Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SEX DISCRIMINATION AMENDMENT (SEXUAL ORIENTATION, GENDER
IDENTITY AND INTERSEX STATUS) BILL 2013
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus QC MP
SEX DISCRIMINATION AMENDMENT (SEXUAL ORIENTATION, GENDER
IDENTITY AND INTERSEX STATUS) BILL 2013
Amendments to be Moved on Behalf of the Government
GENERAL OUTLINE
1. The amendments address two issues raised in submissions to the Senate Legal and
Constitutional Affairs Committee's inquiry into the Sex Discrimination Amendment (Sexual
Orientation, Gender Identity and Intersex Status) Bill 2013 (the Bill).
2. The first set of amendments insert a qualification on the religious exemptions for the
provision of Commonwealth-funded aged care services.
3. The second set of amendments update terminology in other Commonwealth Acts
from `sexual preference' to `sexual orientation'.
FINANCIAL IMPACT STATEMENT
4. The amendments have no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex
Status) Bill 2013
Amendments to be Moved on Behalf of the Government
The Amendments are compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Amendments
The first set of Amendments insert a qualification on the religious exemptions provided in the
Sex Discrimination Act 1984 (SDA) for the provision of Commonwealth-funded aged care
services.
The second set of Amendments update terminology in other Commonwealth Acts from
`sexual preference' to `sexual orientation'.
Human rights implications
By qualifying the religious exemptions for the provision of Commonwealth-funded aged care
services, the first set of Amendments primarily engage:
the right to equality and non-discrimination in articles 2 and 26 of the International
Covenant on Civil and Political Rights (ICCPR) and article 2(2) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
the right to freedom of thought, conscience and religion or belief in article 18(1) of
the ICCPR, and
the right to health in article 12(1) of the ICESCR.
The second set of Amendments are minor amendments to update terminology and do not
engage human rights.
Rights to equality and non-discrimination
The rights to equality and non-discrimination provide that all persons are equal before the law
and entitled, without any discrimination, to the equal protection of the law. As a result, laws
shall prohibit discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or `other status'.
In particular, articles 26 of the ICCPR is a `free standing' bar on discrimination, prohibiting
discrimination in law or in practice in any field regulated by public authorities. The list of
grounds in article 26 is not exhaustive and decisions by the United Nations Human Rights
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Committee suggest that a clearly definable group of people linked by their common status is
likely to fall within `other status'. `Other status' has been found by the Committee to include
age, sexual orientation and marital status.
The religious exemption in paragraph 37(d) provides that acts or practices of religious bodies
that conform to the doctrines, tenets or beliefs of that religion or are necessary to avoid injury
to the religious susceptibilities of adherents to that religion are exempt from the operation of
the prohibition of discrimination provisions of the SDA.
The first set of Amendments inserts a qualification to this exemption so that the provision of
Commonwealth-funded aged care services run by religious organisations will no longer be
exempt from the prohibition of discrimination. The Amendments will only apply in the
context of service provision. That is, an aged-care provider can still make employment
decisions which conform to the doctrines or tenets of the religion or are necessary to avoid
injury to religious sensitivities of adherents of that religion.
The inclusion of this qualification will protect against discrimination in the provision of aged
care services and therefore promote the rights to equality and non-discrimination.
Right to health
Article 12(1) of the ICESCR recognises the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health. The right to health includes aged care
services.
The entitlements under the right to health include the right to a system of health protection
which provides equality of opportunity. By prohibiting discrimination in the provision of
Commonwealth-funded-aged care services, the Amendments will promote equal access to the
right to health.
Right to freedom of thought, conscience and religion or belief
Article 18(1) of the ICCPR provides:
Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom either individual or in a community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.
These freedoms are expressly recognised in the exemption in section 37 of the SDA. The
exemption applies to all grounds protected in the SDA, which encompass the new grounds
introduced in the Bill.
Article 18 is not an absolute right and consequently may be subjected to permissible
limitations. Those limitations must be provided by law, pursue a legitimate objective and be
necessary and proportionate to achieving that objective.
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The Amendments will qualify the exemption in paragraph 37(d) so that it does not apply in
the provision of Commonwealth-funded aged care services. The Amendments pursue the
legitimate objective of ensuring the ability of older people to access aged care services
without discrimination.
The Amendments are necessary as there was significant feedback during the development of
the Human Rights and Anti-Discrimination Bill 2012 of the discrimination faced by older
same-sex couples in accessing aged care services run by religious organisations, particularly
when seeking to be recognised as a couple.
The Government considers the Amendments are proportionate as the qualification is limited
to the provision of aged care services and does not extend to employment decisions by
religious organisations.
While the exemption recognises rights may be limited by other rights, with the right to
equality and non-discrimination limited by the right to freedom of religion, the Government
does not consider that discrimination in the provision of Commonwealth-funded aged care
services is appropriate.
Conclusion
The Amendments are compatible with human rights because they advance the protection of
human rights, particularly the rights to equality and non-discrimination and the right to health
and to the extent that they limit the right to freedom of thought, conscience and religion or
beliefs, those limitations are reasonable, necessary and proportionate to promoting other
rights.
The Hon Mark Dreyfus QC MP
Attorney-General
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NOTES ON CLAUSES
Amendment (1) - new item 3A
1. This amendment inserts a definition of `Commonwealth-funded aged care' into
section 4 of the Sex Discrimination Act 1984 (SDA), for the purposes of the inclusion of a
qualification on religious exemptions for the provision of Commonwealth-funded aged care
services to be inserted by amendments 2 and 3.
