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Legal and Constitutional Affairs Legislation Committee
24/01/2013
Human Rights and Anti-Discrimination Bill 2012

CUDMORE, Mr Dominic, Senior Associate, Prolegis Lawyers; and Legal Adviser, HammondCare

MARTIN, Mr David, General Manager, People, Learning and Culture, HammondCare

MICHAELS, Miss Tara, Legal Counsel (In House), HammondCare

[12:35]

ACTING CHAIR: Welcome. Sorry we are running a little bit late at the moment in this hearing. Do you have any comments to make on the capacity in which you appear?

Mr Cudmore : I am a lawyer with Prolegis Lawyers in North Sydney and I act on behalf of HammondCare in a number of matters.

Mr Martin : I am a member of the HammondCare executive, with previous operational experience in aged care.

ACTING CHAIR: Thank you very much. We have a submission from HammondCare, No. 388. You should assume that we have read the submission. Do you want to make any alterations or amendments to that submission?

Mr Cudmore : Yes, we would like to make an amendment, and I will elaborate on the reasons for that shortly. We would like paragraph 11(f) to be removed completely from the submission. It is on page 25.

ACTING CHAIR: Thank you. I invite you now to make a short statement, because we are running out of time, and then we will invite some questions from the committee.

Mr Cudmore : Thank you for the opportunity to make oral submissions today and to answer questions. As you will see in the submission, HammondCare is a non-denominational Christian aged-care services provider in Australia. In accordance with previous submissions HammondCare has made on this issue of consolidation and also in other inquiries on other issues that are related, one of HammondCare's principal concerns is the proper and appropriate support and protection of religious freedom in Australia and that this consolidation process express that in the best possible fashion. First of all, HammondCare is very supportive of the consolidation idea, of turning five statutes into one. It is a very logical development. But the sensitivity remains that religious freedom is not adequately acknowledged, promoted and supported in the draft legislation. We have quoted in our submission a statement to the Attorney-General by Professors Parkinson and Aroney in the consolidation consultation. It is on page 26 of our submission. The professors say:

Great care needs to be taken to ensure that a focus on the first-mentioned right (freedom from discrimination) does not diminish the others (e.g. freedom of religion, association and cultural expression and practice). This can readily happen, for example, if freedom of religion is respected only grudgingly and at the margins of anti-discrimination law as a concessionary ‘exception’ to general prohibitions on discrimination. It can also happen if inadequate attention is paid to freedom of association and the rights of groups to celebrate and practise their faith and culture together. These dangers are real.

We would also like to refer to the Hon. Justice Spigelman's Human Rights Day oration, when he also raised concerns about some aspects of the legislation. He said:

Some advocates for reform of anti-discrimination laws have a tendency to place a very high values on 'non-discrimination' and to concede 'exceptions' based upon freedom of religion, association or cultural expression only with great reluctance, if at all. Although they sometimes recognise that there is a need to give due weight to all human rights and to find an appropriate balance between them, it is generally not acknowledged that posing the question as one of identifying exceptions to the principle of non-discrimination prejudices the inquiry in favour of the right to be free of discrimination and against the rights to freedom of religion, association and culture, understood as both individual and group rights. Moreover, anti-discrimination laws tend to be highly individualistic in focus, and allow relatively little room for group rights, including the associational rights guaranteed and implied by Articles 18, 22, 23 and 27, ICCPR.

In relation to another aspect of our submission, I would like to ask Mr Martin if he would give a brief address to clarify certain aspects of our submission in relation to aged care services.

Mr Martin : Our submission on what is a complex piece of legislation has received some public discussion as well, and it is not all well-informed. We wanted, on behalf of HammondCare, to clarify a couple of points. HammondCare does not discriminate in provision of care on any basis, whether race, religion, gender or sexual orientation. HammondCare is currently and will continue to be an employer and a carer of people of all backgrounds, including people of the gay community.

