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Jekyll and Hyde: the poor man’s Anti-Discrimination Bill

By Moira Clarke - posted Wednesday, 2 January 2013


If ever there were a piece of contradictory legislation, this is it. The draft legislation for the Human Rights and Anti-Discrimination Bill 2012 entices the reader with a smorgasbord of overdue changes, including new provisions for sexual orientation and gender identity . . . then promptly consigns half of it to the bin.

Areas of concern include:

  • an increase to limitations of free speech, and to the extent that certain of those limitations could be unconstitutional;
  • reinforcement of the notion that religious freedom implies the right to discriminate according to the tenets of that faith;
  • failure to protect the rights of Australians who do not adhere to any religious belief.
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In short, the draft legislation entrenches and introduces policies that do not hold up well within a liberal framework of human rights.

A bit of background is in order. The purpose of the proposed legislation is to consolidate and simplify analogous federal anti-discrimination laws, including the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Age Discrimination Act 2004 and the regulating Australian Human Rights Commission Act 1986. Provisions in the Fair Work Act 2009 are also taken into account.

One important change in the legislation is the new emphasis given to 'unfavourable', as opposed to 'less favourable', treatment of members of protected groups, a subtle but significant shift in meaning:

To avoid doubt, unfavourable treatment of the other person includes (but is not limited to) the following:
(a) harassing the other person;
(b) other conduct that offends, insults or intimidates the other person.

As James Spigelman notes, the definition is a carry-over from section 18C of the Racial Discrimination Act, prohibiting conduct that is 'reasonably likely… to offend, insult, humiliate or intimidate another person'. As if that were not more than sufficient, the new legislation removes the qualification that conduct must be 'reasonably likely' to offend or insult; now the claimant need only feel offended or insulted, whether or not anyone else would find such feelings reasonable!

Free speech and the prohibition of offence are essentially incompatible. This is of particular concern given the restriction now applies to an array of attributes, not just racial discrimination. Quite simply, free speech is allabout offence, and is a fundamental requirement for a liberal, democratic society. We would not enjoy the freedoms we do today were it not for the fact that abolitionists, suffragettes, civil rights activists and GLBTI activists were prepared to offend the proponents of the status quo, and in some cases to pay a heavy price, to win those rights we now all take for granted. For this reason, free speech is considered sacrosanct in liberal democracies, and is a freedom that Spigelman claims we have an international obligation to protect: 'We would be pretty much on our own in declaring conduct which does no more than offend to be unlawful. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.'

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There is certainly no right not to be offended, and this is where things get tricky - both political opinion and religion are two attributes that are protected specifically for the workplace. Now, it seems likely these were originally introduced to prevent employers from refusing employment or otherwise discriminating on the basis of a person's religious or political persuasion. However, given the aforementioned proscriptions on offending and insulting, we now have an interesting situation in which it becomes risky to discuss politics around the coffee machine, for fear of causing offence to co-workers and being hauled off to the Commission. If some columnists are getting upset about this, they are probably on to something; it could be that the proposed legislation is unconstitutional and could fail to withstand scrutiny by the courts.

Religion, meanwhile, has ensconced itself into the Australian political system. To gag the criticism of religion is synonymous with the smothering of open political debate. Workplace blasphemy laws could well be unconstitutional too.

Since religion is and will continue to be a protected workplace attribute, one might assume that the religious are expected to return the favour, so that every other protected attribute is protected within the realm of religion. To some extent, the draft legislation treads that path. It is with great relief that we learn that religious providers of aged care will no longer be permitted to discriminate against their elderly residents, including persons of alternative sexual identities and sexual orientation. The fact that, currently, such providers can still deny the aged GLBTI community basic fairness and decency is a disgrace.

The deliverance of a morsel of humanity to the elderly is certainly cause for celebration; unfortunately, that's as far as it goes. Exemptions have been written into this document to enable religious providers of all other social services to continue to avoid compliance with impunity, and to do so even when they are in receipt of government funding.

