Submitters to the inquiry raised various issues in relation to the scope
and proposed operation of the discrimination protections included in the Bill.
In particular, the exemptions from discrimination protection maintained or
introduced by the Bill received much attention.
Support for the Bill
Many submitters expressed support for the Bill and its objective of
introducing anti-discrimination protections for the lesbian, gay, bisexual,
transgender and intersex (LGBTI) community in Australia.
The Victorian Gay and Lesbian Rights Lobby stated that the Bill 'represents a
significant advance for the LGBTI community and brings Australia closer to
fulfilling its international human rights obligations in relation to the human
rights of LGBTI people'.
The National Association of Community Legal Centres commended the Bill as 'an
imperative preliminary measure to address the significant gap in protection for
[LGBTI] people from discrimination'.
Key definitions in the Bill
Submitters offered strong support for the formulation of the key
definitions of 'sexual orientation', 'gender identity' and 'intersex status'
used in the Bill.
The Australian Human Rights Commission (AHRC) noted that these definitions
'are best practice in Australia and are consistent with the most recently
considered proposed discrimination legislation'.
In relation to the definition of 'gender identity', the NSW Gay and
Lesbian Rights Lobby stated that this definition will ensure that the 'full
spectrum' of peoples' gender identities can be respected.
Regarding the definition of 'intersex status', Organisation Intersex
International Australia (OII Australia) commented:
[T]he Bill will introduce a new ground of discrimination on
the basis of intersex status, recognising that intersex is a biological
characteristic. We agree that this is the correct approach to recognising
intersex. The approach positions intersex as distinct from gender identity, as
intersex is an innate biological phenomenon. It also positions intersex as
distinct from sex, as intersex is not an arbitrary third sex.
Definition of unlawful
discrimination for the proposed new grounds
Some submitters provided commentary on the way discrimination is defined
for the proposed new grounds in the Bill. Submitters put forward a variety of
suggested changes in relation to the way unlawful discrimination is defined,
including suggestions to:
- remove the 'comparator test' in the definitions of direct
discrimination for the new protected grounds in the Bill;
- include discrimination protection for someone who associates with
a person covered by a protected ground;
include discrimination protection for people who previously possessed
a protected attribute or are incorrectly assumed to possess a protected
- extend the application of protection on the basis of 'family
responsibilities' to indirect discrimination, and broaden the definition of
this term to include caring responsibilities.
The Explanatory Memorandum to the Bill notes that the definitions
contained in the Bill are modelled on existing section 6 of the SDA.
In relation to the 'comparator test', the Department explained further:
The purpose of this Bill is to fulfil the Government's
election commitment to introduce protections on the basis of sexual
orientation, gender identity and intersex status. It is not a general reform of
the SDA or anti‑discrimination law more broadly.
Accordingly, this Bill does not include any broader policy
changes beyond introducing the new grounds of protection...Broader reforms to
discrimination law, including changes to the 'comparator test', are more
appropriately implemented through the [consolidated Human Rights and Anti‑Discrimination]
Bill, to ensure they apply to the entirety of Commonwealth anti‑discrimination
The Department gave similar explanations in relation to the introduction
of protection against 'associate discrimination', and the possibility of
broadening coverage of protection on the basis of family responsibilities.
Submitters commented extensively on how various exemptions in the SDA would
apply to the new protected grounds of sexual orientation, gender identity and
intersex status included in the Bill. Submitters also discussed the two new
exemptions to be introduced into the SDA by the Bill.
Exemptions for religious
Submitters to the inquiry put forward a range of views regarding the proposed
amendments to the current religious exemptions in the SDA. Some submitters
argued that the current exemptions for religious organisations in the SDA
should not apply at all in relation to the new protected grounds to be
introduced by the Bill, or should be significantly narrowed in respect of the
new protected grounds.
For example, the Castan Centre for Human Rights Law argued:
[T]he Government is directly supporting practices which it
admits would be discriminatory but for exceptions, such as that in [section] 38
of the SDA. This goes beyond 'striking a balance' between the right to freedom
of religion and freedom from discrimination. It is unacceptable in a secular
society governed on the basis of respect for human rights.