2. The definition is the same as included in Exposure Draft Human Rights and Anti-
Discrimination Bill 2012 (HRAD Bill). It is defined as one of three matters:
The first is `aged care', within the meaning of the Aged Care Act 1997, that is
provided by an approved provider (that is, a provider approved under that Act) and in
relation to which the provider has responsibilities under that Act (paragraph (a) of the
definition). `Aged care' under the Aged Care Act refers to residential, community or
flexible care, the three primary types of care which the Commonwealth funds. The
reference to `responsibilities under that Act' utilises the concept under, for example,
subsection 54-1(2) of that Act, which provides that a provider has responsibilities to a
person if either:
- the Commonwealth has paid subsidy under the Aged Care Act for the provision
of the care to the person, or
- the provider is approved to provide that type of care, and the person is approved
to receive the care.
This ensures that any organisation which receives funding to provide aged care
services generally is not able to discriminate in the provision of those services, even if
Commonwealth funding is not available in relation to a specific individual.
There are two reasons why such funding might not be provided. First, if a couple
enters care where one partner is in need of a high level of care, but the other partner
has no such need but wishes to continue living with his or her partner. In that case,
the funding will be provided for the high needs partner but not the other partner, but
this provision will ensure neither partner can be discriminated against.
The second situation is that a facility may have been built to accommodate 120 people
but only receives Commonwealth funding for 90 people. The operator of the facility
can still be approved to provide services to 30 additional people, but without receiving
funding for those people. Once again, this clause will ensure people receiving those
services cannot be the subject of discrimination.
The second component of the definition of `Commonwealth-funded aged care'
(paragraph (b) of the definition) is any care or service in relation to which a grant has
been paid under the Aged Care Act. Chapter 5 of that Act sets out the grants that are
payable as follows:
- residential care grants (see Part 5.1)
- community care grants (see Part 5.2)
- flexible care grants (see Part 5.2A)
- assessment grants (see Part 5.3)
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- accreditation grants (see Part 5.4)
- advocacy grants (see Part 5.5)
- community visitors grants (see Part 5.6), and
- other grants (see Part 5.7).
Care or services provided under any of these grants, all of which are connected to the
aged care system (for example, advocacy grants can be paid to `encourage
understanding of, and knowledge about, the rights of recipients and potential
recipients of aged care services' (section 81-1 of the Aged Care Act)), cannot be
provided in a discriminatory manner, whether provided by a religious organisation or
not.
The final component of the definition (paragraph (c) of the definition) enables the
regulations to prescribe other care or services. This provides flexibility in the system,
recognising the range of aged care services which are Commonwealth-funded,
including that not all programs are established under statute. Any care or service
prescribed for the purpose of this paragraph must be related to the provision of aged
care and must be provided with Commonwealth funding.
Amendment (2) - New item 39A
3. This amendment inserts a qualification on the exemption from discrimination for the
provision of accommodation by a religious organisation in paragraph 23(3)(b) of the SDA,
with the effect that the exemption will not apply to the provision of Commonwealth-funded
aged care services.
4. This is consistent with the policy underpinning the qualification on the general
exemption for religious organisations, to be inserted by Amendment (3).
Amendment (3) - New items 49A and 49B
5. This amendment inserts the main qualification on the general exemption for religious
organisations for the provision of Commonwealth-funded aged care services. It inserts a new
subsection 37(2) to provide that current paragraph 37(d) of the SDA (to be renumbered as
paragraph 37(1)(d) by new item 49A) does not apply to conduct connected with the provision
of Commonwealth-funded aged care services.
6. The qualification was included in the HRAD Bill as there was significant feedback
during the development of the HRAD Bill of the discrimination faced by older same-sex
couples in accessing aged care services run by religious organisations, particularly when
seeking to be recognised as a couple. When such services are provided with Commonwealth
funding, the Government does not consider that discrimination in the provision of those
services is appropriate. This applies regardless of whether the Commonwealth is the sole or
even dominant funder of these services (that is, this applies even if the services are provided
with a combination of Commonwealth and other resources). This position is also consistent
with the Government's broader aged care reforms.
7. This qualification was not included in this Bill at the time of introduction as the
Government was in the process of examining the Senate Legal and Constitutional Affairs
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Committee's inquiry report on the HRAD Bill. While this examination is still underway, the
Government considers that the aged-care qualification should be included in this Bill as a
matter of priority.
8. Proposed new paragraph 37(2)(b) makes it clear that this qualification only applies in
the context of service provision. That is, an aged-care provider can still make employment
decisions which conform to the doctrines or tenets of the religion or are necessary to avoid
injury to religious sensitivities of adherents of that religion. This recognises that
organisations should be able to engage staff who share their values and organisational ethos.
9. The qualification does not impose any new obligations on aged care providers--only
those religious organisations which had previously chosen to discriminate will be affected.
Equally, this simply ensures that religious providers of aged care services are in the same
situation as non-religious providers of the same services, who have always been prohibited
from discrimination by anti-discrimination legislation.
Amendments (4) and (5) - New Division 2 of Part 2 of Schedule 1
10. New Division 2 of Part 2 of Schedule 1 will amend the Broadcasting Services Act
1992, the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009 to
replace references to `sexual preference' with `sexual orientation'.
11. The Bill uses the term `sexual orientation'. This is the preferred and updated term as
it is generally accepted as a broad and inclusive term whereas `sexual preference' focuses on
choice.
12. This Division will amend all references to `sexual preference' in Commonwealth
legislation to the preferred term `sexual orientation' to ensure consistent terminology across
the Acts.
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