Equal Opportunity Amendments will Perpetuate Discrimination and Undermine Equality

Equal Opportunity Amendments will Perpetuate Discrimination and Undermine Equality

In opposition, the Victorian Coalition campaigned for a “stronger, fairer and safer” Victoria, but early hopes that Ted Baillieu would lead a government committed to fostering an inclusive and discrimination-free society are already beginning to fade. Over the weekend, the State Government committed to reforming Victoria’s Equal Opportunity Act 2010 in two ways. First, they’ll scrap measures designed to actively promote equality, including by stripping powers from the Victorian Equal Opportunity and Human Rights Commission.  Second they’ll expand the ‘permanent exceptions’ that give religious groups and entities – including those that provide public services using public monies - a free license to discriminate against de facto couples, gays, lesbians and single mums, among others.

The Government has announced these changes in the name of business sector productivity and the protection of the human right to religious freedom and belief.  On both counts Baillieu’s plan is fundamentally flawed.

The powers of the Equal Opportunity and Human Rights Commission to promote equality and to investigate and respond to systemic discrimination were introduced because reactive, complaints-based laws alone are not effective in eliminating unfair discrimination.

Complaints-based laws are passive until discrimination occurs, at which point they require individual victims to enforce compliance with complex legal standards through burdensome proceedings.  No matter what the outcome of these proceedings, the discriminatory frameworks, institutions and attitudes that gave rise to them are left intact.

Imagine if the Government’s response to crime was to require the victim to track down his or her assailant, fund and run the legal case against them and then keep an eye on their attacker to make sure he or she doesn’t strike again.

It’s uncontroversial that to properly address crime, workplace safety and consumer rights, we need well-resourced, comprehensive systems of prevention, regulation, enforcement and monitoring.  Why the fuss when the same principle is applied to tackling discrimination?

The Commission’s ability to conduct investigations, prosecutions and public inquiries into serious instances of systemic discrimination is an essential part of a proactive regime to promote equality.

What’s more, these measures are not a threat to a productive business sector.  In fact, in more equitable societies the economy also wins, with diverse labour markets boasting better productivity through enhanced innovation, expanded customer bases and reduced absenteeism and turnover amongst employees.

There is a rapidly growing body of economic, epidemiological and medical evidence that more equal societies are healthier, better educated and more productive and that discrimination is harmful not only to the individual, but to society as a whole.

The second of the Baillieu Government’s proposed changes is to expand the free licenses given to religious groups to discriminate against those who don’t share their religious beliefs or sexual morality.  These ‘permanent exceptions’ set religious groups apart from others who are subject to legal checks and balances that require them to show that any differential treatment is fair and reasonable.

If a school condoned the bullying of a child with a disability, we’d be appalled.  If a hospital openly refused to hire Liberal voters, there’d be outcry.  If a secular welfare agency fired their receptionist because they didn’t want a Christian on the payroll, there would be no question that the receptionist should be entitled to lodge a complaint with the Commission.

The fact is that the impact of religiously motivated discrimination extends far beyond the church walls, intruding into both the public sphere and our private lives.  Under the proposed changes, the law will allow publicly subsidised private schools to sack single mothers or expel gay or lesbian students – although we are reassured by the Australian Christian Lobby that this will always be done in “a loving way”.

These harms are felt by the broader community, so the broader community is entitled to expect a response from Government.

Baillieu has argued that subjecting religious groups to equality laws constitutes a violation of our international human rights obligations.

In fact, human rights law recognises that freedom of religion, like most rights, is not absolute.   This means that where it conflicts with other rights – such as the right to equality – religion is not an automatic, pre-determined trump.  Just as our right to privacy must be balanced against legitimate security and law enforcement measures, so too must religious beliefs be balanced against sometimes competing interests.

Overall, the proposed changes beg the question: why are the wish-lists of a small number of peak business lobbies and religious groups being prioritised over all others?  Why are the personal views of a few more important than equality rights for all?

Our anti-discrimination laws need to break down the legal, social and institutional structures that perpetuate discrimination, not reinforce them.  The proposed changes do the exact opposite.

Rachel Ball is the Director of Policy and Campaigns at the Human Rights Law Resource Centre.

This opinion piece was written for and first appear in The Age.