These submitters proposed several possible amendments designed to narrow
the religious exemptions in sections 37-38 of the SDA, or increase transparency
in the operation of those exemptions.
Other submitters expressed support for the retention of exemptions for
religious organisations, or proposed changes to further strengthen religious
exemptions in the SDA.
Treatment of intersex status in the
As noted in Chapter 1, the general exemption for religious organisations
in section 37 of the SDA will apply to each of the new protected grounds to be introduced
by the Bill, while the exemptions for religious educational institutions in
section 38 of the SDA will apply to the grounds of sexual orientation and
gender identity, but not intersex status.
Several submitters expressed support for the exclusion of 'intersex
status' from the exemptions for religious educational institutions in section
38 of the SDA.
Some argued, however, that the broader religious exemption in paragraph
37(d) should also not apply to 'intersex status'. For example, the AHRC observed:
The omission of intersex status from the exemption in [section]
38 is welcomed and contributes towards a better balancing of the rights of
non-discrimination and freedom of religion.
However, the application of [paragraph] 37(d) to intersex
status is contrary to this. [Paragraph] 37(d) provides a broad exemption for
religious bodies and arguably encompasses any act referred to in [section] 38.
If intersex is not excluded from the operation of [paragraph] 37(d) then the
policy intent of the Government will potentially be undermined.
The Department responded to this argument, as follows:
The general exception in paragraph 37(d) only applies to
conduct which 'conforms to the doctrines, tenets or beliefs of that religion or
is necessary to avoid injury to the religious susceptibilities of adherents of
that religion'. It is, by its terms, limited in application to attributes to
which there are doctrinal reasons or religious susceptibilities justifying the
conduct... [T]he Government has not been informed of any religious doctrines
which require discrimination on the ground of intersex status, which would have
the effect that the exemption, in practical terms, would not excuse otherwise
Exemptions for religious aged care
As noted in Chapter 1, recently announced proposed government amendments
to the Bill would introduce a limitation on the religious exemption in section
37 of the SDA in respect of the provision of Commonwealth-funded aged care
services, a measure that was previously included in the Exposure Draft of the Human
Rights and Anti‑Discrimination Bill 2012 (Exposure Draft).
Prior to the announcement of the proposed government amendments, some
submitters argued for the inclusion of this limitation in the Bill, in order to
provide protection for LGBTI individuals receiving aged care services.
For example, COTA Australia contended:
Older LGBTI people have suffered a lifetime of social and
legal discrimination. Many LGBTI people of senior age have lived for most of
their life with homosexuality being illegal, with social norms ostracizing
LGBTI people, and with physical and verbal abuse much more common occurrences
compared with today. It is therefore appropriate that the Government introduces
these protections with a careful consideration of the proposed impact on older
cohorts of LGBTI Australians...COTA's very strong preference is that the
legislation does not allow religious organisations to be able to claim
justification for discrimination against people because of sexual orientation,
gender identity or intersex status.
Some submitters also noted public statements from several major faith-based
aged care providers, clarifying that those organisations do not currently discriminate
on the basis of sexual orientation, gender identity or intersex status in the
provision of aged care services.
Conversely, several religious groups that submitted to the inquiry argued
that aged care providers should be able to offer services in accordance with
their religious values, and that the exemptions for religious aged care
providers should be maintained.
Exemption for competitive sport
A number of submitters raised concerns about the extension of the
current exemption in the SDA relating to competitive sport to the new protected
grounds of gender identity and intersex status provided for in the Bill. This
exemption would make it lawful to exclude intersex or transgender people from
competitive sporting activities where the strength, stamina or physique of
competitors is relevant.
The Anti-Discrimination Board of NSW argued that intersex people should
not be included in this exemption:
[T]he effect of the exemption is too broad, and applies
indiscriminately to all intersex people, whether or not their particular
intersex variation is capable of affecting sporting performance...[T]here are
many different variations in intersex, which may include physical, chromosomal
and/or hormonal differences. Clearly, some of these, such as unusually high
levels of testosterone or muscle mass, may affect sporting performance. Other
attributes, such as physical variations in reproductive organs, may have no
such effect. Yet the proposed exemption would allow the exclusion of any
individual known to be intersex from competitive sport.
