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The end of equal opportunity in Victoria


Deborah Wardley (left)

Equal opportunity commissions were set up in the 1970s because governments accepted that people who lacked equality before the law, or who were marginalised or persecuted because of their race or sex (and later, disability), were  not in a position to sue. As a resource for those who could afford to use them, courts were going way beyond their reach, and their confidence. 

The new commissions gave the disadvantaged the right to make a complaint to an independent authority which could help the respondents understand the clearly established human right to equal opportunity. It would also establish the facts, and then facilitate confidential conciliation. 

That way, attitudes could and did change, because the new Commissioners and their Boards had real powers. They could investigate, as well as protect people against victimisation, and insist on dispute resolution.

The Commission also had authority. The Commissioners could dismiss frivolous or misconceived complaints because they were the gatekeepers to the tribunals. 

In 1978, airline boss Reg Ansett didn’t fancy employing the best qualified pilot because she was a woman (and he as a businessman didn’t want a girl flying him about). Deborah Wardley (pictured left) took him on through the Victorian Equal Opportunity Board. Ultimately she won in the Victorian Supreme Court, and the significance of well-toothed watchdogs became nationally and internationally appreciated. 

Victoria was a leader in those days.

However the state's current Attorney General Robert Clark is no defender of the rights of the weak. Yesterday came the news that the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) members had resigned en masse, because he refused – after a three month delay – to accept their unanimous recommendation for their new Commissioner. He wants somebody else. 

So much for the credibility of the new Commission.

In 2011 Clark gutted the Equal Opportunity Act by removing the autonomy of the Commissioner, who is now a public servant reporting to the Commission. This is the Board whose decisions he has now also dismissed. He also amended the Act so that the Commission must not only be answerable to the executive instead of the parliament, but also cannot instigate the investigation of complaints of systemic discrimination without the approval of the Victorian Civil and Administrative Tribunal (VCAT).

The Commission’s only ‘power’ is to ‘educate’ the public (Reg Ansett didn’t learn anything until his defence was dismissed). Those who submit ‘issues’ may enjoy the feeble opportunity of voluntary, hands-off mediation. 

No longer does the Commissioner have the authority of the Act. The respondent no longer has to offer any explanation for the treatment that is the subject of the complaint. Nor is he or she obliged to participate in mediation. The aggrieved – either side - can bypass the Commission entirely. Those who perceive that they have been treated unfairly by a bully or bigot must establish their claims in the VCAT.

The vaunted power of the Commissioner to conduct investigations without a complaint in cases of apparent systemic discrimination was neutered by Mr Clark’s inserting a statutory obligation that the Commission obtain VCAT’s permissionham

An ‘equal opportunity and human rights’ commission that can be overridden by an Attorney General who states publicly that he does not ‘believe’ in the Victorian Charter of Human rights and Responsibilities lacks even symbolic value. The Victorian Equal Opportunity and Human Rights Commission is the only body with the responsibility to advise on how the charter should be interpreted in court cases. It also monitors its operations and reports to the Minister.

The Commission members have resigned, and rightly so. The Commission is a shell, a betrayal of the purposes of  Rupert Hamer, the great Liberal Premier who set up the Equal Opportunity Board and appointed its first Commissioner. He established it in 1977 in the name of the conservative, liberal values of giving voice to the voiceless, justice for the marginalised, respect for the rule of law, and guidance on their civic responsibilities to employers, educators, service providers – and governments..

The Baillieu government has fulfilled the desire of the Kennett government when, in 1993, it acted to remove the autonomy and authority of the then Commissioner for Equal Opportunity. 

I had drawn the public’s attention to the attack on the Equal Opportunity Office’s powers, by seeking an injunction to prevent Mr Kennett’s government from decommissioning all women’s prisons, and placing the women prisoners in the Jika Jika division of Pentridge Prison. There they would have been doubly confined within a unit described, after a fatal fire in it just five years earlier, as unfit for human habitation. 

I did so because I had the power, vested in me by the Act and the then Equal Opportunity Board President Margaret Ritzkalla, to investigate allegations of discrimination made by women prisoners detained in a men’s prison, to report and to seek to resolve the issue by negotiation. My research showed that women detained with men in prisons designed for a single sex were not only discriminated against by such double detention but their health suffered, so badly that they tended to kill themselves. 

I tried to resolve it as the Act then required, without success.

When I asked for the injunction – and told the people of Victoria that I had done so, and why – the people of Victoria spoke with one voice. They agreed that the plans were cruel. The projects were abandoned without the need for an injunction.

There was a price, which has come to be paid this week.

At about the same time, I had received complaints from Aboriginal students who had been excluded from secondary schooling after the closure of Northlands Secondary College. There they had achieved great success in education. Northlands then a unique learning environment for students who had experienced dispossession and exclusion and poverty. Aboriginal students throve and succeeded there because of its supportive environment, innovative and flexible teaching methods and its strong connections with students’ families and the local community.

The Kennett Government closed it down in order to save money, the same argument put for the closure of women’s jails. Mr Kennett publicly instructed me to reject the complaint because in his view there was no right to complain about the discriminatory effects of government decisions driven by economic policy. 

There was no way to resolve this through conciliation either. But after the Board said it was indirectly discriminatory on the basis of race to set up an education system without a ‘Northlands Secondary College’ in it, the children went on to the Victorian  Supreme Court to assert their right to complain and be heard. . 

In a monumental decision brought down two years later, the Victorian Court of Appeal upheld the right of Aboriginal children, who had been deprived of equitable access to education by the one school that took their experiences properly into account, to enjoy the fruits of the decision in their favour. Meanwhile, the Kennett Government set up ‘koori’ colleges especially for Indigenous students. Unfortunately we know the result: a cohort of Northlands pupils was lost.

The VEOHRC is an empty shell, because of the conscious act of a man who ‘believes’ that human rights are a bad idea, and that their watchdog should be tamed. I hope that Mr Clark’s personal choice for Commissioner does not accept the accolade that he would bestow upon him. There is no honour in this position.

In 1993, a couple of weeks after I moved to prevent the closure of women’s prisons, I found myself made ‘redundant’ in the ‘restructure’ that was quickly announced. I have never regretted it. Sometimes a job is more important than the individual who holds it. But the other price was the rapid undoing of the powers of those administering the Act. It is now complete, and people of Victoria are the weaker for the ‘human rights watchdog’ that has been made a lapdog. 

To those affected by this process – this interference with the ‘independent’ equal opportunity and human rights ‘commission’, this swatting down of the body meant to create democratic conversations about power, by the man responsible for the rule of law in Victoria – I say this: you have a role in the battle for our representative democracy. Take up that struggle.

Equal opportunity and anti-discrimination bodies have been attacked and undermined from the day they started. They were then, and are now, watchdogs on human rights and civil liberties that were accessible to ordinary people, respondents and complainants. We have watched these bodies decay, and high-profile litigation take their place. This is not the way to settle disagreements about respect, equality, justice, discrimination, or victimisation.

This is the way the watchdog ends: not with a bark, but a whimper.

Moira RaynerMoira Rayner is a barrister and writer and former Victorian Equal Opportunity Commissioner. 

Topic tags: Moira Rayner, human rights, discrimination, equal opportunity, Victoria, Attorney General



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Existing comments

Thanks again for the fire and the passion, Moira. It is reasonable to assume that a majority of people who needed the HREOC will not be able to pay to go to VCAT and have little hope of getting legal aid. Let's keep cutting down on the weaker, poorer, needier...maybe, if we're lucky they'll just give up and die...the way we're cutting down the acutely mentally ill, by only treating fewer than 40% of them in the Mental Health System, thereby increasing preventable suicides and saving us more money! Nobody notices that. Bailleau, Clark and like thinkers...I hope you all have an experience of being needy, poor, helpless, unseen, stigmatised!

Caroline Storm | 28 June 2012  

This is the way the world ends This is the way the world ends This is the way the world ends Not with a bang but a whimper. T. S. Eliot, The Hollow Men

Bob GROVES | 28 June 2012  

Excellent article Moira, we need your voice now more than ever - would you mind having a chat with the Greens about the refugee situation?

Felicity Costigan | 28 June 2012  

Good on ya Moira. Thanks for outlining so clearly why an independent and enabled Human Rights Commission is needed, is helpful, and only feared by those who wish to deny to others their human dignity, rights, and ability to contribute to our society.

Gsry Bouma | 28 June 2012  

Excellent and so clear. Thank you.

Liz Hepburn IBVM | 28 June 2012  

The author is more interested in an emotional response to so called 'victims' than a practical response. It is a highly competitive world and common sense must triumph not feelings. I don't know how the author came to the description in the article about the pilot being the "best qualified." Is the author going on how many hours this pilot has logged, or her exam results in all the exams required to hold a Commercial Pilot's Licence, her spatial ability, her ability to be a good stick and rudder pilot, her ability to handle pressure, loyalty to the airline company that employs you, how many years you are prepared to fly for the company that pays for your trainhg into more sophisticated aircraft, your whole attitude to flying, your strength to hold full rudder when you lose an engine in a twin engine plane etc.. There is no such thing as "best qualified" when it comes to being a pilot. It is a totally subjective decision. Let the employer decide who is 'best qualified', after all no successful employer is going to want to have to hire a person they consider not to be suitable to the job they want done.

Trent | 28 June 2012  

Trent trots down the rhetorical sidetrack - with the usual false dichotomies: emotional vs practical; common sense vs feelings. You either agree with his view of the ('highly competitive') world or you engage in 'totally subjective decisions' about competence.

