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Discrimination and the government

By David Leyonhjelm - posted Wednesday, 25 October 2017


Next month a strong ‘yes’ result from the postal survey will be announced, a private members bill supported by the Government will be put forward, the bill will pass and same sex couples will be marrying before Christmas (and divorcing soon thereafter).

It’s all over bar the shouting, and the shouting will be about discrimination law. 

The bill supported by the Government will allow organisations established for a religious purpose and religious celebrants to refuse involvement in a same sex marriage.  But I’m betting it won’t do the same for non-religious celebrants or private businesses like venues, florists, photographers and cake makers.  I intend to offer amendments to fix this gap. However, the debate this prompts will be a microcosm of a debate we need to have about discrimination law in Australia.

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This debate is usefully broken up into a debate about government discrimination, and about discrimination by the rest of us.

To ensure they serve us all, governments should not discriminate between people based on their inherent characteristics unless, on rare occasions, such discrimination serves a legitimate role of government.

For example, government marriage registrars should not be allowed to discriminate between couples on the basis of sexuality, because there is no connection between such discrimination and the legitimate role of government.

Similarly, government should not provide payments to those who have certain ancestors and deny payments to those with different ancestors.  This is exactly what the Commonwealth Government does when it hands out ABSTUDY payments.  Subsidising the education of needy students may be a legitimate role of government but it is plainly wrong to suggest that, where there are two students with similarly paltry income and assets, the aboriginal student is needy while the non-aboriginal student is not.

Similarly, governments should not discriminate between criminals such that those with the right ancestors are less likely to be imprisoned.  Yet this is exactly what those campaigning to reduce aboriginal incarceration rates are calling for.

There will be instances, albeit rare, where government discrimination serves a legitimate role of government.  For instance, customs officials and police imposing extra scrutiny on young brown‑skinned men because they pose a statistically higher risk (albeit a low one) of criminal and terrorist activity could serve the legitimate government role of harm prevention.  Unfortunately, a police officer scrutinising a young brown-skinned man is likely to be attacked as racist, but not ageist or sexist.

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When it comes to discrimination by the rest of us, the law is a dog’s breakfast.

We are not permitted to discriminate on the basis of age, disability, sex, sexual preference or race, even though the government does it all the time.  But you’re exempt from this ban if your discrimination is considered to be reasonable by the relevant bureaucracy.  This is as clear as mud.

You’re also exempt from discrimination law if your discrimination helps a particular group.  This is bizarre as it ignores the fact that all discrimination helps a particular group at the expense of those outside the favoured group. 

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This article was first published in the Australian Financial Review.



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About the Author

David Leyonhjelm is the Liberal Democrat Senator for NSW.

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