Transgender Victoria also contended that the exemption is too broad in
its application, arguing that transgender individuals may not necessarily carry
a competitive advantage in sporting competitions. Transgender Victoria
suggested that the exemption should allow for assessment of athletes on a
OII Australia argued that the SDA should allow intersex people to
compete according to their legal sex:
A blanket exemption applying to intersex people is
disproportionate, and might broadly limit our access to sporting activities,
with adverse consequences for our health and well-being.
Intersex people at all levels of sporting activity should be
encouraged through access to sporting activities. Exemptions should not be used
to justify excluding intersex people from sporting activities...It is far more
appropriate to enable people to compete on the basis of their legal sex. An
exemption on grounds of intersex status or gender identity is not needed to
OII Australia noted that excluding competitors on the basis of intersex
status or gender identity is inconsistent with frameworks developed by the
International Olympic Committee (IOC) and the International Association of
Athletic Federations (IAAF) for the participation of transgender and intersex
people in competitive sport. These frameworks are not based on strength,
stamina or physique, but are currently determined by the testosterone levels of
The Department clarified that sporting organisers will still have the
ability to assess individuals on a case-by-case basis when deciding the
eligibility of competitors:
The Bill amends the existing exemption for competitive sport
in the SDA to include gender identity and intersex status. The Government
considers this is necessary to preserve existing policy in relation to this
exemption, ensuring fair competition in competitive sporting events. The
drafting mirrors the approach taken in...the [Exposure Draft] Bill and State and
Territory anti-discrimination laws.
The Department understands the operation of the exemption in
State and Territory law will often involve a case-by-case assessment of
individual circumstances. That is, the exemption is not intended to operate to
require sporting competitions to have policies which automatically exclude
people who are intersex, or people with a gender identity which does not match
their birth sex. Instead, it is to provide reassurance that organisers are able
to make decisions to guarantee fair competition in sporting events.
Exemption for data collection
The exemption allowing individuals and organisations to request
information, or make or keep records, in a way that does not allow for a person
to be identified as being neither male nor female, attracted some commentary
It was noted that the government has recently released guidelines on the
recognition of sex and gender in Commonwealth records, which allow for the
identification of individuals as neither male nor female. These guidelines,
entitled 'Australian Government Guidelines on the Recognition of Sex and
Gender', will be fully implemented for Commonwealth agencies by July 2016.
Several submitters argued that the exemption in the Bill should be subject to
some form of time limitation, either in the form of a sunset clause or through a
statutory requirement for the exemption to be reviewed within three years.
The Public Interest Advocacy Centre also argued that the Australian
Government, through the AHRC or the Office of the Australian Information
Commissioner, should assist organisations in updating practices for data
collection and record keeping, allowing over time for the identification of individuals
as being neither male nor female.
In relation to including a sunset clause on the exemption for data
collection, including one to coincide with the implementation of the proposed
Australian Government Guidelines on the Recognition of Sex and Gender, the
The inclusion of a sunset clause on the exemption would have
the effect of requiring...changes to be made [to data collection practices],
while providing a grace period in which to do so. The Government has not yet
assessed any potential regulatory impact of such a change, even with a grace
period. Accordingly, it has made a policy decision to include the exemption to
ensure that the Bill does not have this effect...
only [apply] to Commonwealth Government agencies, not State or Territory
agencies or the private sector, and do not include an enforceable complaints
mechanism if the...Guidelines are not complied with. Including a sunset clause in
the Bill could have a significantly greater regulatory impact.
Regarding a statutory review period for this exemption, the Department
The need for this exemption could be reconsidered in the
future...It is not clear when the best time to reconsider this exemption would
be. Requiring a statutory review at a particular time may lead to this
exemption being reconsidered prematurely, without the benefit of the
Government's experiences in relation to the...Australian Government Guidelines on
Sex and Gender.
Exemptions for conduct in direct
compliance with prescribed laws
Some submitters expressed concern at the proposed new exemption for acts
done in direct compliance with a Commonwealth, or a state or territory law
prescribed by regulations. For example, the Human Rights Law Centre recommended
that this exemption be removed:
[T]his provision...does not require any consideration of
whether the relevant discriminatory provisions in inconsistent laws are
reasonable and justified in accordance with Australia's international human
rights obligations. If there are inconsistent laws that are proposed to be
exempted, it is more appropriate that this be done by legislative amendment and
consequent parliamentary scrutiny, rather than by regulation.
