Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

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

By Mark Sneddon - posted Wednesday, 28 September 2016


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).

Advertisement

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.

Advertisement

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.)

Where an exception applies, the conduct is a lawful discrimination or differentiation and not prohibited discrimination. These exceptions are the balancing provisions which pull the Act back from prohibiting a very large number of sensible differentiations that fit with community expectations and lived experience.

To give an example, the Act prohibits discrimination in sport in such broad terms that it would be unlawful discrimination to run a competitive sports meet in Victoria like the Olympics. However, there are several "exceptions" in the Act which allow sporting competitions to discriminate on the basis of physical abilities like strength and stamina, as well as allowing single gender competition.

In other words, while the Act seeks to give expression to the broad value of treating people who are in the same position in the same way, it is the balancing provisions or exceptions which make the Act workable. These provisions balance the value of equal treatment with all the other values our society prizes such as:

  • multiculturalism and pluralism accommodating and permitting the expression of different cultures and faiths (and people of no faith) with different values;
  • giving rewards for greater achievement or effort (competitive sports up to and including the Olympics and academic or other competitions which give such rewards are highly discriminatory);
  • giving special assistance to the disadvantaged which are not available to most people;
  • freedom of conscience and freedom to associate with those we wish to and freedom not to associate with those we don't want to even though that involves a differential treatment (for example Family Planning Victoria should not have to employ advocates for the Right to Life and vice versa).

Some 42 sections in the Act create different exceptions or balancing provisions which help balance the value of equality with these other values which our society holds dear.

Under the Act, discrimination can only occur if the unfavourable treatment is based on a protected attribute. The classic protected attributes were race and gender but the categories of protected attributes have been expanded greatly over the years and now include age, disability (impairment), political belief or activity, religious belief or activity, lawful sexual activity, pregnancy, breast feeding, physical appearance, sexual orientation and gender identity. The expansion of protected attributes brings with it complications for the policing of discrimination; hence the need for exceptions.

For example, it is reasonable to bar pregnant women from some carnival rides which might injure them or the child they are carrying, but it is discrimination under the broad definition in the Act. Another pertinent example: it is reasonable for one political or religious organisation not to employ people who hold and pursue starkly contrary beliefs to the organisation. But it is discrimination under the broad definition in the Act.

Problems with the "inherent requirements test"

Thus far, we have dealt with the question of discrimination itself, and the way in which exceptions in the Act allow for reasonable instances of discrimination. But what about the idea of an "inherent requirements test"? The new bill reintroduces the requirement for religious bodies, be they schools, churches, or otherwise, to demonstrate that the religious or doctrinal grounds upon which someone was refused employment is an inherent requirement to the particular role they were applying for.

However, there are a number of problems with this proposal, some of which will be outlined below.

First, the bill undermines the freedom of association of citizens to establish and maintain voluntary associations which express and promote particular views of what is good and right. Those views may be based on ethnic, cultural, religious or political values. Under the proposed bill the law would effectively require religious voluntary associations to accept and accommodate the views and conduct of some employees and, in the case of schools, any students whose expressed beliefs and conduct relating to gender and sexuality do not conform to the values which the religious association is designed to promote and model.

But wouldn't it be considered ridiculous if the law forced the Greens to employ climate change deniers as public spokespeople or call centre operators and put up with their internal and external advocacy against climate change? And yet this same principle is at play here. Under the proposed legislation the expressed values and conduct of many employees and students trump the values and ethos of the religious body or school.

Second, in many cases, especially with school students, these clashes of values are worked out sensitively in negotiations between the religious school and the student and parents. But in hard cases where a negotiated outcome cannot be reached, we need to remember that an individual employee or student with non-conforming values or conduct can resolve the dispute by moving to another school. For example, they could move to a large number of independent schools or any government school and find that their views or conduct in relation to sexual activity or sexual orientation attract no objection. But the religious body or school cannot go elsewhere. Its ability to maintain its ethos and values for its other members, students and parents in these matters is denied by the State and once compromised cannot be recovered.

Third, the proposed law is itself discriminatory. It is targeted only at religious organisations. Currently the Equal Opportunity Act, as unamended by the bill before the Victorian Parliament, gives similar exceptions to religious bodies and schools, political parties, political clubs and to clubs which operate principally to preserve a minority culture. All of those groups enjoy statutory exceptions to discriminate either in relation to employment or membership in order to preserve and protect their values, activity and culture - be it religious beliefs and activity, political beliefs and activity or their minority culture. However, if the bill passes into law only religious organisations will be affected.

For example, the Act as it currently stands allows the Greens political party to refuse to employ climate change deniers as policy spokespersons or call centre operators or accountants or in any other position. The Act allows a gay or lesbian club to refuse to have a straight person as a member without requiring any justification to a human rights commissioner, court or tribunal as to why sexual orientation should be a necessary condition of membership. Why is this bill targeted only at the freedoms of religious voluntary associations, while leaving untouched the freedoms of other cultural and political voluntary associations? The bill will enact into law a form of discrimination which is, in principle, the same as the kind it is trying to stamp out.

Fourth, because the bill is targeted at religious associations and schools, it limits the freedom of religion and conscience of those who adhere to the beliefs of the associations and schools. Advocates of the bill will cite the international human right of equality before the law and non-discrimination. But international human rights law explicitly protects the right of parents to ensure the religious and moral education of their children in conformity with their own convictions (ICCPR article 18(4)). Likewise the United Nations Declaration on the Elimination of All Forms of Intolerant and of Discrimination Based on Religion or Belief, article 5(2), states:

"Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his or her parents."

The general human right not to be discriminated against has to be understood in light of other general human rights, in this case the very explicit right to religious and moral education in conformity with the parents' own convictions.

Conclusion

In a pluralist democracy citizens are free to join with others and express and live out, through voluntary associations (including school communities), a shared ethos of what is right and good. Others may disagree with this shared ethos. However, the State should not try to force a single "right" view of contested matters such as sexual identity, orientation and sexual conduct onto the voluntary associations of citizens. If citizens do not like an association's ethos on sexual identity and sexual conduct, they do not have to participate in the voluntary association. They are free to associate with other people in other groups.

In Australian society we can live and let live with different voluntary associations taking different views on these matters as long as people are free to join or leave voluntary associations as they wish.

The proposed bill amending the Equal Opportunity Act will not encourage Victorians to get along with each other. It won't enable Victorians to live and let live. In fact, it is more likely to exacerbate division by creating legal weapons for forcing some voluntary associations to host or endorse views with which they deeply disagree.

Deep differences of moral vision will not be resolved by trying to legislate one view to supremacy and squashing others. Rather, we should accept that there are different views, and defend each other's rights to hold and live out different views. Importantly, we should also commit to respectful communication so we can understand each other and agree how to live together peacefully with our differences.

The law should encourage people to live and let live. If passed, this one won't achieve that, but will instead have quite the opposite effect.

  1. Pages:
  2. 1
  3. 2
  4. 3
  5. All

This article was first published on the ABC's Religion and Ethics page.



Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

4 posts so far.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

Mark Sneddon is the Executive Director of the Institute for Civil Society, a social policy think tank based in Melbourne.

Other articles by this Author

All articles by Mark Sneddon

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Article Tools
Comment 4 comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy