonwealth law, even though they are widely accepted. Most Australians know gay, lesbian, bisexual, transgender and intersex people. We understand that sexuality is neither a choice nor a reason for people to be subjected to discrimination or harassment. Fewer Australians, however, have a good understanding of the issues relating to gender identity and intersex status. A person's 'gender identity' refers to their inherent sense of themselves as being male or female, or perhaps even a combination of the two, and this may not always align with the sex they were assigned at birth. 'Intersex status' is quite a different thing. It refers to someone whose biological make-up—the way they were biologically identified at birth—is not wholly male nor wholly female and, in fact, may be a combination of both or may be lacking some of the attributes. So there are a range of quite specific and diverse genetic and biological conditions that mean that a significant number of people have a biological intersex status.

Like sexual orientation, neither gender identity nor intersex status are a choice and neither are a reason for a person to suffer discrimination or harassment. However, sadly, like GLBTI Australians, gender identity and intersex status can and often are reasons for people to suffer discrimination. As I participated in the inquiries into this legislation, conducted by the Senate Legal and Constitutional Affairs Legislation Committee, I and other senators heard many significant stories about the kind of discrimination and harassment suffered by GLBTI Australians—the most appalling examples of discrimination.

I know of people with spotless professional histories who have been sacked from their employment with no recourse on the discovery or disclosure of their sexual orientation, gender identity or intersex status and, importantly, of young people who are so bullied and harassed so badly within educational settings due to their sexual orientation or gender presentation that they become depressed and suicidal in the face of institutional inaction, a failure of these organisations to act to protect the young people in their care. It is really important that this legislation creates that onus of protection on Australia's educational institutions.

There is also evidence of older GLBTI Australians being, if you like, forced back into the closet, to hide or lie about their identity and life, in order to be assured of receiving respectful care in their older and most vulnerable years in aged-care settings. It is all very well for Senator Brandis this evening to complain about the amendments that the government is putting forward, and I am proud that we are putting forward, but we put them forward not out of an act of political divisiveness—far from it. We put them forward because the lesbian and gay community have worked very hard with the aged-care sector to put protocols in place to say, 'This is how things should be done.' They have worked hard with the aged-care sector and with GLBTI Australians to identify the kind of discrimination that older GLBTI Australians face.

Discrimination in aged care is well documented. Aged care is a service that is subsidised by the Commonwealth so that all Australians, if they need care and support, can access an aged-care service. Not all Australians have a choice about the kind of aged-care institution that they would like to access. In many communities there is only the local service. So I put on a much higher order the right of GLBTI Australians who need care and protection in an aged-care service to have their personal liberties and rights respected. Those services are subsidised by the Commonwealth, and it is vital that the Commonwealth should mandate that GLBTI Australians have the same access to those services as all other Australians.

In the self-proclaimed, egalitarian Australia—one that prides itself on a fair go for all—discrimination where people are denied health care, social assistance and even denied banking services on the basis of their gender identity, their sexual orientation or gender presentation, is plainly unacceptable. So I am very pleased that, with the passing of this bill into law, we will help and provide redress for Australians where this discrimination exists.

There is, however, more work to be done. We need to look seriously at including a range of other attributes within our discrimination protection law as part of a consolidated federal antidiscrimination law but also within the Sex Discrimination Act. For example, being a victim of domestic violence is an attribute that can cause people to be significantly discriminated against. It can cause people to lose their housing and it can cause people to lose their employment at a time when they are already incredibly vulnerable. There is a significant need for us to continue to look at all those kinds of gender related aspects of discrimination.

I also think that we need to engage with the philosophical and legal framework behind the way we integrate existing acts together. I hope that the consolidation is something that will happen in the future, and I am assured that it is something that the government remains committed to. As part of this, I do believe we should be considering whether people who hold religious beliefs also need protection from discrimination. I also believe we need to tighten up on religious exemptions.

