A spokesman for the Australian Catholic Bishops got stuck into the Government's 'failure' to protect religious freedoms on Thursday because its new human rights consolidation bill didn't give the Church new freedoms to discriminate. This was brave, because other commentators have asked why big church institutions should enjoy any exemptions at all.
Everyone has an opinion, and this is mine, as a workplace law practitioner for 40 years.
Anti-discrimination acts are meant to protect vulnerable and marginalised people, not corporations or dominant ideologies. The employers I represent reap the benefits of understanding that diversity and inclusion are brilliant for business and productivity. Equality of opportunity breeds respect for the rule of law and the common good.
The bill has missed simple opportunities for real improvement. It does not, for example, fix up the messily inadequate response to racial and religious vilification. I'd rather see a no-fault, taxpayer-funded, independently crafted media response in the victim's voice in response to vindictive, stupid or lazy misrepresentations about race and culture inflicted upon readers of the likes of Andrew Bolt or those who listen to the likes of Alan Jones.
Public trials, fines and injunctions don't change bigots' minds. We have moved past Reg Ansett's view in 1978 that equal opportunity for a woman pilot would be an impediment to business success, to the understanding that avoiding discrimination and fostering diversity is all about balance.
I would like to see three additions to this bill.
First, a provision to make religious institutions and schools accountable for their claim of privilege.
Just as we protect a person's right to hold or decline to believe in state-approved or unpopular or controversial religious or spiritual beliefs and practices, we set limits on it: that they don't interfere with the rights and liberties of other vulnerable people.
So, if a 'religious' school seeks to discriminate on the usual grounds against women and de factos and gays, I think they should:
(a) state in a very public way why this is a reasonable and proportionate means of achieving a legitimate end, the protection of religious freedoms
(b) only be entitled to make that claim if it is actually under the spiritual direction and overview of a disciplined faith group, and
(c) be obliged to do so, if it is in receipt of government funding to provide services.
The bill already prohibits discrimination by religious service providers in aged care settings, but this should extend to all government funded service delivery to vulnerable groups, such as gay and lesbian young people and families or single mums and same-sex dads, in housing and homelessness services, schools and indeed any social or community service.
I also rather like the somewhat cheeky submission by Human Rights Law Centre that religious organisations that run schools or services should be required to give written notice to any of their actual or potential customers, employees or students that it plans to or already discriminates on particular grounds that might affect them, and should be obliged to disclose this to its funders, at least if they are publicly funded.
This would ensure accountability to the community. Would you shop in an op-shop that will not employ gay women or people of another faith? I wouldn't.
Second, the Human Rights Commission needs teeth.
In some states, state-based anti discrimination bodies haven't really investigated complaints for years. In Victoria the Commission may now do no more than offer an aggrieved, vulnerable person the opportunity of entirely voluntary mediation. If that doesn't work, or the other party tells the commissioner to take a running jump, she must tell them to pop off to VCAT and prove their case in a real court all by themselves.
The Australian Human Rights Commission should have the right to instigate investigations into systematic discrimination, without the approval of the Attorney-General or a court. And it should have real powers.
For instance were it to find systematic, sex-based harassment or discriminatory bullying in a particular industry, it should be able to issue the equivalent of an OH&S 'PIN' notice, requiring an organisation to stop doing anything at all until it has taken urgent action to amend a dangerous practice or, like the Fair Work Ombudsman, have the power to enter into an enforceable undertaking that a party will take particular steps to comply with a law.
It should have the power to refer an unresolved matter and seek a court-ordered resolution of identified problems. The critical point is that the system should not rely on brave or desperate complainants, but on an authoritative and respected source of best practice for good governance.
Thirdly, the Commonwealth must be brave enough to ensure through legislation that its human rights watchdog cannot be abolished, bled to death with budget cuts or staff freezes, or afflicted with political interference.
A human rights commission may change attitudes and behaviours through negotiation and mediation and education only if it has the respect of its community. No earthly power can set its own rules and legitimately claim infallibility, and this applies to royal commissions, human rights commissions, religious orders and schools and, I dare say it, Catholic bishops as well.
Moira Rayner is a barrister and writer.