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

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

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

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

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

Beyond that one area of concern, more broadly, this is a very welcome piece of legislation. The bill extends anti-discrimination protection in Commonwealth law on the grounds of sexual orientation, gender identity and intersex status. As I indicated, the bill follows from the government's abandonment of its Human Rights and Anti-Discrimination Bill on 20 March. Its principal effect is to adopt the recommendation of coalition senators, in the minority report of the Senate committee into that bill, that the Sex Discrimination Act should be amended so that it extends to discrimination on the basis of sexuality. This was the policy which the coalition took to the 2010 election. It remains coalition policy, and it is a very important coalition policy.

Sexual orientation is defined in the bill as a person's sexual orientation towards persons of the same sex, a different sex, or the same and a different sex. The use of 'different' rather than 'opposite' reflects the recognition in the bill of those whose sex is categorised as intersex or by reference to their gender identity. Gender identity is defined as the gender related identity, appearance or mannerisms or other gender related characteristics of a person, whether by way of medical intervention or not, with or without regard to the person's designated sex at birth. Finally, intersex status is defined as the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male, or a combination of female and male, or neither female nor male. These are important extensions to our anti-discrimination provisions.

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

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

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

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

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

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

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

Sean Edwards (SA, Liberal Party) 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. I take this opportunity while standing here in front of my Senate colleagues—because it is highly unlikely that I will be afforded the opportunity anytime later in the week, given that the government is hell-bent on ramming legislation through this chamber—to wish my Senate colleague Senator Humphries all the very best in his future endeavours. His valedictory will be on Wednesday and, as we have all become aware throughout Australia, this government is going to continue to curtail any debate, discussion or opportunity for Senator Humphries to hear from all of his colleagues when he departs this chamber for the last time on Friday when we rise.

Senator Humphries, in the two years that I have been in this place, you have been a most affable and caring colleague. You have always been available for advice, which you served judiciously with a great deal of knowledge and genuine intent whenever I came to you. I thank you very much for that. In the time that you have been in public life, you have served not only in the ACT government but here in the federal parliament. You have served the people of the Australian Capital Territory with great gusto, great skill and great intelligence, and I am going to sorely miss your contribution. I will sorely miss our walks down to this chamber during divisions, because you are a neighbour of mine. I thank you on behalf of the class of 2010 that came here and used your great spread of knowledge of what happens. I wish you and your family well. As I said, there are a great deal of things that a lot of people will say on Wednesday, but, cruelly, the opportunity will only be available for a select few. What is happening this week is indeed sad. To you and your family, go well—and thank you very much for your time here. Senator Humphries, it has been a great honour. With that, I will move on to the bill.

Sex discrimination occurs when a person is treated less favourably than a person of the opposite sex would be treated in the same or similar circumstances. It is also sex discrimination when there is a rule or policy that is the same for everyone but which has an unfair effect on people of a particular sex—this is called indirect discrimination. Everyone has a role to play in helping to build greater equality in Australia. However, once again we are seeing an example of Labor and its intention of imposing a nanny state on all Australians.

This bill represents another embarrassing act of the Gillard government. This bill will inhibit freedom of speech and opinion, a right that is so deeply entrenched and valued by Australian society. Australia deserves a government that does not drive a social-engineering agenda. Widespread community opinion opposes this bill but we continue to see this Labor government making laws that do not reflect the needs and wants of the Australian people. The coalition supports anti-discrimination law, but we believe the purpose of anti-discrimination law to be to protect those vulnerable to unfair discrimination on grounds such as ethnicity, gender, sexuality or disability.

The bill's principal effect is to adopt the recommendations of coalition senators in the minority report, which Senator Humphries referred to earlier, of the Senate Legal and Constitutional Affairs Legislation Committee inquiry into this bill that the Sex Discrimination Act should be amended so that it extends to discrimination on the basis of sexuality. It should be noted that this was the policy which the coalition took to the 2010 election. It remains coalition policy, which the government has now adopted. While the coalition supported the passage of this bill through the House, we are looking to move amendments in the Senate.

I turn to more general comments about the debate in the community of these kinds of issues. This is an issue which has engaged a wide range of very passionate people in the electorate. It is one thing to have a debate in the community about an issue—in this case sex discrimination—but it is another thing altogether when the debate turns vitriolic and personal. On the extremes of both sides—I am pleased to say that it is only a small minority—there are some truly horrible things being said about the other side. The deeply conservative in the community are making wild accusations about extending anti-discrimination protection to everybody in society. On the other side extreme supporters call those on the conservative side homophobes and bigots. It is just not nice. It is divisive and is not the Australian way. I particularly do not appreciate being spammed by people using abusive and personal rhetoric. As Guy Sebastian's hit song asks: why can't we just get along? We heard that last week from you, Madam Acting Deputy President Crossin, in your valedictory speech—why can't we just get along?

Before I came to this place I ran a number of businesses. I am fortunate enough still to have those businesses, but they are being run by other people. While I was at the helm I employed a diversity of people to work in those businesses. Never once did it occur to me that I should employ or not employ anyone on any basis other than merit and their ability to execute the functions of the job. That remains my ethic and my modus operandi today. Over the years, I have employed all of the gender groups that are discussed in this bill and none has ever failed me on the basis of their sexuality, gender or otherwise. Unfortunately, it seems that not everyone in our society is as in tune with 21st century Australia as I aspire to be. Hence our need to have anti-discrimination protection.