Aged care is but one example of organisations receiving funding from the Commonwealth to deliver services to the community—services that we expect community members to be able to access—and, personally, this is something that I put a great deal of priority on. People do not have a choice about which service they are referred to. So, if you are a transgender Australian, for example, and you are referred by Centrelink to visit your local Employment Plus service, that is the service through which you are required to access your services. There is absolutely no transparency within government as to which services retain the right to discriminate or not. As a consumer, as someone who wants to access services, there is no transparency around which organisations in our nation retain the right to discriminate. Most often, Catholic institutions are listed as charities. They are not listed, for example, as religious institutions when you look at the government bureaucracy and paper work. So there is absolutely no transparency or capacity for Australians to be reassured that, when they access a service, there is a possibility of them suffering discrimination at the hands of that service. These are the kinds of things that we must address in future, and I lay that proposition on the table.

Legislation is only one tool that we have for fighting discrimination and intolerance in Australian society. I am proud of how far we have come as a nation and I appreciate the enormous difference that that makes to the lived experience of GLBTI Australians. However, there are still far too many people who suffer extreme discrimination and extreme mental health impacts from that discrimination. So, of greater importance is the change that needs to continue to take place in our hearts and minds—in the hearts and minds of the community and of individual people—so that we treat each other with compassion and respect in day-to-day life. I am very pleased to say, though, that legislation like the legislation before us can open very real avenues for redress. When discrimination arises, legislation like this can help point the way for society to go. I commend the bill to the Senate.

Gary Humphries (ACT, Liberal Party, Shadow Parliamentary Secretary for Defence Materiel) Share this | Link to 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.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I will not speak for long, because the history of this bill has already been well discussed. The fact is that, until the government put up the amendment to this bill, it had the support of all parties and all people in this place, because it was good policy and it was good legislation.

In terms of this amendment, I find myself somewhat conflicted. I support the aims of this amendment. It was interesting to go back and look at some of the comments made in 2001 and 2004 by then Liberal ministers for ageing and for aged care around the development in this sector where people have moved from being seen as inmates or patients who should be grateful for whatever they get to people who are seen as having rights and the right to feel as though, when they are in an institution, that the institution has been developed into the most home-like institution possible. This is a mood that was started by the coalition. Ms Julie Bishop, in 2004 as the Minister for Ageing, talked about the introduction of certification standards into the physical environment where residents lived. She said, 'These are their homes.' This is true, and that is the way that we are now trying to push aged care more and more. We have extended aged care at home, but when people move into aged-care facilities we want them to feel as though they are in a home, their own home. In 2001, Ms Bronwyn Bishop started this as the Minister for Aged Care. She said, 'All of our policy is designed to have respect for the individual.'

I do not think that the religious organisations can have it both ways. They cannot say, 'We don't discriminate' or 'We respect the individual' and at the same time say, 'But we don't want any legislation that affects the way we treat people.' The amendment to this bill being proposed by the Attorney-General would have benefited from a lot more discussion and a lot more debate. It seems that there are number of issues that need to be looked at.

I remember an inquiry into suicide and mental health in Australia that you were involved in, Madam Acting Deputy President Moore. We heard from a number of service provision organisations, all organisations that in some form or another would have given evidence to the earlier Human Rights and Anti-Discrimination Bill—arms of the Uniting Church, the Catholic Church and so on. I said to every one of those organisations: suicide used to be considered a sin by your church. Is it still a sin? No-one said, 'We've stopped calling it a sin,' but they all made the point that they were trying to frame the whole argument differently. They said they were looking at the issue from the health aspect of the individual, not from the religious aspect of the individual.

Can they have it both ways? Religious organisations would like to have it both ways. They would like to say, 'We can make the rules the way we want to make the rules for people who use these facilities.' I have no dispute whatsoever with organisations such as Catholic schools and other religious schools having the right to decide what values their staff are expected to embody. I do not think that a religious school or hospital, or an aged-care home for that matter, should have to employ people who clearly do not live by the values that that organisation adheres to. But that is quite different from the people who are the patients, the residents or the students of those organisations.

There have been suggestions around this that hospitals and schools are not included, just aged-care facilities. Do we need to include hospitals and schools? I do not think an intersex person or a person in a homosexual relationship or a transgender person would be denied, as a student, rights to enter a school. Nor would they be denied, as a patient, rights to enter a hospital. So why should we allow aged-care institutions that are funded by the federal government to decide who the residents of those aged-care facilities will be based on the sexual orientation or the sexual status of the people involved?

I do not think it is reasonable for that to be the right of the organisations.