The Law Council questioned why such an exemption is necessary in
relation to the new protected grounds of sexual orientation, gender identity
and intersex status, when no similar exemption currently exists for the other
protected grounds in the SDA.
The Department explained the reasons for the inclusion of this exemption
Any laws to utilise this exemption will be prescribed by
regulation and will therefore be subject to Parliamentary scrutiny, including
the requirement for a Statement of Compatibility in accordance with the Human
Rights (Parliamentary Scrutiny) Act 2011.
The Government considers this approach strikes the right
balance between the flexibility to protect the operation of laws which
appropriately make distinctions on these grounds, or which might be matters
which are the responsibility of the States and Territories, and accountability
to the Commonwealth Parliament.
In relation to why this exemption will not cover the other protected
grounds currently in the SDA, the Department commented:
This Bill does not include any broader policy changes beyond
introducing the new grounds of protection and therefore does not include a
similar exemption for the existing protected grounds in the SDA.
Operation of exemptions for
single-sex clubs and educational institutions
Items 36 and 42 of Schedule 1 of the Bill would replace the phrase
'opposite sex' with 'different sex', in relation to exemptions for
single-sex educational institutions and clubs. Some submitters contended that
this wording would mean that people who are intersex could be legitimately
excluded from admission to such an institution or club, and that, similarly,
people could be excluded on the basis of their gender identity.
The Department explained how this exemption is intended to operate:
These amendments are not intended to exclude intersex people
from protections under the Bill. The intention of the exemptions in subsections 21(3)
and 25(3) is that educational institutions or clubs established for people of a
particular sex can lawfully exclude people who are not of that sex. This may
include people who are intersex and do not identify as the relevant sex or
identify as neither sex.
However, exclusion of an intersex child who identifies as
male from a boys school could constitute intersex status discrimination. Similarly,
exclusion of a trans woman from a female only club could constitute gender
identity discrimination. The Department considers the current drafting will
achieve this intention.
Submitters raised several other issues in relation to the Bill and its
implementation, including: recognition in the SDA for international
instruments relating to LGBTI issues; the interaction between the Bill and
state and territory laws; possible consequential amendments to other
Commonwealth Acts; and broader reforms to the SDA.
recognised in the Sex Discrimination Act
Paragraph 3(a) of the SDA provides that one of the objects of the SDA is
to give effect to provisions of 'relevant international instruments'. These
instruments are listed in subsection 4(1).
Several submitters called for the Bill to recognise international
instruments relevant to the rights of LGBTI people, either through their
inclusion in the list of 'relevant international instruments' in subsection
4(1) of the SDA, or through recognition in the Explanatory Memorandum to the
More specifically, submitters called for the 'Yogyakarta Principles' to be
referenced. For example, the Human Rights Law Centre argued:
The Yogyakarta Principles, developed by a group of academic
and UN human rights experts in 2006, provide important guidance on the
application of international human rights obligations to sexual orientation and
gender identity. The principles reflect the existing state of international
human rights law in relation to issues of sexual orientation and gender identity
and 'affirm binding international legal standards with which all States must
comply.' The Yogyakarta Principles have been referred to in Australian
jurisprudence...[T]hey develop inclusive, internationally accepted definitions of
sexual orientation and gender identity and establish recommended actions to
address the ongoing challenge of achieving human rights protection for [LGBTI]
The Department noted that the treaties currently listed in subsection 4(1)
of the SDA are United Nations and International Labour Organization treaties
which impose legal obligations on Australia; however:
...[T]he Yogyakarta Principles have no legal force either
internationally or within Australia. They were developed by a group of human
rights experts, rather than being an agreement between States.