The Senate committee inquiry drew a range of diverse views on the bill. While we do not support this specific bill there are a number of ongoing issues that must be addressed in the GLBTI—gay, lesbian, bisexual, transgender and intersex—community that this bill, even if passed, would not completely resolve. The AIDS Council of my home state of South Australia highlighted in the executive summary of their submission to the inquiry into this bill:

GLBTI populations experience lower levels of health and wellbeing (compared to opposite-sex attracted populations) that is directly attributable to the marginalisation, institutionalised homophobia, heteronormativity and the outright discrimination that still exists in Australia.

While the AIDS Council of South Australia supported the bill, there were a number of organisations—peak representative groups and others—which opposed the bill outright or had doubts about whether it was the best way to protect people against discrimination. As a side note, I make mention of the fact that there appear to be only three submissions from my home state of South Australia. It is disappointing that other peak bodies from South Australia did not contribute. I think that, given the significance of these issues, we need to arrive at a much greater consensus in the community before passing such important legislation. It is not an easy topic of conversation for many. That is not to say that one day it will be easy or that it should not be an easy conversation to have.

But we have to remember how far this debate has come just in our lifetimes. When I was young—younger!—even discussing homosexuality was considered a taboo, let alone the discussion for anyone who was openly gay. Now, all these years later, it is much easier for people to be who they are, openly. The younger people in my life, whether they be my children, my children's friends or staff members, just do not see what all the fuss is about when it comes to people from the gay, lesbian, bisexual, transgender and intersex community. This is in no way to say that further work is not needed, and that we as a society cannot continue to be more open and more inclusive.

This legislation, in our opinion, does not progress the debate in the best way. The coalition senators—you heard from Senator Humphries and our colleague Senator Boyce; and I congratulate them on their hard work—put forward a minority dissenting report. In the report the coalition senators indicated their broad support of the bill and acknowledged that discrimination on the grounds of sexuality or sexual orientation runs counter to the essential tolerance and inclusiveness which characterises Australian society today.

They also acknowledged that there are conspicuous gaps in the present array of federal human rights legislation in dealing with the sometimes complex issues of a person's sexual identity. However, coalition senators could not support a recommendation in the report which proposed that religious organisations not be entitled to an exemption in respect of sexual orientation, gender identity and intersex status in connection with the provision of the Commonwealth funded aged care services. In the opinion of coalition senators the removal of such an exemption could compromise the capacity of some of those religious organisations to operate aged care facilities in accordance with the principles which underpin and define their existence. Those people carry out a great function in our society. Obviously, in the way in which we normalise our Australian way of life we have to expect that religious groups hold certain views and offer certain services on the basis of those views, and that you can participate or not participate in taking up those services based on the value beliefs that they hold.

Importantly, the coalition did not believe that the committee majority adequately addressed the operational concerns of some religious bodies operating faith centred services. It is hard to understand why such operational considerations would be taken into account and exempted under legislation in respect of the operational, education or health facilities but not in relation to aged care facilities, where nearly identical concerns arise.

This legislation presented an opportunity for multi-partisan reform of the laws as they affect discrimination against lesbian, gay, bisexual, transgender and intersex people. The inclusion of recommendation 1 in the majority report, however, fails to acknowledge the strong differences of views presented to the committee on the question of aged care services, and thus undermines the opportunity for a multipartisan approach.

In the minority report by coalition senators, the coalition senators' sole recommendation was as follows:

That the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 stand as presented, i.e. that it continue to provide that religious exemptions in section 37 of the Sex Discrimination Act 1984 apply in respect of sexual orientation, gender identity and intersex status in connection with the provision of Commonwealth-funded aged care services.

I strongly support the extension of the protection of anti-discrimination law on the grounds of sexual orientation, gender identify and intersex status. However, I, along with the coalition members, am not content that a bill which, in its original iteration, had our strong support, will be subject to an amendment which we cannot support in these circumstances.

I therefore urge the chamber to reject the Greens' amendments and the hastily rushed-in government amendments, and adopt the coalition amendments. I point out, in the one minute and 37 seconds to go, that there are some five speakers who are likely to be gagged from this debate. It is another example of the dysfunction that has beset this government. As I stand here it is not apparent who is going to lead the Labor Party as of the end of the week in this country, and who will be the Prime Minister. Therefore, on two occasions today I have been usurped and not allowed to be heard with regard to two pieces of legislation which I feel strongly about.

I have been gagged. We have 45 seconds to go but I know that Senator Back wanted to say something meaningful. It is very difficult to get something said in 30 seconds, so I register my protest. It is a raffle in here at the moment as to whether you get to speak. Is that democracy? No, it is not. I register my protest. I am most indignant about being cut off from all the debates which are being rushed through.

I will be indignant for a very long time. There is a very, very bad smell about this place this week, and I suggest that any perpetuation of this kind of chamber behaviour— (Time expired)

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Order! The time allotted for consideration of this bill has expired. The question is that the second reading amendment moved by Senator Wright be agreed to.

Question negatived.

The question is now that the bill be read a second time.

Question agreed to.

Bill read a second time.

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments moved to this bill.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I am now going to put the question that the amendments (1) to (5) on sheet AG264—

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

Acting Deputy President, I ask that the amendments be divided between amendments (1) to (3), amendment (4), and amendment (5).

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

All right. Then the question now is that amendments (1) to (3) on sheet AG264, as circulated by the government, be agreed to.

John Hogg (President) Share this | Link to this | Hansard source

The question now is that amendments (4) and (5) on sheet AG264 circulated by the government be agreed to.

Question agreed to.

The question now is that amendment (1) on sheet 7403 circulated by the opposition be agreed to.

Question negatived.