It has been wrongly interpreted, I think, that HammondCare's submission on the Human Rights and Anti-Discrimination Bill 2012 suggests that we might be thinking about withdrawing from aged care or turning away elderly gay or lesbian people, and I wanted to say that that is not the case. Rather—and this has always been the case and will continue to be the case operationally—need is the criterion for access to HammondCare services. Our passion has always been about improving quality of life for people in need, and we care for people who have complex health or aged care needs, regardless of their circumstances. So, it is because of the religious freedoms that we have as a faith based organisation that HammondCare has offered care for all people, regardless of their faith, regardless of their financial means and regardless of their marital status, their gender or their sexual orientation.

Specifically, HammondCare's view as an aged care provider is that we believe that people are loved by God and made in God's image. So we are called to show that same love, with compassion and respect, to all people in need. That is why we believe that faith-based organisations should continue to operate under internationally recognised religious freedoms to run services and employ staff in alignment with the openly and honestly held views of the organisation. We think this will ensure that faith based organisations can continue to freely make the best possible care based decisions for their people and for the people in need whom they care for.

Senator FURNER: Mr Cudmore, I might start with you on your submission with respect to the removal of clause 124 of the draft bill. You seem to base that around a position of additional costs. We heard from the previous witness, and we heard yesterday, the reference to this as 'go away money' in circumstances in which there are applicants before jurisdictions to run cases, whether they be industrial matters or, in this case, anti-discrimination claims. I would like to hear from you, firstly, what you base your position on in terms of the removal of that and, secondly, an example of some of the cases you might run for HammondCare.

Mr Cudmore : Is this in relation to the burden of proof?

Senator FURNER: That is right.

Mr Cudmore : I am just refreshing my mind on the section itself. There is a general concern. It certainly is not the major focus of our submission, and I am sure other organisations or individuals have paid more attention to this issue. But our concern is that, in the anti-discrimination tribunals at both a federal and a state level, there is a difficulty in getting to the actual facts of the circumstances at an early stage of the process, and the organisation can experience a significant expense in conducting and defending the litigation. I have not represented HammondCare—in one matter I have represented HammondCare and my understanding is that a settlement was reached in circumstances where there was a possibility of taking the matter further. But owing to the cost of taking it further—that is, to a court of higher jurisdiction—a balance had to be met between that cost and the need to get on and provide services to people who need them. It can become a financial burden—

Senator FURNER: Can?

Mr Cudmore : It can.

Senator FURNER: It is not necessarily guaranteed?

Mr Cudmore : I have only had experience with one matter. I am not sure if Mr Martin may have any further comment on that.

Senator FURNER: Are you relatively new to the organisation as a legal representative?

Mr Cudmore : We have been representing the organisation on some matters. They have a number of legal firms that represent their interests.

Senator FURNER: I see. But you have only represented them on one occasion.

Mr Cudmore : Yes.

Senator FURNER: And that is what you are basing your arguments for the removal of clause 124 around.

Mr Cudmore : It is the argument of HammondCare. I am not arguing it from my personal experience. What I am saying is that, as a matter of principle, HammondCare is concerned about the potential cost to the organisation in defending anti-discrimination claims.

Senator FURNER: What is your view, given that the process is to develop a prima facie case to establish grounds for the applicant to put on the table the reasons why they perceive they have been discriminated against? What is your position on the respondent being in a better position to refute or argue against those grounds on the basis—and I used the example yesterday of employment grounds—of the initial engagement of employment? They would certainly be able to come back to the court if it reached that point in time, or if it was still in conciliation: 'No, it wasn't a case of discrimination. We went through a process of identifying the attributes of the employment, the profession, the background and the competence of a variety of different applicants, demonstrating that it was not a case of discrimination; it was merely a case of a person or an applicant having a perception of discrimination.' Therefore the respondent was in the best position to demonstrate that there were no grounds for discrimination.

Mr Cudmore : The first concern is that it is a change in the traditional practice of the law in Australia where the complainant or the plaintiff presents their case and the respondent or defendant defends that case. Secondly, we do not know how it would be applied in practice and whether it would be of benefit to the system. It is untried, and I think that is our concern.

