Victoria's Equal Opportunity Act: inherent requirements and the problem of discrimination

The law exists to help rulers govern society, and should help those in that society to live peaceably. The law should allow people to live and let live. It should encourage people to get along with one another.

However, it is more and more the case that the law is dabbling in questions which are beyond its proper brief and, in doing so, it makes the job of getting along with one another more difficult. One area where this is quite evident is the way the law deals with sexuality and gender.

In recent weeks, the Victorian Government has introduced a bill which, according to the Attorney-General Martin Pakula's second-reading speech, is demonstrative of its commitment "to stand up for people's rights" and to "put equality back on the agenda in Victoria." Broadly speaking, the bill will wind back the current freedoms for religious bodies and schools regarding employment decisions in Victoria's anti-discrimination law (the Equal Opportunity Act 2010).

The bill is intended to remove the right for religious organisations to discriminate in their employment decisions based on the grounds of an individual's religious beliefs or activities or lawful sexual activity, sexual orientation or gender identity. This right is removed in cases where adherence to the religious confession and ethos of an organisation are not judged by the State to be inherent to the performance of a particular role in the workplace.

In other words, the bill removes the right for religious organisations to refuse to hire an individual if their religious belief or activity or sexual choices or lifestyle is contrary to the organisation's religious doctrine, unless an arm of the State agrees that conformity with religious doctrine and practice is inherent to the performance of the role. So the State would get to decide if a Jewish school can refuse to hire a Muslim maths teacher (and vice versa) and whether a Christina church can refuse to hire a Buddhist as a youth leader or pastoral care worker.

There are a number of questions and objections which can be raised about this bill. We will look at three key objections. First will be the use of the term discrimination. What is it? How is it being used in this instance? Second, we will explore the purpose and necessity of "exceptions" in the Equal Opportunity Act. Third, we will examine how the very idea of "inherent requirements" is problematic.

Discrimination: a misunderstood term

This discussion is best introduced by some background on what anti-discrimination law seeks to achieve and how the Victorian version of it works. The word "discrimination," especially when used in the media, almost always comes with a negative connotation ("they are discriminating against me" is usually a complaint). But "discrimination" simply means to treat people or circumstances differently.

You may speak to your partner in a different way to how you speak to your child. You are probably more likely to help an elderly person carry their groceries than you are to help a fit, able-bodied 19 year old. When in court, lawyers address the presiding judge in a certain way, and their fellow lawyers in another. In each of these cases people are discriminating. People are making choices to speak and act differently toward different kinds of people. Surely you would agree that this is a normal everyday occurrence. We all discriminate. We all treat different people differently.

In international law the United Nations Human Rights Committee (UNHRC) has said that under the International Covenant on Civil and Political Rights (ICCPR) not all differentiation of treatment constitutes unlawful discrimination if the criteria for such differentiation are reasonable and objective, and if the aim is to achieve a purpose which is legitimate under the ICCPR. The UNHCR's view accords, in this case, with common experience. Individuals and organizations discriminate or differentiate between people every day on rational and unobjectionable grounds in many settings.

The real issue is whether an act of discrimination or differentiation is based on reasonable criteria and furthers a legitimate goal. Of course, the issue supposedly being addressed by the Victorian Government's Equal Opportunity Bill is not this kind of discrimination, but is allegedly unjust discrimination.

Discrimination and exceptions in the Equal Opportunity Act

The Equal Opportunity Act starts out by defining discrimination very broadly. It takes discrimination to mean treating a person unfavourably because of a protected attribute. It then prohibits such discrimination in a range of activities (for example, employment, education, provision of goods and services).

But there is no equally broad provision in the Act like the UNHRC Comment to say that an act of unfavourable treatment is not unlawful discrimination if the criteria for such treatment are reasonable and objective and if the aim is to achieve a legitimate goal. Instead, the Act has to back-pedal from its very broad definition of "discrimination" by using a large number of exceptions to make lawful the many reasonable and rational instances of unfavourable differentiation. (Section 13 provides that discrimination is not prohibited if it is covered by an exception or exemption in the Act.)