I would have thought that assessing the competence of a pilot is a totally objective matter and if highly competent women pilots are applicants then it's in the best interests of both employer and passengers to make sure they are employed rather than a less competent male pilot simply because of his gender.

Moira Rayner's article warrants a more considered reaction. It is a matter of grave concern when the Attorney-General feels he knows better than an expert dedicated panel of selectors who is the best person for a job. If Trent wants to run with dichotomies how about "best qualified" for the job of Commissioner as judged by an expert panel versus one individual's personal and politically-based preference?

Frank Golding | 28 June 2012  

This is an excellent article: coherent, historically grounded and citing relevant examples.

I'm puzzled by Trent's comments. What point is being made with this list of skills and aptitudes? Surely it is possible to assess pilots' qualifications and competence by some measure that is not simply an employer's subjective judgement. Is Trent suggesting that a woman could not meet his criteria? The comment is reminiscent of the anti-equality arguments that ensured generations of sex discrimination (and 'race' discrimination as well).

Myrna | 28 June 2012  

Thank you Trent.
Next time I apply for a airline pilot position in this little ol macho world I know just who to consult!

Pam | 28 June 2012  

Trent doesn't like women being sky pilots in any sense.

Penelope | 28 June 2012  

So Robert Clark is ''no defender of the rights of the weak''? That's odd. I thought he was a staunch advocate of the rights of unborn children not to be killed? How weaker can you get than being dfenceless in the womb? Perhaps the failure of the VEOHRC to defend the rights of unborn Victorians has eroded its credibility. Why should those who have failed to defend the most defenceless of the defenceless complain when they find themselves with their back to the wall?

David Kehoe | 28 June 2012  

I agree with Trent, and perhaps with additional reasons. I'm fundamentally a believer in the free market ("capitalist acts between consenting adults", as Bob Nozick so eloquently put it.) Basically, I say, let the employer and employee decide their agreement on their own terms. The verdict of history is that the unencumbered free market will forensically determine the biases of employers or employees in their decisions and punish them accordingly. If the employer or employee wishes to a priori exclude competent women, or men, or redheads or blondes, or homosexuals, or boat people, or whatever, then ceteris paribus, he or she will lose profits or wages to those who don't make such distinctions. Of course, there is a moral level beyond all this, but that is another topic. But the idea that there is some identifiable gold standard of objective, Spring-Street-divined "equal opportunity" for anyone as urged by Moira and others - however sincerely held their beliefs - is patently ridiculous. So I welcome the possible impending demise of this Orwellian Equal Opportunity Commission and all its pomp. If only the so-called Human Rights Commission (Victoria) were on the same thin ice, we'd all be much more secure in our natural rights. Alas, this incredibly spineless, invisible Ballieu administration is nothing but a cruel hoax.

HH | 28 June 2012  

I say HH -I disagree - the verdict of history is that the unencumbered free market has brought us to the brink of disaster and in some cases disaster, in almost every area of human life from economics to climate change to over population.

Dally Messenger | 01 July 2012  

What a pity the mentioned human rights and equality opportunity laws, doesn't include those in religious life.
Bringing to mind the franciscan friar, refused a Rescript of Ligitimation #1139 for his child and the mother, never rescinded at his last breath and calling from the grave.

L Newington | 01 July 2012  

Yes unfortunately typical action - the what - and the why - does this emanate from a sense of entitlement of those who by fair means or foul are 'above' those for whom they legislate?

hilary | 02 July 2012  

Thanks, DM. I put it to you that it's the retreat from the market which has brought humans to the brink of disaster or into famine and poverty. Think: North Korea v. South, Red China v Hong Kong, Soviet Union v. post-WWII West Germany etc. The correct description of "overpopulation" is "underproduction". Scratch just about every "overpopulated" regime (let's exclude war zones) in the world today and you'll find an anti-market government characterised by high taxes and/or regulation, and often into corruption, all of which cripples the innate human drive to produce. Capitalist Hong Kong has the highest population density in the world, and has had so for years. No "overpopulation" there. Also, the anti-market regimes of the 20th century (Soviet Russia, Red China, etc) were by far the worst polluters. Climate change? Let's assume dangerous man-made global warming cause by greenhouse emissions exits(I don't but that's another story). How an unencumbered market would actually deal with this a priori is hard to predict - after all, up to now the market left to itself has usually come up with brilliant solutions to a host of problems (think: the sewing machine, double-entry bookkeeping, mobile phones etc) Statist regimes suppress innovation and original thinking. Why would we suppose governments would do better on this one? They certainly haven't done anything so far for global temperatures, yet are unanimous it's the "moral issue of our time".

HH | 02 July 2012  

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