Senator FURNER: But it has been tried in other jurisdictions. The example I am most familiar with is in industrial law, and for each persuasion of government there have been arrangements in place where this particular attribute or process seems to work.

Mr Cudmore : I would say that it is not the principal focus of our submission. It is a comment.

Senator FURNER: Okay.

Mr Cudmore : Our principal concern is the issue of religious freedom and, as Mr Martin has addressed, the issue of sensitivity about aged care.

Senator PRATT: You have talked to the issue of religious freedom as a fully-fledged right, but I note that in your submission you imply that some faith organisations may step away from providing care services if the limitations in this bill proceed. Are you actually saying that HammondCare is likely to hand back its funded aged-care allocations?

Mr Martin : No. My comment at the start was that that is not HammondCare's view.

Senator PRATT: If you have no objection to sexual orientation—and clearly you have got diverse clients already; you have put that on the record—I am not quite clear about why you are of the view that the current exceptions protecting certain actions of religious organisations, particularly in relation to the rights of clients, need to be retained.

Mr Cudmore : Senator, in relation to aged care particularly?

Senator PRATT: Aged care is one example, but clearly it could apply—it does not in the case of the draft bill before us—to any range of different services.

Mr Cudmore : Yes.

Mr Martin : Yes. The reason behind our view on that is to say that, similar to what we have heard before, that we feel that it is through the provision of choice and different services that different organisations with different backgrounds that are shared commonly offer is the basis to extend cover to a whole range of different people rather than through a particular view about legislating a common outcome across all those, particularly when it comes to matters of living and matters of day-to-day living that members of the different faith based organisations might share.

Senator PRATT: Whether it is the Department of Health or FaHCSIA that diversity of services is not actually part of the contract ensuring which organisations will abide by the Anti-Discrimination Act and which ones will not, so for the gay man who needs to access aged care an organisation that retains the right to discriminate may be the only service available.

Mr Cudmore : One comment in relation to the question is the suggestion that faith based organisations do not abide by the Anti-Discrimination Act. This is of concern because again it is suggesting—

Senator PRATT: I did not say it.

Mr Cudmore : that faith based organisations are above the law.

Senator PRATT: But you retain the right to exercise the exception.

Mr Cudmore : Yes, because it is a fundamental right to religious freedom, recognised by international instruments.

Senator PRATT: Where is the fundamental right of the person who may be a gay man with dementia or a same-sex couple living in an aged-care facility? To be honest, I can say that in an ideal world I absolutely agree with you that we should be able to have a proliferation of everyone freely able to do what they want, but governments do not contract services in that way, do they?

Mr Cudmore : One of the concerns in the legislation is that it does not deal with conflict of rights in a very helpful and clear fashion. I think there needs to be a lot of discussion and consideration about how—because you are quite right that there is a conflict—we properly deal with it without extinguishing one right. That is the fundamental problem.

Senator PRATT: I put to you that when the intention is from the government's point of view the delivery of a service that that is actually the more fundamental and important right because it is the intention that the government make available universal access to aged care and that that should trump your right to retain the right to exercise that exemption.

Mr Martin : In the aged-care industry there is the Aged Care Act. The quality of care principles and the user rights principles that are already in place that we abide by when we accept government funded aged care absolutely make it clear that when people come in with particular needs aged-care providers need to meet those needs. We have got a well-developed system that is also assessed by the accreditation agency and is very heavily regulated at the moment that actually—and I am talking now just from experience in aged care, both in residential and in community based aged care—

Senator PRATT: And I absolutely agree with you but I therefore do not understand why you want to retain that current right to exercise that exception should you ever want to. It is contradictory.

Mr Cudmore : I am sorry; I still cannot quite follow your question, Senator. Is it in relation to aged care and the provision for aged care that you are referring to?

Senator PRATT: I could use either. Personally, I do not believe such exemptions should exist for government contracted services in an ideal world, particularly where we do not have that plurality available to everybody.

