MINORITY REPORT
BY COALITION SENATORS
1.1
Coalition senators are broadly supportive of the provisions of the
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and
Intersex Status) Bill 2013. They acknowledge that discrimination on the grounds
of sexuality or sexual orientation runs counter to the essential tolerance and
inclusiveness which characterise Australian society today. They also
acknowledge that there are conspicuous gaps in the present array of federal
human rights legislation in dealing with the sometimes complex issue of a
person's sexual identity. Broadly speaking, the present bill addresses those
gaps.
1.2
However, Coalition senators cannot support the committee majority's
Recommendation 1 in the report. Recommendation 1 proposes 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
Commonwealth‑funded aged care services. In the opinion of Coalition
senators, the removal of such an exemption could compromise the capacity of
some religious organisations to operate aged care facilities in accordance with
the principles which underpin and define their existence.
1.3
It is acknowledged that Commonwealth-funded religious organisations
presently providing aged care took a variety of positions during this inquiry
on the suitability of this exemption, and that some such organisations felt no
need for the protection such an exemption might afford them. Equally, other
religious organisations argue for the maintenance of this exemption in order to
preserve the ethos and values of their faith systems.
1.4
The Australian Christian Lobby argued for the exemption in these terms:
[R]eligious organisations do not seek to discriminate by
exercising their freedom of religion. Rather they seek to employ staff most
able to contribute to the religious ethos of the organisation, or to act
consistently with their aims as an organisation and with their beliefs as an
individual.[1]
1.5
The Catholic Women's League Australia points out that:
In seeking to protect a range of human rights, it is
essential that anti-discrimination laws also respect and protect the fundamental
right to manifest one's religion, beliefs and conscientious convictions in the
public square.[2]
1.6
They go on to quote Catholic Health Australia as follows:
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.[3]
1.7
Coalition senators do not believe the committee majority has adequately
addressed the operational concerns of some religious bodies operating
faith-centred services. Further, it is hard to understand why such operational
considerations would be taken into account and exempted under legislation in
respect of the operation of educational or health facilities, but not in
relation to aged care facilities, where nearly identical concerns arise.
1.8
This legislation presents an opportunity for multipartisan 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 view presented to the
committee on the question of aged care services, and thus undermines the
opportunity for a multipartisan approach.
1.9
Accordingly, Coalition senators recommend as follows:
Recommendation
1.10
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.
Senator Gary
Humphries
Deputy Chair
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