Consider the following scenarios. A qualified schoolteacher can be denied employment or removed from existing employment simply because he is gay, despite the fact that neither religion nor sexuality has anything to do with the subject he teaches. A student enrolled in a religious school can be expelled for the same reason. An employment service, run by a religious organisation, can discriminate by refusing to itself employ individuals from certain groups. Catholic-run hospitals in Australia operate according to a code of 'ethics' approved by the Vatican. The results? In such hospitals, public or otherwise, emergency contraception cannot be supplied to victims of sexual assault, nor will the patient be referred to the Rape Crisis Centre where contraception can be administered. As medical ethicist Leslie Cannold has pointed out, a woman in a public hospital run by the Catholic healthcare system can be refused both an abortion and a referral to another provider, even when her health is at risk. This is not a hypothetical situation; in 2010 staffers at a Catholic-run American hospital were sacked for making the decision to provide an abortion to save a woman's life. Savita Halappanavar was not so lucky. In October 2012 the young Hindu dentist died of septicaemia at an Irish hospital which allegedly refused to perform a termination that could have saved her.

Despite these and many more real-world examples, our government intends to enshrine exemptions from the law into law, specifically for religious bodies and religious educational institutions. Religious organisations can continue to discriminate on the grounds of marital or relationship status, sexual orientation, gender identity, any other religion, pregnancy and, incredibly, 'potential pregnancy'. The fact that here and now in Australia, in the 21st century, our government has drafted up an anti-discrimination bill which neatly spells out exactly how religious organisations can discriminate, in most cases at the expense of the taxpayer, is almost Pythonesque.

The impact of these escape clauses is profound, especially when considered in the context of decades of government funding for church schools to the detriment of the public school system, the privatisation of major government services, and the preference for religious organisations as government-funded service providers. Meanwhile, Catholic hospitals, both public and private, account for 10 per cent of all hospital beds in Australia, including in rural areas where no other choice is available. It might be possible to excuse the situation with healthcare on historic grounds, were it not for the enthusiasm of the WA Health Department to embrace the concept of Catholic-run public hospitals. The new Midlands campus will open in 2015 under the operation of St John of God Health Care, despite their refusal to supply certain essential procedures for women.

We have established that the draft legislation deals religious bodies a magnanimous hand. Religious individuals are less fortunate: religious institutions are free to deny employment to individuals of any other faith, when every other employer must, quite rightly, treat religious candidates with fairness. Even more alarming, the draft fails to establish any protection at all for individuals of no faith. The document states that each 'protected attribute is taken to include . . . in relation to a particular person-characteristics that the person has because he or she has the attribute.' Since non-religious people lack that attribute, it is difficult to see how the document's wording will afford such protection. This is a departure from the Fair Work Act 2009 that describes behaviour that discriminates 'because of, or for reasons including' the protected attribute.

With over 22 per cent of the population reporting as having 'no religion' in the 2011 Census, wording that explicitly protects all Australians would have been far more appropriate.

Our government is addicted to the idea that 'religious freedom' is less about freedom of worship, and more to do with granting organisations licence to curtail the fundamental rights of others. Despite our increasingly secular society, churches still wield such power that they can induce the state to adopt this position and its warped logic. The draft legislation for anti-discrimination, so-called, is almost surreal in its juxtaposition of the protections of inherent human conditions with continued pandering to mediaeval institutions that seek to undermine those rights, while retaining their own. Over time, even the ability to question those institutions could be eroded, given the accelerating push for the restriction of free speech, the very driver of progressive thinking that translates into the fight for human rights.

The draft for the Human Rights and Anti-Discrimination Bill 2012 is evidence of yet another missed opportunity. Clearly, this is one very confused piece of legislation.

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About the Author

Moira Clarke is a software engineer and is also on the committee of the Secular Party of Australia. Her main interest is human rights.

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Creative Commons LicenseThis work is licensed under a Creative Commons License.

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