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Monday, 2 April 2001
Page: 26192

Dr LAWRENCE (8:37 PM) —I might begin my address on the Sex Discrimination Amendment Bill (No. 1) 2000 by making a brief reference to a couple of the comments that the previous speaker has made. While I respect his religious views and those of his constituents, I do think that one of the most fundamental principles that underpins our democracy is that of the separation of church and state. Whatever arguments we may mount have to be based on the arguments themselves, not on whether or not they support a particular religious framework. I make that point by way of observation, not criticism.

Unfortunately in this legislation, however, we are seeing an attempt by the Prime Minister and the government to divide the nation on a very important issue. I think in doing so the government has underestimated the Australian people. While the previous speaker might point to various letters he has had from people urging him to support the legislation, there have been a great many people writing to us, sending emails and letters from all sections of the community, not just those directly affected by this legislation. I guess what that points to is that this is a very divisive tactic, one that we have seen in other areas. Since this government came to power, there have been several such attempts to divide Australians from one another: Aboriginal versus non-Aboriginal people, those with a job versus those without and employers versus employees. I do not think it is helpful to conduct debate in this community in that way. In this attempt the Prime Minister seems determined that those women who are unable to conceive naturally shall remain the have-nots, despite their willingness to undergo difficult technical procedures at significant cost, both financial and emotional. That is basically because apparently his idea of the ideal family is not the same as theirs is. I have to say that the Prime Minister's approach to this issue strikes me as diminished.

In considering amendments to the Sex Discrimination Act, I think it is very important for us to recall why this legislation was first passed through this House—I might say, with the support of the Prime Minister. As Australians were told at the time the legislation was passed, the fundamental principle of the bill was to outlaw:

... discrimination based on sex, marital status and pregnancy and discrimination involving sexual harassment ... and that in public life—work, education, accommodation, the provision of goods, facilities and services, the disposal of land and the administration of Commonwealth laws and programs—any such discrimination should be unlawful and there should be a means of redressing discrimination where it occurs.

There are no exceptions given in that; they are all very clearly laid down. The Prime Minister speaks of amending the Sex Discrimination Act as though supporting those rights were never part of the original act for which he voted. But, as he said to the parliament at the time:

There is no doubt that amongst the less privileged in our community, amongst ethnic groups, there are incidences of discrimination and disadvantage against women which are not present within some of the more conservative or Anglo-Saxon elements of our society. I think the bill will be of value in respect of that, and I welcome the effect it will have.

That was said on 7 March 1984. As the Prime Minister knew in 1984 but does not seem to know now, the Sex Discrimination Act was developed exactly to prevent the kind of `majority rules' outcomes apparently espoused by the Prime Minister today.

Our system is a proudly democratic one, and the support of the majority of citizens is required to form a government. But in Australia, as in many other democracies, the power of the majority has always been tempered by respect for the rights of others, particularly those in minorities—hence the Sex Discrimination Act. The rights protected by the Sex Discrimination Act are examples of such rights. They are not about simple majoritarian outcomes. We do not say, `Simply because the majority wants it to be so, it should be so.' We recognise that this very simplistic notion of democracy would indeed be tyranny. This legislation and other laws designed to ensure the protection of all Australians are about ensuring that, while governments are elected democratically by a majority of voters, they should also pay heed to the rights of those people who do not conform to the majority views of values. It is about the rights of all Australians, regardless of their numerical strength. It may be that in some of these groups there is only one person, but they still have certain inalienable rights. The right to live free from discrimination and the right to enjoy the benefits of our community regardless of one's sex or marital status or race or religion are amongst these rights. One of Australia's proudest traditions is the belief that we are all equal. For the Prime Minister to attempt to qualify those rights, especially in what looked like a political stunt, is an indictment of the government and a retreat to standards that I think all Australians have come to expect only from rogue states, not from their own country. It really is a dismal outcome for all Australians. In my view, this legislation shows all Australians how past his use-by date this Prime Minister has become. Why is he thinking like this? In 1984 he was prepared to support such legislation and now he wants to repeal it in part.

For most young Australian women and men particularly, the notion that it may once again be legal to discriminate on the grounds of marital status is entirely foreign. You only need to talk to them for five minutes for them to be puzzled by this move on the part of the government. For nearly 17 years since the bill was passed, it has been an illegal question to ask in a job interview. If evidence is presented that any opportunity has been denied on the basis of marital status, then action can be taken and redress sought. That is what we have been doing for 17 years. This is, of course, appropriate and just. But it appears that this government is uncomfortable with that notion, with the belief that discrimination on the basis of sex or marital status is wrong. They want to move to water it down.