Mr Cudmore : That also raises a concern—and we have referred to this in our submission—about a view that the government can dictate the mission, the values, the principles that a private entity, be it faith based or not, in receipt of public subsidies is to follow. A number of years ago the Human Rights Commission, under its previous name, issued guidelines on employment for faith based organisations in receipt of government subsidies, and there was a significant public debate and eventually those guidelines were withdrawn because of public concern about the government's attempt, at least in respect of the guidelines, to dictate to private organisations how they were to run and what their mission was to be. So that is a problem for us.

Senator PRATT: Well, it is a problem when people may or may not have access to a service that they should have the right to access.

Mr Cudmore : Of course, but I would imagine that there are other ways of achieving that by the provision of a plurality of services that meet the needs of all members of the community.

Senator PRATT: But that plurality does not exist, does it?

Mr Martin : In some cases it does and in some cases it does not, but you are right—then it becomes a failure of the policy decision to accept the resources.

Senator WRIGHT: I guess I was going to ask the same question. I still have not really got to the bottom of it. I have heard, Mr Martin, your explanation about HammondCare really caring about people—and everybody, all comers, essentially, from the sound of it. I am actually still struggling to understand: in the context of the work that you do, and if the exception, which would enable conduct—in good faith, either which conforms to doctrines, tenets and beliefs of your religion or is necessary to avoid religious sensitivities, undertaken by an officer or an employee of your organisation—to be undertaken which actually is unfavourable to certain people under the protected attributes, why is it necessary, practically? Is it just a matter of holding on to it just in case? Where does the practical come up against the principle?

Mr Martin : Are you asking that in terms of access to services or employment of staff or both?

Senator WRIGHT: I am asking about access to services at this stage, because that was essentially the point that you made.

Mr Martin : Yes.

Senator WRIGHT: So how would you potentially need to exercise your right to an exemption to be able to exercise unfavourable treatment against a person on the basis of gender identity, relationship status, potential pregnancy, pregnancy, religion or sexual orientation? Why do you need to retain this exception?

Mr Martin : I can only speak from my point of view, from my own operational experience, and say that I have not come across that particular circumstance. So I would be only talking of hypothetical situations. In some aged-care services, for example, it is not just individual service; you are also managing a community of people choosing to live together, and I can imagine—and, again, I am speaking hypothetically—that there might be difficult situations where a person of a particular view is causing disruption to the other members of the community around which they are living, all of them living in the community together. One of the challenges under the Aged Care Act is recognising people's individual rights and balancing those with their group rights to live together safely and express their views. I could imagine that there might be a situation there where you might need to act, to work with or support a community, for example, who felt uncomfortable or threatened by an individual. I do not know; it is not my personal experience. But that is the type of situation I could possibly imagine where that might occur. I can imagine a situation where someone was particularly undermining the organisational values of the community or the service and making it difficult for staff to deliver it; that might be a situation where we would have to have a think about service. But, again, it is probably more on the basis of need and behaviour rather than that, because it is not my experience to specifically have that. But I think where we are coming from is: as to legislating an outcome—and forgive this slight diversion—I can imagine, for example, if we do it with this, then if euthanasia, for example, were to become another ground where we said, 'In the same way, we are going to require that to be recognised in all people,' for faith based organisations that would be very difficult—to be forced to choose to have to enact people's wishes in that area if that were against the faith based tenets of the organisation. So that is where I think, from that approach, we are saying it is rather an approach of options of service and recognition of the different values of people providing those services. That is the way that it is offered, rather than legislating for a particular outcome.

Senator WRIGHT: With the scenario you painted about managing difficulty in the community—I say this having had a mother who has just been through the aged-care system—aren't they the considerations and the challenges that every organisation who is providing aged care is dealing with, irrespective of whether it is a faith-based organisation, a values-based organisation or a humanitarian one—for whatever reason?

Mr Martin : Yes.

Senator WRIGHT: Sectarian—sorry, not sectarian but non-religious or non-faith-based.

Mr Martin : Yes.

Senator WRIGHT: I am still struggling to really understand why it is that, by virtue of being faith based, there should essentially be rules different from those for others.