Resourcing of the AHRC
The AHRC submitted that it may require additional resources in order to
deal with the additional workload it expects to carry as a result of the
introduction of the Bill:
The proposed new grounds in the SDA will almost certainly
lead to new, and a higher volume of, enquiries and complaints. In addition, the
[AHRC]'s other functions in relation to research, education and awareness
raising will also be enlivened by the inclusion of these new attributes. There
will also be a higher expectation from the community that the [AHRC] will seek
to proactively address systemic issues facing LGBTI communities, as opposed to
purely relying upon its complaints processes to remedy situations of
discrimination and breaches of human rights. Consideration should be given to
the resourcing impact of these new provisions. To more effectively perform
these functions the [AHRC] would be aided by appropriate additional resources.
Several other submitters went further, arguing for the appointment of a
permanent Commissioner within the AHRC to deal specifically with LGBTI issues.
For example, the NSW Gay and Lesbian Rights Lobby argued:
[S]ignificant issues of homophobia, bi-phobia, transphobia and
anti‑intersex prejudice exist in Australian society and would be usefully
served by having a dedicated [C]ommissioner to deal with complaints on these
grounds. A specific...Commissioner would also enable the AHRC to more effectively
discharge its education and compliance-related roles and reduce the workload of
existing Commissioners...[I]t would send a strong message to the broader
Australian community of the importance of non-discrimination concerning sexual
orientation or gender identity.
The Department commented on the issue of resourcing for the AHRC:
The [AHRC] already performs some advocacy work in relation to
these new grounds, through its general human rights functions. The Government
believes that in the current fiscal climate, it is appropriate that the [AHRC]
absorb these new responsibilities within current resources.
The [AHRC] was provided with additional funding under
Australia's Human Rights Framework, which included funding associated with
reforms to anti-discrimination law.
In relation to the proposal for a specific Commissioner to deal with
LGBTI issues, the Department responded:
The Bill does not establish a new Commissioner for the new
protected attributes of sexual orientation, gender identity or intersex status.
This Bill does not include a Budget proposal for any new resources for a new
The Bill provides the [AHRC] with functions relating to the
new attributes. As with all of its responsibilities, how it apportions
responsibility for these functions is a matter for the [AHRC]...The Government
does not propose to interfere with the [AHRC]'s independence in this regard by
requiring a particular Commissioner, whether the President or anyone else, to
take responsibility for sexual orientation, gender identity and intersex status
Interaction with state and
Submissions from state and territory bodies raised issues relating to
the interaction between the Bill and state and territory laws.
The New South Wales Government expressed concern that certain conduct in
relation to the new protected grounds to be introduced by the Bill, which is
lawful in New South Wales under exemptions in the Anti-Discrimination Act
1977 (NSW), will not be lawful under the new exemptions in the SDA proposed
by the Bill.
It recommended that the Bill be amended to provide an exemption for
'action that is not unlawful under any anti‑discrimination law in force
in the place where the action is taken'.
Conversely, the Anti-Discrimination Commissioner of Tasmania
expressed concern that activity which is currently unlawful under the Anti‑Discrimination Act 1998
(Tas), would be lawful under the proposed new exemptions in the SDA, creating
broader exemptions in Commonwealth law which effectively override Tasmanian law.
The Commissioner recommended that the Bill 'clearly state that any broader
exemptions in the legislation are not intended to interfere with protections
against discrimination under state or territory anti-discrimination laws'.
The Department provided the following observations in relation to the
interaction between exemptions in the SDA and state and territory
There are already inconsistencies between the exemptions in
existing Commonwealth, State and Territory anti-discrimination laws. This Bill
does not alter this position. There is no evidence that such inconsistencies
prohibit these anti-discrimination laws from operating concurrently,
particularly given the Commonwealth Acts explicitly preserve such concurrent
The effect of inconsistent exemptions is that conduct which
is covered by an exemption under one law but not the other law would not be
unlawful under the former law but would be under the latter. This means a
person could not sustain a complaint under the former law, but may be able to
under the latter law. The same principle applies whether it is the Commonwealth
or State law which has the narrower exemption.
Consequential amendments to other
Submitters expressed support for the suggestion, now incorporated in the
government's proposed amendments to the Bill, which would update terminology in
other Commonwealth laws, including the Fair Work Act 2009 (Fair Work
Act), to replace references to 'sexual preference' with
These submitters recommended that 'gender identity' and 'intersex status'
should also be included in the list of attributes covered in section 351 of the
Fair Work Act.
