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

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.