This last week of the Parliamentary term saw a bill quietly pass that has big implications for freedom of religion in the future.
(Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, it removes religious exemptions for Commonwealth aged-care providers to preference a married couple over an unmarried couple or a heterosexual over a homosexual resident.
Some aged care facilities run by faith organisations treasure their ethos and want to be free to preserve this.
The so-called “exemptions” in law were put their decades ago to balance society’s desire to eliminate unjustified discrimination but at the same time protect religious freedom.
Commenting on the passing of the legislation in the House of Representatives, Attorney-General Mark Dreyfus QC said “The Government is proud to have passed this historic Bill, which is an important step towards equality for all Australians, regardless of their sexuality or gender identity.”
However, the ACL questions why this legislation was pursued when no examples of actual discrimination have actually been put forward. ACL understands it’s the practice of many faith-based aged-care providers to help and look after elderly people regardless of their sexuality. It was nothing but a stalking horse to pursue this legislation and instead sets up a precedent for other religious exemptions to be challenged in the future. If Commonwealth-funded faith-based aged care providers lose the right to positively select clients in accordance with the principles of their faith, will other faith-based organisations similarly lose their religious freedom? Will Christian schools, for example, continue to be able to hire staff who adhere to the values of the organisation?
The Coalition is to be applauded for opposing the amendment which challenged the principle of religious freedom which is a fundamental human right, protected in international human rights law with the International Covenant of Civil and Political Rights (ICCPR). The principle was articulated by Shadow Shadow Attorney-General George Brandis on ABC1’s Q&A on Monday night.
ALASTAIR LAWRIE: My question is to Senator Brandis. Last Tuesday you announced that the Coalition would block any LGBIT anti-discrimination bill that did not allow religious aged-care service providers to discriminate on the basis of sexual orientation and gender identity. This is despite the fact that these agencies themselves do not believe they need this exception. You seem to be putting a theoretical religious freedom above practical protections. Why don't you believe that older lesbians, gay men, bisexuals and transgender Australians, people who have grown up when their love was criminalised, who lost friends and lovers to HIV and AIDS, have the right to grow old in dignity and respect that they deserve?
GEORGE BRANDIS: It is a very important question that you ask and let me explain what the Opposition's position is. But there was one statement in your question which wasn't quite right. You said that the religious institutions, the churches, didn't themselves want the exemption so far as concerned aged care facilities. That's not right. Some said they didn't want it. Most said they did. So don't be misled by a misleading statement by the Attorney-General. On the broader issue, when the bill, the sex discrimination bill, was introduced into the Parliament, I took a submission to the Shadow Cabinet and to our party room which was, I think without a dissenting voice, endorsed that we should support it. And the reason we support it is because it is actually the policy we took to the 2010 election, that the provisions of the Sex Discrimination Act should extend to sexuality as a protected attribute. The Government knew that they had the Opposition on board with this. In fact, the Government's measure was itself taken from the Opposition's report on the broader human rights and anti-discrimination bill, the bill that was abandoned by the Government earlier this year because it was acknowledged to have gone way too far. So we had, on this very tricky and important issue of discrimination against gay people, we had bipartisanship and unanimity. And then into the middle of this harmonious bipartisan moment, the Labor Party, out of the blue, threw in an amendment never anticipated, never expected, that would have caused the religious exemption issue to come into play. Now, if you want to build a consensus around this issue, that gay people should be protected from discrimination by the Sex Discrimination Act, then you would not have done that and the Labor Party, on all other grounds, in all other arenas, has said that it will respect the religious exemption. I am cynical about why the Labor Party did that...
TONY JONES: Okay, George.
GEORGE BRANDIS: ...knowing that by introducing the religious exemption, it would make it impossible for that bipartisanship to continue.
TONY JONES: George Brandis, the questioner has his hand up so we’ll go back to you.
ALASTAIR LAWRIE: I would just like to pick up a point you seem to be making. In Senator Humphrey's dissenting report to the sex discrimination senate inquiry, the two organisations that he quoted justifying the call for religious exception in that circumstance were the Australian Christian Lobby and the Catholic Women's League. Neither of them provide religious aged care services. So in that circumstance, why are we trying to impose a religious exception to the detriment of older LGBT people for those groups that don't actually run those services?
GEORGE BRANDIS: Well, I’m very familiar with that minority report because I was one of the signatories to it and I had a lot to do with drafting it. There were many more submissions to the inquiry from other churches and religious institutions than those two. So don't infer that because those two were mentioned as a 'For example', those were the only ones, because they weren't.
TONY JONES: Okay. George, I would like the hear other people on this subject. Anne Summers?
ANN SUMMERS: Well, I’m afraid I don't know much about the legislation. I mean I just obviously would support the principle that LGBT people should be able to go to retirement homes and nursing homes free from any form of discrimination, which I take to be the central point and I know that, you know, one of the problems with homes that are run by some religions is they have been discriminatory in the past and I imagine what we are trying to avoid is the continuation of that discrimination and I would support that.
TONY JONES: Yeah, very briefly, George, before I go back to the other panelists, shouldn't anti-discrimination be universal?
GEORGE BRANDIS: No.
TONY JONES: Why shouldn’t it?
GEORGE BRANDIS: Anti-discrimination laws should not be universal because the right to fair treatment is one of several very important but sometimes inconsistent values. The right of people who practice or profess a particular religious faith to live their lives and to conduct their institutions in accordance with the precepts of their religious faith is integral to religious freedom and religious freedom is also a fundamentally important value.
TONY JONES: So religious...
GEORGE BRANDIS: And if I may say...
TONY JONES: But just on principle, you are saying that religious freedom supersedes the freedom of your sexuality?
GEORGE BRANDIS: Yes, I am, as a matter of fact. Yes, I am. But I am also making a political point. There are - we in the Liberal Party have joined with people in the Labor Party to progress this agenda for years and those who wanted to see the Sex Discrimination Act extend to protect people on the grounds of their sexuality were furious that the Labor Party decided to throw in a curve ball into the debate that deprived the country of the opportunity for unanimity on this.