Some submitters recommended that the term 'marital status' should
also be updated to 'marital or relationship status' throughout the Fair Work
In addition, the Law Council recommended that the terms 'sexual preference' and
'marital status' in the Australian Human Rights Commission Regulations 1989
also be updated to reflect the terminology used in the Bill.
In relation to changes in the Fair Work Act other than updating
'sexual preference' to 'sexual orientation', the Department stated:
While the Government is considering whether achieving
consistency of terminology is achievable as part of this Bill, any broader
amendments for consistency between anti-discrimination law and the Fair Work
Act are outside the scope of this Bill and more appropriately considered in conjunction
with the broader [Human Rights and Anti‑Discrimination] Bill.
The committee welcomes the introduction of legislative protection
against discrimination for individuals on the basis of sexual orientation,
gender identity and intersex status through the Bill. This is the first time
such protection has been afforded at a Commonwealth level, and the committee
considers that this is an historic reform that is long overdue. Accordingly,
the committee expresses its strong support for this legislation.
The committee recently considered a broad range of issues relating to anti‑discrimination
protection for LGBTI individuals, as part of its inquiry into the Exposure
Draft of the Human Rights and Anti-Discrimination Bill 2012 (Exposure Draft).
The committee notes that many submitters to the current inquiry expressed
disappointment at the government's decision not to proceed immediately with the
finalised form of the legislation to consolidate the Commonwealth's five existing
Acts that deal with anti‑discrimination matters.
The committee remains of the view that a single consolidated anti‑discrimination
Act is preferable to the current regime of Commonwealth anti‑discrimination
laws, which are inconsistent and in need of simplification and clarification.
The committee notes the government's commitment to this broader consolidation
project, and accepts that the Bill under consideration in this inquiry is
designed to introduce discrimination protection for LGBTI Australians as a
matter of high priority, while work on the broader consolidation project
Turning to the Bill at hand, the committee has comments in relation to
the key definitions used in the Bill, the exemptions introduced or broadened in
the Bill, and some of the other issues raised by submitters to the inquiry.
In its report on the Exposure Draft, the committee made two
recommendations in relation to the proposed definition of 'gender identity'.
The committee is pleased that these recommendations, including introducing
'intersex status' as a standalone protected ground, have been incorporated into
the Bill. The committee notes the strong support from submitters for the
key definitions of 'sexual orientation', 'gender identity' and 'intersex
status' in the Bill.
Some submitters to the inquiry commented that the definition of
discrimination introduced for the new protected grounds in the Bill is
out-dated and should be improved, including by removing the 'comparator test'.
The committee has consistently recognised the need to remove the comparator
test from the SDA;
however, the committee also recognises that it is important for the definitions
incorporated in the Bill for the new protected grounds to be consistent with
the existing definitions for the other protected grounds in the SDA. For this
reason, the committee accepts the Department's rationale that the Bill will
introduce protections for the new protected grounds on the same terms as the
other protected grounds in the SDA, and welcomes the fact that further
changes will be made as part of the broader project to consolidate the
Commonwealth's anti‑discrimination laws.
In its recent report into the Exposure Draft the committee recommended
that religious organisations should not be allowed to discriminate against
individuals in the provision of services, where that discrimination would
otherwise be unlawful. The committee also recommended that religious
organisations seeking to rely on exemptions in providing services should be
required to provide public notice of that intention.
The committee has not changed its view that this is the optimal arrangement for
the operation of religious exemptions in Commonwealth anti‑discrimination
As already noted, the committee understands that the government is still
committed to bringing forward finalised consolidation legislation to unify
Commonwealth anti‑discrimination law into a single statute. The committee
stands by its recommendations in the inquiry into the Exposure Draft in
relation to religious exemptions, and urges the government to implement those
recommendations in the final form of the consolidation legislation.
Having said this, the committee recognises that the Bill at hand does
not deal comprehensively with the issue of religious exemptions across all
Commonwealth anti-discrimination law; rather, it is concerned with exemptions
applying to a limited number of protected grounds under the SDA. The government
has clearly stated that the Bill is designed as an interim measure to introduce
discrimination protection for LGBTI individuals immediately while the broader
anti‑discrimination consolidation project is being finalised, and that
larger changes to the overall structure of the SDA are being considered as part
of the consolidation project.
