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How to fix anti discrimination law


Anti-DiscriminationA 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 RaynerMoira Rayner is a barrister and writer. 

Topic tags: Moira Rayner, anti discrimination laws, religious discrimination



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Existing comments

Thank you, Moira. The last paragraph might also include the misnamed, Christian Lobby' to which most Christians do not subscribe in any shape or form.

The Rev'd Patricia Bouma | 25 January 2013  

I agree with Ms Rayner here. These are good suggestions. The endlessly recurring kabuki - of plaintiffs complaining "How was I supposed to know when I took this job that my Salvation Army employer would disapprove of my polygamous marriage? Now I want a tribunal or court to issue an enforceable order telling them to stop imposing their religious beliefs on others who don't share them, because Australia is a pluralist society!" - would be avoided if religious bodies were required by law to publicise the fact they don't approve of people having sex outside traditional monogamous heterosexual marriage. I, for one, was surprised to hear that. Certainly the media never mention that. If such notice were given, people who don't share the repressive, rigid ideology of these patriarchal groups could - instead of wasting their time applying to work for CathEd, Vinnies, Salvoes, Anglicare, etc - focus on working for one of the many excellent charities that sexually permissive atheists have set up and keep going through decades of unpaid volunteer work. I'm sure Ms Rayner can name at least three of these, right off the top of her head.

Rod Blaine | 25 January 2013  

Nice one Moira. As to funding any religion a cent from the public purse - no way at all, and that includes taxes, rates, and work that should be done by secular institutions not religious bodies. Time they paid their way and became part of Australia instead of running a parallel state within our nation state.

janice wallace | 25 January 2013  

A religious school,forced to employ staff not supportive of the institution's ethos,quickly loses its identity, in fact if not in name. A significant number of these have been less than careful in choosing staff and have paid the price. Religious freedom implies the right of being able to educate your young. Having the ability to discern who your most suitable teachers will be and then employing them is an essential complement.

GREBO | 25 January 2013  

While agreeing with most of Moira Rayner's ideas about discrimination and equality of opportunity she fails to comment on 'the elephant in the room'. This is the huge, disproportionate and unfair opportunity for the rich and powerful to have their individual opinions on matters of public concern published and broadcast by all kinds of communication. An outspoken Australian billionaire is a current example. This problem may be difficult to solve but the first step would be to acknowledge its existence - and its power to distort public understanding and opinion.

Bob Corcoran | 25 January 2013  

Moira's arguments seem reasonable on the surface. Making religious institutions more transparent in their hiring and firing policies, would certainly bring attention to areas of discrimination in our society. It may even prevent some people from sending their children to religious schools or attending religious services or volunteering with religious social service organisations, placing greater pressure on these organisations to be more accepting of these people. But the fact is, currently, most of these organisations are accepting of alternative lifestyles, even if it's in contravention of the teachings of the religious institution and has to be done mostly informally. My worry is that by forcing organisations to be more explicit in their policies, you'd be placing more pressure on those people currently working in those organisations who might be living as gay or lesbian people, or in a de facto relationship. The likelihood of the Church changing its teachings in these areas is small, which means you'd be encouraging those the top of the organisation (e.g. Rome) to force those people out. And we're not talking about small employers here - the Catholic Church is the largest non-government employer in the country. To truly exempt anyone not living what's considered a 'healthy' sexual lifestyle from these institutions would cut out a massive amount of opportunities for anyone wanting a career in areas such as teaching or health care. It would also deprive those organisations of many people who could contribute valuably to them. In the end, I wonder if the harm caused by Moira's proposals would be greater than the good they seek to achieve.

Joseph Vine | 25 January 2013  

There is more to what religious bodies disapprove of than just sexual morality - why don't religious employers publish their views on the use of weapons and warfare? The bible clearly prohibits the use of weapons: Jesus said, " “Put your sword back into its place. For all who take the sword will perish by the sword." Yet many Christians join our armed forces to work in combat or as chaplains supporting combatants. And "sex outside traditional monogamous heterosexual marriage" also means that masturbation is prohibited - do religious employers have a right to sack staff if they masturbate?

AURELIUS | 25 January 2013  

Aurelius raises a red herring. There is zero chance that Cdl Pell will install surveillance cameras in the homes of Catholic school teachers in the hope of catching them masturbating, any more than Michael Lavarch would put hidden microphones in private homes to catch people saying racial slurs.

On the other had, if Aurelius is referring to teachers publicly discussing their private Portnoyan pastimes in front of teenagers (or younger children) in the classroom, then even the most deeply-stuck-in-1973 Whitlamite would probably object.

Rod Blaine | 25 January 2013  

Agree completely with Moira on the need for accountability of Churches for any discriminatory decisions. I would go further however and question the Christian basis of any unjust discrimination. The Australian Catholic Bishops should first ask what would Christ do. The Church should be demanding stronger anti-discrimination law, not abusing their influence by seeking to benefit from discrimination in a manner that unjustly affects individuals.

Peter Johnstone | 25 January 2013  

I commend this article to the Catholic church in general and to Jesuits too. I was very disappointed to read that Frank Brennan - usually a wonderfully intelligent champion of justice - is endorsing the Church's campaign for continued exemptions from the Act. Cardinal Pell's argument that Catholic schools, etc, can't maintain their values without flouting the law simply doesn't hold water. Right across the social spectrum organisations of all types manage to uphold their values without recourse to illegal discrimination. The church has an awful pall resting over it due to its patent inability to exercise justice in the sexual abuse cases. For the church to now make a plea for further exemptions from hard won laws guaranteeing justice for all looks pretty bad. How can you then claim to offer spiritual truths able to touch and liberate modern society? I am with the Anglican Bishop of Gippsland, John McIntyre, who David Marr quotes in the SMH: "How bizarre that the followers of Jesus Christ would oppose, and ask for exemptions from, a legal instrument that has at its heart a declaration of the dignity and value of every human life and the basic rights of every person."

Jennifer Crone | 25 January 2013  

Great piece Moira. I as a catholic cannot understand, and do not support, the discriminatory privileges being sought by bishops against vulnerably people. It goes against my understanding of catholic social justice and the biblical imperative to include the vulnerable. My daughter is a single mum. She has a stronger moral compass than many married couples I know, and dare I say stronger even than who purport toned our country!

Joseph Cauchi | 25 January 2013  

I'm disappointed that these exemptions were granted. Also,I would like some detail about why they were applied for in the first place. I can accept that Catholic schools must be able to employ teachers who will support the ethos of the Catholic school, even if not Catholics themselves. Do they need an exemption to do this? I've worked for several Catholic social welfare agencies who certainly did not discrimate against their employees on the grounds of religion, sexuality, age,politics or the rest. In fact, at the last one the staff included a Jew, a Hindu, a lesbian and an elderly person (me)! Practising Catholics were in a minority. This staff did - and does - terrific work with the marginalized and disadvantaged, funded partly by government grants. Their management would, I believe, refuse to discriminate even if they had a legal right to do so. So - what are our Bishops thinking?

Joan Seymour | 25 January 2013  

Yes, ROD BLAINE, I may have raised a red herring - but I didn't create it.

AURELIUS | 26 January 2013  

The comments from Joseph Vine & Joan Seymour provide a reality check to the question of exemptions and the idea of requiring written notice of discrimination which will/could be applied.

The Church living and working in the world necessarily faces some moral challenges. Insulating our large institutions engaged in secular activities from the secular world would further reduce the Church's influence in our world.

