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Religious exemptions from the Sex Discrimination laws

Speeches in Parliament
Penny Wright 17 Jun 2013

Senator WRIGHT (South Australia) (20:15): 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.

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