The committee also recognises the need for the Bill to be passed as
quickly as possible, in order to ensure that discrimination protection for
LGBTI individuals can be enacted without further delay.
With these factors in mind, the committee is not recommending extensive
changes to the religious exemptions in the SDA.
Commonwealth-funded aged care
While not recommending major changes to the religious exemptions
proposed in the SDA, the committee strongly considers that it is prudent to
make some minor adjustments to the religious exemptions in one area as proposed
in the Bill, in relation to aged care services. The introduction of a
limitation on religious exemptions in respect of Commonwealth‑funded aged
care services has broad stakeholder support and would provide important
legislative protection for older LGBTI Australians. This measure was
previously included in the Exposure Draft, and is now included in proposed
government amendments to the Bill. It is also consistent with the current
practice of several of the major religious aged care providers, which have
stated publicly that they already provide services on a non‑discriminatory
In light of this, the committee is recommending that the Bill be amended
to introduce this limitation into the SDA. This amendment will ensure that
discrimination protections for older LGBTI Australians are not less than was
proposed in the Exposure Draft. Further, the previous detailed examination by
the committee of this specific proposal, through its inclusion in the Exposure
Draft, will ensure that it can be considered by the parliament in a timely
manner, allowing for the Bill to be debated and passed as soon as possible.
The committee recommends that the Bill be amended to provide that
religious exemptions in section 37 of the Sex Discrimination Act 1984 do
not apply in respect of sexual orientation, gender identity and intersex status
in connection with the provision of Commonwealth-funded aged care services.
On the whole, the committee agrees with the balance struck by the other
exemptions to be amended or introduced into the SDA by the Bill.
The committee accepts the government's rationale that the exemption
relating to data collection and record keeping is required at the present time,
and that it may be open to review in the future. While the committee is not
recommending a specific timeframe for any such review, it is important that in
the first instance the government promote awareness of this issue in order to
encourage organisations to make necessary changes to data collection systems
Conduct in compliance with other
The committee notes concerns from submitters that this exemption may
result in laws being prescribed which inappropriately limit the discrimination
protections afforded to LGBTI people under the Bill. The committee notes that
any legislation prescribed under the exemption will still be subject to
parliamentary scrutiny, and considers that additional certainty could be
provided by the government consulting with representatives of the LGBTI
community in Australia prior to any laws being prescribed under this exemption.
In relation to the exemption for competitive sporting activities, the
committee notes the Department's response that similar exemptions in state and
territory laws allow for competitors to be considered on a case-by-case basis.
The committee considers that this exemption should be reviewed if it becomes
apparent that intersex individuals or persons with a particular gender identity
are being subject to blanket exclusion from particular competitive sporting
activities, rather than the merits of each competitor being assessed on an
Updating terminology in other
On the issue of updating other Commonwealth legislation to reflect the
terminology used in the Bill, the committee notes that the Bill already seeks
to amend the Migration Act 1958 to implement an updated definition of
'marital or relationship status'. Submitters argued that the term 'sexual
preference', where found in other Commonwealth Acts and regulations (including the
Fair Work Act 2009 and the Australian Human Rights Commission
Regulations 1989), should be replaced with the term 'sexual orientation', and that
the terms 'gender identity' and 'intersex status' should be included in the
relevant provisions of these laws, to bring them in line with the terminology
used in the Bill. The committee considers that these changes can easily be
implemented and would provide welcome consistency across Commonwealth
legislation in this regard.
The committee recommends that the Fair Work Act 2009, the Fair
Work (Registered Organisations) Act 2009 and the Broadcasting Services
Act 1992 be amended to replace references to 'sexual preference' with
'sexual orientation', and to include the new protected grounds of 'gender
identity' and 'intersex status'.
The committee recommends that the Australian Human Rights Commission
Regulations 1989 be amended to replace references to 'sexual preference'
with 'sexual orientation', and to include the new protected grounds of 'gender
identity' and 'intersex status'.
Subject to Recommendation 1, and after due consideration of
Recommendations 2 and 3, the committee recommends that the Senate pass
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