Mr Martin : Yes, it is a good example that you raise. I think that is sometimes the case, particularly when it is openly and honestly developed. I am talking about now, perhaps, a residential community that is advertised as a faith-based religious community where people living there all share a value because they have gone there and chosen to move into that facility or that service because they are with people of common views, and about then having someone of a completely different view come in and completely disrupt and interrupt the views of the other people that have gone to live there. I am talking about resident choice now, rather than it being forced on them by the organisation. Because you are sometimes managing a community and not just individuals, that is where it gets difficult. We would not be having this conversation anywhere near as much—

Senator PRATT: But those same people would have difficulties on issues outside the attributes in this bill.

Mr Martin : That is right.

Senator WRIGHT: But I am thinking about this ethnic-based aged housing, which is wonderful because it allows people from the same ethnicity. But similarly, if you have someone coming in from a different ethnicity, I think there are going to be those sorts of issues across the board. But I will leave it there. The other question I wanted to ask you was about this: I was interested in your stance on the shifting burden of proof—the changed burden of proof in the draft bill. Having looked at your submission and seen the sorts of people that you say that you care for particularly, including people who are financially disadvantaged and so on, I am just interested in the fact that many of the submissions that we have heard from organisations in favour of the changed burden of proof are on the basis of recognising that essentially it is important to be able to allow, particularly, the most disadvantaged people in Australia to be able to be protected from discrimination that occurs on a common basis, often on the basis of various attributes that are included here; that it is often very difficult for them to get redress or to stop that sort of discrimination; and that access to justice is actually served by being able to have a situation where someone can make a prima facie case about discrimination having occurred but then they will not have the resources available to be able to establish that discrimination actually occurred. They do not have the evidence. They cannot get in the mind of the decision maker. In fact, the argument is that the best placed person to adduce the evidence one way or another is the person who made the decision. Have you given any thought at all to the point of view of the people that are your constituents and that you say that you care about in terms of the balancing process in a large public good of protecting people against unlawful discrimination and their ability to pursue their rights or to do something about it?

Mr Cudmore : First of all, Senator, thanks for that question. I think the first response would be that the number of issues of an unlawful discrimination nature with HammondCare, as far as I understand, is very low.

Senator WRIGHT: In HammondCare, but I am talking more generally from your philosophy about caring for people and the disadvantaged.

Mr Cudmore : HammondCare is there to serve the aged of Australia, so of course it is very concerned about assurance that their rights are protected, that they are well cared for et cetera. I guess, again, it is an issue of the balance of the rights of individuals and also the right of the organisation to properly defend itself and not incur unnecessary and very expensive litigation—this costs organisations a lot of money. So it is a balance issue, for sure, and we just do not know how the discrimination authorities will deal with these sorts of complaints; it is untested. So there is a concern that there will be a rise in unlawful discrimination complaints that will create greater expense for aged-care providers, employers or providers of services in Australia generally. We do not think that is particularly helpful.

Senator WRIGHT: If as a result of this draft legislation there is indeed an increase in the number of complaints that are successful, perhaps because the burden of proof has shifted, couldn't it also be argued that that is achieving an outcome, which is that people who are being discriminated against—arguably, some of the most vulnerable and disadvantaged people in Australia—are able to successfully take action to have that protection against discrimination that the act is designed to provide them with? You are taking the point of view of your organisation, but you also have a larger mission that you have put very clearly in your submission. To what extent do you feel any requirement to think slightly broader in terms of the people that you also purport to care about and look after?

Mr Cudmore : It is a difficult one to answer, Senator. Of course Hammond Care would support the rights of all those people who use its services. I think the proposal is more complex than that. It is tied in with the different protected attributes that are proposed, and a couple of them are not very well defined or not defined at all. It comes as a whole package, and that is the sensitivity—we do not know what this means and what implications it has for Hammond Care, so it is difficult to also support a change in the burden of proof. Of course people's rights need to be respected and of course if they are breached and they are contrary to the law they have a right to have redress—that is not questioned. It is just the whole package.

Senator WRIGHT: I might leave it there. Thank you.

CHAIR: I thank the witnesses for your submission and for the three of you making yourselves available today.

Proceedings suspended from 13:07 to 13:59