The Australian Labor Party entertains no such qualifications. We believe that all Australians are equal and the right to be free from discrimination on the basis of sex or marital status is a fundamental, universally recognised human right. I suppose in some ways it is not surprising that the government is moving in this area because in the five years it has been in government it has not had a very good record on human rights. For example, the decision to withdraw from the United Nations committee process, thereby removing us from the scrutiny of the world when it comes to our own behaviour, is one which tarnishes Australia's human rights record; indeed, our record as good international citizens. The decision to remove Australia from the processes of the UN comes at a particularly difficult time for the women of Australia. It means that Australia will not sign the optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women, although various ministers have said that they might under other circumstances—not now, apparently, despite the fact that Australia has been involved in drawing them up. What is implied in that rejection is that the removal of such discrimination is, at least for this government, not an issue. We disagree, and we disagree strongly.

It is clear, despite what has been said by some speakers, that this legislation will not even clarify the conditions under which women can gain access to IVF services. It does not even assist on that point. The previous speaker thought it might, but it does not. It will in fact create the kind of legislative complexity that Australian Federation was, in many ways, designed to overcome but that still dogs us, I would have to say. There are now, and there will be after this legislation, many different scenarios across Australia for single Australian women seeking IVF support.

If this legislation is passed in the federal parliament, women in each state and territory will face different sets of criteria for access to assisted reproductive services, making the whole process more cumbersome and more expensive but, importantly, no safer and no more consistent. If the Prime Minister's highest priority were to ensure rights for all Australians, surely this kind of inconsistency would have been addressed. In attempting to move responsibility for access to IVF treatment to the states, this government undoes yet another important objective of the act, which was explicitly stated at the time of its introduction. As Senator Ryan told the Senate in her second reading speech introducing the Sex Discrimination Bill in 1983:

The need for such a law is now widely understood and accepted. Throughout Australia women experience discrimination on the basis of their sex and their marital status. In three States there are avenues for redress of infringements of women's rights. In other States and in the range of areas which are the responsibility of the Commonwealth there is no remedy. The result is economic and social disadvantage and a significant impediment to the exercise by Australians of fundamental rights and freedoms.

The government is seeking to create such a circumstance again. The government at that time took responsibility for the rights of all Australians, regardless of where they lived, while unfortunately this government is trying to turn the clock back and avoid its responsibilities. What is a federal government for if it is not to ensure that the rights of some Australians are not privileged over the rights of others?

I now turn to a slightly different argument against the amendment which is that, as well as being discriminatory, the government's legislation is also bad law. This problem was identified by the Senate inquiry into the legislation which was conducted by the Senate Legal and Constitutional Committee chaired by Liberal Senator Marise Payne. I pay tribute to Senator Payne, a brave woman who came out against her party's interests in this respect. The majority report from the committee, after four public hearings and evidence from 55 witnesses expressing a wide range of views, concluded:

The Committee has concerns as to whether the Bill, as drafted with amendments, is the necessary or appropriate response to achieve the stated aims of the Bill.

In other words, it does not even do what it claims to do. Further, they went on to say:

The Committee is concerned that the Bill is unable to achieve its objective, as stated by the Prime Minister and the Attorney-General, of facilitating the right of a child to the `reasonable expectation, other things being equal, of the care and affection of both a mother and a father.'

That is the expectation the previous speaker spoke of. The bill does not do that. The committee indeed even noted:

In fact, departmental officers have acknowledged this fact in conceding that the Bill can only apply to the moment of conception and has no effect on any subsequent action of the parents of a child.


Insofar as the Bill appears to have an unstated objective, of allowing State and Territory law to be exempt from the consideration of the courts, the Committee is concerned that it is not the appropriate method of achieving this objective.

So the senators who spent considerable time and energy examining this legislation found that, even if all of us agreed that it is the only way to achieve happy families as part of a nuclear, heterosexual family unit, this bill could not achieve that outcome. Of course, I hasten to add the government's view of the ideal family is not the only one supported by the Australian community in whole or in part. But, even so, successfully legislating for happy families, I think, is highly improbable. If we could do it, I am sure we would. As Senator Payne's committee concluded:

Irrespective of whether it agreed that the best interests of a child were served by having the reasonable expectation of the care and affection of a mother and a father, the Committee concluded that the proposed amendments did nothing of themselves to ensure such an outcome because they were so remote from it. Many submissions and witnesses at public hearings reached a similar conclusion.

If the government had really been inclined to that course of action, then they probably should have studied work that has been done in the United Kingdom. The United Kingdom government, through its UK Human Fertilisation and Embryology Authority, has developed a code of practice which has legislative force. This actually does provide criteria for the treatment of clients and donors to ensure that the best interests of the child are protected. It is a practical, workable document with the force of law. I will quote from this document for a few moments, because I think it shows what we should be doing in this case; it gives an example from a comparable democracy. One of the factors to be considered in the UK's code of practice—again, with the aim of protecting the best interests of children—is in section 3.16, where it says:

People seeking treatment are entitled to a fair and unprejudiced assessment of their situation and needs, which should be conducted with the skill and sensitivity appropriate to the delicacy of the case and the wishes and feelings of those involved.