As a number of people have already pointed out, numerous organisations have told us that they do not discriminate. If we look at some of the comments made about this surprise amendment, a number of providers told us that their policy is not to discriminate in practice and the need for this regulation is not demonstrated. How do you, perhaps as a homosexual couple, demonstrate the need for this legislation when no law has been broken? What did you do? There was no discrimination being conducted—unless this amendment goes through—so we have no idea how many people out there of intersex status or homosexual couples or transgender or bisexual people have been discriminated against by religious organisations when they wanted to become residents of those organisations. We are not going know the level if there has not been an issue.

It seems to me that the amendment has merit but it should not have come to us in the way it has. It would have benefited from further debate and discussion and an opening up of some of the issues around the religious organisations. It struck me as interesting that it was the Catholic Women's League that put in the submission around the amendment to the Legal and Constitutional Affairs Legislation Committee, of which I am a member, and not Catholic Health Australia, which I think would produce at least a submission a week to various committees in this place or to departments. It certainly would not be for lack of resources to create one quickly that we did not receive a submission. It seems to me that many of the religious organisations choose to put on a non-religious face when it suits them in service provision and the like, but then, again when it suits them, to pull out their religious values and religious exemptions in that area. I think this is an area that needs a lot more debate, but I do support this amendment.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to contribute to the discussion on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. I join the disappointment expressed by our deputy leader, Senator Brandis, that when this legislation went into the House of Representatives it had the support of the Labor government and the coalition. It appears that it was only when it arrived here in the Senate that the amendment, which is now the question of so much discussion and so much disappointment from this side of the chamber, has started to dominate the discussion.

There is no argument that there should be no circumstance in Australia in which we would see discrimination based on sexual orientation. As we know the bill follows from the government's abandonment of its Human Rights and Anti-Discrimination Bill earlier this year, the effect of which was to adopt the recommendations of coalition senators. I think you, Madam Acting Deputy President, have been very much involved in the deliberations and discussions that have gone on in this particular area. It is this amendment to extend the exemption to religious organisations and others that has made it the subject of so much discussion. When we saw the original legislation on the removal of discrimination on the basis of sexuality, anybody in this chamber would surely have accepted it. As I recall, it was the position that the coalition took to the election in 2010. Earlier speakers have referred to different aspects of sexual orientation, which is defined as a person's orientation towards persons of the same sex or different sex or the same and different sex. Gender identity is defined as gender related identity, appearance or mannerisms of the other gender. 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 both or, indeed, neither of the two.

The prohibition on discrimination is being extended to areas in the workplace—including employment, superannuation, contract workers, partnerships and the like—and to education, to goods and services, to accommodation, to clubs and to the administration of Commonwealth laws and programs. We would naturally support all of these. I join Senator Brandis in his comments that, to this point, the coalition supported the bill in the House of Representatives and would support it here in the Senate. However, the position of the coalition, which I share strongly, would be to oppose the foreshadowed amendments and, should those amendments proceed, then we would have no option but to oppose the bill itself.

I listened very carefully to the contributions of Senators Wright, Pratt, Humphries and more latterly Senator Boyce. I would describe myself as an active member of the Catholic faith, a regular church goer, a person who, for the last 11 years leading up to 4 February 2012, was the carer of an aged mother who went from being a highly-independent, very intelligent woman to suffering a major stroke. I, like many other Australians, found myself in the position of going from knowing nothing about aged care—or the need to guide an aged parent into aged care—to becoming an expert within a matter of weeks. Indeed, I had to fight the case through the medical system for her to be assessed because initial shock, anger and disappointment all led to a determination that my mother's case should be the subject of intense examination by the medical profession before a permanent decision was made that she possibly could not recover from that left-side stroke—and, indeed, she did not.

I make that point because of the observations made by my Senate colleagues on the circumstance of the right of religious organisations. My mother then spent time, from February 2002 until 4 February 2012, in the Southern Cross Care facility of Margaret Hubery House in Perth, run by the Knights of the Southern Cross—a Catholic aged-care institution. If Senator Boyce were here, I would say to her that, in the entire time that I had responsibility as the primary carer for my mother while she was in that facility and as a person who engaged actively with the management of the Margaret Hubery facility and Southern Cross Care homes, I never at any time saw a circumstance of discrimination against any resident. There was a wide range of residents. There were aged sisters and aged brothers and priests. There were people of every or no domination. It was not my business to inquire into their gender identity, sexual orientation or intersex status, if they had one, but I can say that at no time have I ever observed any discrimination of any type.