Ian Fraser | 28 January 2013  

Alot of people keep bashing catholic schools and institutions for our religious and ethical beleifs. in reality it is the Catholic institutions and organisations that provide so much more support and help to the margenilised. It is stated in all our doctrines and preached at schools. I was appalled to know that some community based centres running pre-schools and before and after school care centres celebrate Ramadan and Chinese New Year for its diversity but refuse to celebrate Christmas....as this is the way local councils have adopted their Diversity policy...rubbish! I have seen amazing Bishops set up beautiful places for young single mums so they are not alone, much nicer than the rubbish set up by our government. Let Catholics be Catholic, Jews be Jews, Budhists be Budhists, and let them all be taight by those that beleive the same thing they do, what is wrong with that! the last i knew, it is Catholics that teach about every religion in their high schools, that is diversity of thinking, what do they do in public schools....Oh yes and about accepting diversity, our current PM wont even enter parliament until the Lords prayer has been said, thats so disrespectful to any christian. Where is the respect for humankind, i dont care if they were reading out of the Koran or Torah, out of respect, i will sit and listen. Once our policies adopt diversity, maybe the law will follow.

Kay Ishak | 28 January 2013  

'For the church to now make a plea for further exemptions from hard won laws guaranteeing justice for all looks pretty bad? How can you then claim to offer spiritual truths able to touch and liberate modern society? Jennifer Crone, are you a member of the Roman Catholic church? If so, are you familiar with the statement in which Epimenides, against the general sentiment of Crete, proposed that Zeus was immortal? They fashioned a tomb for thee, O holy and high one. The Cretans, always liars, evil beasts, idle bellies! But thou art not dead: thou livest and abidest forever.For in thee we live and move and have our being. He was, however, unaware that, by calling all Cretens liars, he had, unintentionally, called himself one, even though what he 'meant' was all Cretens except himself. Thus arises the paradox that if all Cretens are liars, he is also one, and if he is a liar, then all Cretens are truthful. So, if all Cretens are truthful, then he himself is speaking the truth and if he is speaking the truth, all Cretens are liars. Thus continues the infinite regression.Likewise the paradoxes, the enigmas and the seeming contradictions found within Roman Catholicism are beyond measure.Yet, therein, for those who believe, the most precious pearl, fashioned by Truth and Faith, is found. For in 'Him' we live and move and have our being.

Bernstein | 29 January 2013  

While honesty, respect for the individual, responsibility for impact and the courage that's needed for transparency begin at home and re-educating conditioned adults is a very large challenge.... I say...Never give up!!! I appreciate your determination to publicly and privately expose these issues. Governing bodies need to be fully accountable and transparent especially those in any form of education.

adventurous | 30 January 2013  

Rod Blaine's comment (25 Jan) about sexually permissive atheists, while possibly an attempt at sarcasm, is a bit heavy handed and I'm not sure the point is relevant. I'm not surprised I can't think of atheist specific charities. There are many worthwhile secular charities that do similar work to worthwhile faith-based charities. The Smith Family, Care Australia, Red Cross and MSF come immediately to mind and there are others. Why would atheists want to reinvent the wheel? The focus should be on meeting a need, not the background of the donors and volunteers. The point of Moira's article would apply to all organisations. But I suspect some are less willing to be too open and accountable to the community.

Brett Gray | 31 January 2013  

Dear Bernstein, since as a woman I am excluded from the Roman Catholic Oligarchy there is no paradox involved my naming it as lacking in justice. Just as, in Epimenides' day, if it was his wife or slave who had called Cretans liars, that too would not have been paradoxical as women and slaves were not members of the polity. It is this inequality that the Catholic oligarchy seeks to perpetuate through exemptions from the anti-discrimination act. In my view, the secular society that abhors such institutionalised discrimination is closer to Christ.

Jennifer Crone | 02 February 2013  

.... Life returned, though in an altered material / spiritual state, the strange new but real body passed through the shroud and Christ stood resurrected, raised from death to Life.... And THIS is our hope of eternal life, which God, that cannot lie, promised before the world began.

Game Theory | 03 February 2013  

Jennifer Crone, if you were right, I would agree.

Bernstein | 03 February 2013  

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