I wish that had been a sentiment of people drafting this legislation. It goes on to say in section 3.17:

Where people seek licensed treatment, centres should bear in mind the following factors—

and all of these are important to the welfare of the child—

a. their commitment to having and bringing up a child or children;

b. their ability to provide a stable and supportive environment for any child produced as a result of treatment;

c. their medical histories and the medical histories of their families;

d. their ages and likely future ability to look after or provide for a child's needs—

Do you see the focus? It is actually all on the child's needs, not on discriminatory treatment of the parents. It continues:

e. their ability to meet the needs of any child or children who may be born as a result of treatment, including the implications of any possible multiple births;

f. any risk of harm to the child or children who may be born, including the risk of inherited disorders, problems during pregnancy and of neglect or abuse—

These are all tangible, known precursors in terms of the child's needs. It concludes:

g. the effect of a new baby or babies upon any existing child of the family.

The next section looks at some other factors:

Where people seek treatment using donated gametes, centres should also take the following factors into account—

In other words, when you move a step forward, there are some other issues which you have to take up, and it describes them as:

a. a child's potential need to know about their origins and whether or not the prospective parents are prepared for the questions which may arise while the child is growing up;

Again, it is in stark contrast to this legislation. It talks about:

b. the possible attitudes of other members of the family towards the child, and towards their status in the family;

c. the implications for the welfare of the child if the donor is personally known within the child's family and social circle—

These are practical problems likely to be confronted by parents. It continues:

d. any possibility known to the centre of a dispute about the legal fatherhood of the child—

Again, they are critical questions not referred to in this legislation. They go on to talk about other matters including where the child has no legal father. They are not blind to the problems associated with that, but they deal with them with sensitivity and in a non-discriminatory fashion. It is very important for us to remember that there are a great many parents in our community who are looking after children either alone, in homosexual relationships or in all sorts of other arrangements where love and care are critical—and exercised.

Like the member for Herbert who spoke before me, I have had letters from various people concerned about this bill, including one from a couple—two women—who are parents to a 21-month-old girl. They said to me:

It seems obvious to me that what children need is to be loved, wanted and cared for.

That really should not be a revelation, but it appears that we have to say it. They go on to say:

There are not too many people who thought harder about whether they actually want to be parents and whether they can meet the needs of the child than women seeking assisted reproductive services. Let me assure you, these women have thought long and hard about their ability to be parents and whether they have the financial and emotional resources to be able to take on this task.

I know there are other parents who feel the same.

The Senate inquiry found additional difficulty with the government's proposed amendments. Indeed, the committee acknowledged that:

... the amendments may have an indirect impact on a wide range of issues such as adoption, surrogacy and the right of children to knowledge about their biological parents, all of which were raised during the course of this inquiry.

Despite the fact that it has taken so long to draft this legislation, there are still significant problems, and I understand that there are to be further amendments. The committee concurred also that the amendments would erode existing rights and undermine Australia's human rights system. I quote again:

The Committee believes that this is the first such limitation contemplated since the inception of the Act in 1984.

This is not a good first. This is one occasion where we would rather it did not happen at all. The committee continued:

The Committee is persuaded that its passage into law would erode existing rights.

This is a majority committee report—a cross-party committee report. It would also, they say:

... establish a precedent for future attacks on the rights enshrined in the Act.

That is a very worrying precedent. The committee continues:

By creating exceptions to basic guarantees this Bill would introduce uncertainty into our human rights guarantees and undermine public confidence in the system of human rights protections provided by the Commonwealth.

An uncertainty they point to—the first but not the last. Thus the committee found that this legislation is, in summary, introducing discrimination into our anti-discrimination legislation, backtracking on our international obligations, and undermining our commitment to equality under the law.

In conclusion, to the women of Australia this treatment is not such a surprise. This is, after all, the same government which has cut child-care support, slashed health and education funding, ended government support for women's community organisations and put a tax on sanitary products and baby products.

Mr Cadman —Rubbish!

Dr LAWRENCE —It is not rubbish—look at your own record. This is a government which has seen a widening of the gender gap on women's and men's wages and has overseen a proliferation of work in family-unfriendly hours. This is the same government. It is consistent. So perhaps Australian women should not be, and certainly are not, surprised at the latest moves against them from the Liberal-National government. They may not be surprised, but they are certainly disappointed.

Let us face it—this legislation is not about improving the lives of those children who are born as a result of assisted reproductive technologies. That is not its goal and it does not achieve it. This legislation is designed to make it legal to discriminate on grounds of marital status, and thus allow access to a health service on a discriminatory basis. This parliament decided long ago that such discrimination was a violation of fundamental human rights, and we should never undermine that decision.