Having said that—and this is where I do take issue with Senator Pratt—I respect the right of religious organisations to find themselves beyond the reach of discrimination law of the type that is being proposed in this amendment. I believe there is a right of religious practice. There is a right of religious worship. This has got to be respected and protected in the same way as the rights of those about whom we are speaking this evening. This is the sad irony of the bill and its amendments. The bill is calling for a removal of discrimination on the basis of sexual or other identity or intersex status, and yet at the same time we are demanding the end of this discrimination we seem to be accepting a scenario in which groups such as religious organisations with regard to the aged-care sector must be bound up in the same voice as those against whom we are pleading for discrimination to be removed.

I believe, as has been said here this evening, that you cannot have freedom of religion if you turn around and have legislation which imposes on a church or a religious institution something that is at variance with its very tenets or rules. If there is a fault with those, it should be examined. It is dangerous to say that, simply because there is Commonwealth government support for an organisation, such as the religious organisation in the case I referred to, the Knights of the Southern Cross, you can at the stroke of a pen remove the independence and capacity of that religious organisation to preserve and respect the tenets upon which it was based. I would argue that very, very actively. It is not up to the state to tell churches what they can or cannot believe.

We have a long tradition in this country of the involvement of churches, particularly in education, health, aged care and, more latterly, complementary services such as mental health services, disability services, pregnancy health services and a whole range of others. There may be an argument on the part of some people to say, 'If they receive some federal funding or state funding, then they must automatically come under the auspices of the state or federal government.' I dispute that. I go back to, for example, in my own state of Western Australia, the very earliest days of our colony when in the education space the Mercy nuns arrived in early January. It must have been stinking hot when those Irish nuns arrived in Perth in early January. Within seven days of them arriving, using as desks the very packing cases that their belongings came in, under a tree in Victoria Square they were already commencing the education of young women, including young Aboriginal girls. That is the rich tradition of churches and other religious organisations.

I know we are focusing particularly this evening on the aged-care discipline, but, just because we now have a circumstance in which there is state and federal funding of education, does that mean it must be totally dominated by the state or federal government? When I went through school there was no support at all for Catholic education from state or federal sources. Yet that did not stop the rich development of our education. Of course, in many cases the only reason we got into the professions and, indeed, probably into the positions we find ourselves today is that the sacrifices of those religious organisations and of our own families and parents allowed us that opportunity. I do not think it equates to a circumstance in which we say in this place tonight that, just because there is some federal and/or state funding in the circumstance of aged care, the legislation that we are proposing with regard to sex discrimination should find its way automatically into those areas associated with aged care as it is provided by religious and like organisations.

Religion is a universal right under article 18 of the Universal Declaration of Human Rights. I ask my colleagues to remember and respect that when we vote on this issue this evening. I plead, as Senator Brandis did, that in the dying days of this parliament we can put to one side an amendment that is divisive, an amendment that is going to cause this Senate to divide along party lines. It is a fact that we all—the Labor Party, the Greens, I understand the Independents, Senator Madigan and the coalition members—support the bill. But do not send us again to a circumstance of division over something that did not even find its way into the House of Representatives when the bill was debated. This amendment has been introduced in this place.

I will not join the debate—I will not lower myself to the debate—about the reasons or the motives of the Labor government in introducing this amendment. I just plead for common sense on an issue as important as this one, that we could actually allow ourselves to have universal support for the bill right across this chamber. I plead with the government: withdraw this amendment and do not require us to oppose it and therefore move to oppose the bill, should the amendment fail.

Arthur Sinodinos (NSW, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to 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.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

One of the advantages of speaking late in the night, after a number of my colleagues have spoken on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, is that all of the technical issues addressed in the bill have been fully canvassed. I am particularly pleased to have heard from Senator Sinodinos and Senator Back, who gave a very powerful speech on some of his personal experiences in relation to the good work that many religious orders do, particularly in the aged-care area.

What concerns me about this bill is the way that the Labor Party are managing it through this chamber. As I understand it, when this bill went through the House of Representatives recently—I am not sure if it was earlier this week or perhaps a couple of weeks back—it had universal support because it dealt with discrimination and it dealt with the extension of laws to prevent discrimination on the grounds of sexual orientation, gender identity or intersex status. It was a bill that had been around for a while and on which there had been quite a bit of discussion and consultation. That consultation and that policy work resulted in a bipartisan approach being taken to this very important issue. When the bill went through the lower house, the Labor Party, the single Greens person, those Independents that were interested enough to contribute and certainly the coalition all indicated support for the bill. On that basis, it passed through the lower house.

Something happened on the way to the Senate, and I am not sure that any of the speakers from the Labor Party or the Greens have yet indicated to us what it was that happened—

Senator Siewert interjecting—

I see, so the aged-care committee reported—

Senator Siewert interjecting—

And that was a unanimous report, was it, Senator?

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Order! Senator Macdonald, I appreciate that the interjection is helpful, but it is disorderly to take note of interjections.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

It was helpful, but clearly it was not a unanimous report and something happened then—perhaps I am wrong—not on the way to the Senate but on the way from the House of Representatives to the committee, which is controlled by the Greens and the Labor Party. What I want to know is what actually happened on the way to the committee and on the way to the Senate that changed the view of the government when this matter was dealt with in the other place. I do not think anyone has properly explained that. Clearly, one could make some guesses on conspiracy theories, on what it is that the Labor Party or the Greens have against religious organisations. In fact, I am quite surprised that people like Senator Farrell have allowed this to get to this particular stage. I wonder what Mr Joe de Bruyn thinks about this. He is that union guy who seems to control the South Australian Labor Party and, through them, the Australian Labor Party. So what was it? Has any explanation been given in this debate so far as to what this amendment is all about?

This amendment and the way that the Labor Party have dealt with it and the way they deal with any comment that gets close to the truth are in fact interesting. Here was a bill that received universal support in the other house. So what happened? Why didn't all of the Labor members who supported this in the House of Representatives come to this conclusion as they debated this bill so minutely in the other place? Somewhere along the line the Greens or someone have influenced the Labor Party in the Senate—

Honourable senators interjecting—

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Order! I remind senators that, under standing order 197, interruption of a speaker, except on points of order or privilege or to identify a lack of quorum, are disorderly.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

Actually, Mr Acting Deputy President, you alert me to the fact that there is not a quorum here. (Quorum formed) I am glad that the Labor Party came in to hear me speak on this debate. They were very keen to extend the hours of debate tonight, but it seems it took them almost three minutes to rustle up enough people to come into the chamber to keep it going. That is symptomatic not only of how the Labor Party run the chamber but of how they run the government.

As I was saying, this bill contains measures to extend protection from discrimination on the grounds of sexual orientation, gender identity and intersex status. It also extends the existing ground of marital status to marital relationship status to provide protection from discrimination for same-sex de facto couples. These amendments give effect to the government's commitment to introduce new protections against discrimination on the basis of sexual orientation or gender identity.

As I mentioned before, this bill, in that form, was totally supported by all the members of the lower house who spoke on the bill. I raised before that I was suspicious as to what happened between the House of Representatives and the Senate committee. By way of disorderly interjection, someone from the Greens political party pointed out that it was some submissions from aged-care authorities. One wonders why those same persons who were so concerned to require the Greens and the Labor Party in their majority report to come to a different conclusion in the Senate committee did not approach their local Labor member at the time the bill was being discussed in the lower house. One wonders why these groups did not approach the minister as the minister was preparing this legislation. One can only come to the conclusion that either the Greens or the Labor Party have this fixation on anything that involves religious freedom and the ability of religious organisations to determine their own destiny when it comes to the way they look after, the way they manage, their aged-care, educational and other facilities.

That is where this bill as it is proposed to be amended is of great concern to the federal opposition. We would, as we indicated in the lower house, support the original bill but we will not support these amendments, which make it quite clear that religious organisations are going to be dictated to by a secular government on whether or not they can get funding for aged-care units, for aged-care facilities, if they do not toe the line for the political philosophy, bias or focus of the government of the day and their Greens partners.

This is symptomatic of the way the Labor Party run the government. Mr Acting Deputy President, you might recall that they are very good at making policy announcements and then, when people alter their position because of those policy announcements, changing them. I only have to mention the solemn promise before the last election that under no circumstances would Ms Gillard or any government that she led ever introduce a carbon tax. It was the most solemn promise. It was repeated by her on several occasions. Then the Treasurer, when we alerted people to the fact that you could not believe the Labor Party, said before the last election that we were being 'hysterical' in suggesting that the Labor Party would not carry through their solemn commitment not to introduce a carbon tax. Yet what happened within a couple of months of their becoming the government after the last election? The Labor Party broke that solemn promise and introduced a carbon tax.

I only raise that to say that, with this bill, the approach of the Labor Party, supported by their Green colleagues, was exactly the same. They approached the opposition and said: 'Here's the bill. Do you agree with it?' We looked through it carefully, we debated the issues and we thought, 'Yes, this is an appropriate bill,' so we indicated support and it got a fairly easy passage through the lower house. But somehow, somewhere between the lower house and the upper house, we have got this change to the bill, which smacks of a government wanting to impose its will on the freedoms that have previously been enjoyed by religious organisations and those who have particular rules in relation to the way they run their facilities.

As my colleagues in this debate have indicated, the bill also contains minor amendments to address some drafting anomalies in relation to family responsibilities and makes minor consequential amendments to the Migration Act. Again, that was all fine. The principal effect of the original bill was to implement the recommendation that the Sex Discrimination Act be extended to cover discrimination on the basis of sexuality. Why did the coalition support this in the lower house? Why would we support the original bill in this chamber? That is a fairly easy question to answer. It is because it was consistent with the policy the coalition took to the 2010 election—and that policy remains coalition policy.

The prohibition of discrimination on these new grounds of sexual orientation, gender identity and intersex status extends to areas of work. That includes employment, superannuation, contract workers, partnerships, qualifying bodies, registered industrial organisations and employment agencies. It also extends to education; to goods, services and facilities; to accommodation; to land; to clubs; and to the administration of Commonwealth laws and programs.

The bill allows exemptions and limitations for membership of voluntary organisations, competitive sporting activity and religious organisations. It also extends the current exemption in section 38 of the act relating to educational institutions established for a religious purpose so that otherwise discriminatory conduct by those institutions on the grounds of sexual orientation and gender identity will not be unlawful.

The existing exemption which permits exclusion of persons of one sex from participation in competitive sporting activity will be broadened to permit discrimination on the grounds of sex, gender identity or intersex status. A new exemption is proposed so that it will not be unlawful, merely because the option is not provided to enable a person to identify as neither, to request information as to whether a person is male or female. The purpose of that exemption is to ensure that the regulatory burden of the bill is minimised, given the small number of people likely to identify as neither male nor female. The Commonwealth is developing its own guidelines for departments in this regard.

In relation to Commonwealth funded care services and the removal of the religious exemption, the government stated that its intention with this bill was to introduce the relevant protections as a first stage of reform but to otherwise maintain the existing overall structure, including the exemptions. However, the government has now introduced an amendment reversing that stance. This is the part of the process which disturbs me. It will restrict the existing exemptions for religious organisations which provide Commonwealth funded aged-care services or accommodation. As my colleagues have mentioned, providers such as the Australian Catholic Bishops Conference, the Salvation Army, Catholic Health Australia, the Presbyterian Church of Australia and some smaller denominations have all indicated that their policy is not to discriminate in practice. In these circumstances, the need for the regulation is not demonstrated.

If discrimination is not happening in practice, why do you need Big Brother, the government, to come in and so regulate? That has not been explained by the government or the Greens in putting forward this amendment. The providers I have named all complain that consultation has been extremely limited. They might have been surprised that there was limited consultation by this government, but those of us who have had to endure the last six years of Labor governments would not be surprised at the paucity of consultation. The Labor government and their Greens allies are serial offenders when it comes to failure to consult.

In the circumstances I relate, the removal of so fundamental a principle as the religious exemption cannot be supported. So we will be opposing the amendments being proposed by the government. If we cannot get enough senators to support us in opposing those amendments, we will, regrettably, be voting against the whole bill, a bill which, in its initial form, was strongly supported by the coalition. As I mentioned earlier, the original bill was consistent with the policy we took to the last election—and that policy remains coalition policy.

Clause 52 of the bill provides a saving clause in respect of anything done in direct compliance with a law of the Commonwealth, or of a state or territory, which is prescribed by regulation. That is, as the attorneys-general of the three larger states have argued, an unduly wide vesting of de facto legislative power in the hands of the executive government. Accordingly, as I have mentioned, the coalition intends to amend the saving provision to exempt actions which are in accordance with, or are necessary to comply with, state or territory law.

I conclude by saying again: here is a bill, the basic principles of which were unanimously supported. When this bill was debated in the lower house, there was no suggestion of the possibility of these amendments that we in the Senate are now dealing with. One can only guess why this new provision has come before the Senate. We believe in freedom. We believe in the right of religious organisations to properly manage their affairs and the affairs of the facilities they look after in a way that is in keeping with their principles and their beliefs, and this intrusion by the government is not one that we can support. It is regrettable. I certainly hope the government's amendments are defeated, in which case we can all ensure a rapid conclusion to this bill; but, should those amendments be supported, then regrettably we will be opposing the whole bill.

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

In rising to contribute to this debate on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, I do so with a degree of disappointment, because significant legislative reforms in this space, as this is, should be done in a unifying manner that takes all sides of the chamber and the Australian community with it on the journey of improving and enhancing our anti-discrimination laws. That is what appeared to be the case. After some issues surrounding the original Human Rights and Anti-Discrimination Bill that the government introduced, it appeared that the government was going to go on a cooperative, bipartisan journey to enact reforms that enjoyed support across the chamber and made incremental improvements, but very important improvements for a segment of our community, to our anti-discrimination laws. It appeared to be the case, as recently as when this bill passed the House of Representatives, that a measured, considered and unifying approach was being taken to these laws. It is unfortunate to find that, upon the bill reaching the Senate, we have a slightly different approach from the government, where it has re-engaged in areas of greater controversy in how anti-discrimination laws are applied.

What we have tried to do with these laws over a period of time is seek a semblance of balance: a balance between the individual rights of those who do not deserve to be discriminated against and the rights of those who, rightly, seek to be able to adhere to their religious faiths and doctrines. These are difficult issues, because to give on one hand often means compromise on the other. Up to now, what laws in the anti-discrimination field have sought to do is ensure a level of coexistence in both of these areas so that the rights of people to be true to their faith and religious doctrines are balanced equally alongside the rights of people to not be discriminated against. And there is no perfect solution to reconciling those two competing interests, none at all, in that area. The best solution this parliament has applied to date is to say that the rights of each should be respected, noting that in doing so there may be some conflict. The rights of some groups to be protected from discrimination may conflict with the rights to certain religious freedoms. That can lead to a clash of beliefs, of faiths, and a clash of who people are, what people are and the lifestyles that people lead.

I do not come to this chamber with a magic solution to that—aside from a fundamental principle that, insofar as it is possible, the parliament enact laws that respect as many people as possible. That is what the parliament should seek to do. I, for one, am somebody who wants to see the bulk of this bill passed, but I do not want to see it passed in a context where we substantially undermine what has been the historical approach to anti-discrimination laws—that is, respecting rights across the spectrum of agendas, not just across one level of society. That is why it pains me, and I find it disappointing, that the bill we are debating puts into conflict different rights and forces the parliament to consider trading off people's right to accept and enjoy religious freedoms against the rights of others to enjoy, in any other spectrum or area of society, the right to non-discrimination. As I said before, it is not easy, but we have to acknowledge that. If we are to take all of society on the right journey to enhance anti-discrimination laws in providing a greater basis of rights in Australia, we need to respect some of those rights that have existed on a more historical footing.

This bill seeks to extend anti-discrimination protections in Commonwealth law to sexual orientation, gender identity and intersex status. In many ways, as I said, that is an incremental improvement that is very significant to the people who are affected—but it is incremental in the sense that those same anti-discrimination principles already apply to numerous other cohorts of the Australian populace. In doing so, it would be reasonable to expect that the same principles would be applied to the new groups of people included as would have applied to those already included.

Debate interrupted.