That is an issue as those governments wrestle with a cultural pluralism and with advocacy by interest groups that demand exemptions in broad anti-discrimination legislation, typically privileging faith-based (or merely faith-labelled) entities. Those exemptions - a licence to discriminate - reflect the realities of politics and notions that religious belief/affiliation deserves special protection from a state that is secular or that lacks a particular faith's confidence that its truths supersede the truths offered by competing faiths. Discrimination law in Australia is thus bounded by magic markers, resulting in what some students of jurisprudence (and some victims of discrimination) regard as arbitrary, unfair and inconsistent treatment.
Such inconsistency - derived from politics rather than principle - is evident in the Victorian Attorney-General Rob Hulls' announcement of what one observer tagged "a controversial compromise" that allows the state's religious groups to continue to discriminate against single mothers, people who hold different spiritual beliefs and of course GLBTIQ individuals. (The mere existence of the latter, alas, outrages some religious individuals, including those who warn that the Sodom of the South will be engulfed by a tidal wave, destroyed by an earthquake or otherwise smited by a particular deity's wrath.)
The compromise, to be embodied in changes next year to the Equal Opportunity Act 1995 (Vic) that flow from the Charter of Human Rights and Responsibilities, is expected to protect the right of hundreds of church-run organisations (including welfare services, hospitals and schools) to refuse to employ or even provide services to people who they believe "may undermine their beliefs". That employment might be in positions, such as cleaners or technicians, where there is little or no opportunity for the stigmatised people to proselytise or otherwise undermine the belief or "religious sensitivities" of adherents of the particular faith.
The protection will allow the organisations to continue discriminating on the grounds of sexuality, gender identity, marital status and parental status. The groups will however be unable to discriminate on the basis of race, age, political beliefs and political activity, or disability. Discrimination regarding breastfeeding will also be prohibited.
We might ask whether sexuality or marital status are less fundamental identities than political belief or even race. The 'compromise' will serve to entrench discrimination in Victoria under the Equal Opportunity Act on the basis of "religious freedom". It preempts a report by the Scrutiny of Acts & Regulations Committee of the Victorian Parliamentary.
The state Human Rights Commission, in discussing the review of the Act, states that
The Equal Opportunity Act recognises that in order to operate in a balanced and fair and common-sense way in the community - sometimes exceptions need to be made. It recognises that not every situation is covered by a blanket law that makes all discrimination against the law.Do the exemptions, like exception applications', "advance equal opportunity" and more broadly promote a civil society that is not disfigured by the intolerance (an intolerance sometimes marked by assault, psychological harm and even death) espoused by some faith-based organisations? Are they consistent with the Attorney-General's acknowledgement in July 2009 that "Discrimination is not always an obvious intruder. It does not confine itself to unlucky individuals but instead can take root in institutional foundations. As a result, whole groups can be at a disadvantage" and that "some people argue the value of freedom of religion does not entitle religions to discriminate against the difference and diversity of others".
Exception applications need to show that they advance equal opportunity.
Exceptions and exemptions provide a way to balance people's competing rights and freedoms.
At that time Mr Hulls said that
I'm proud that, once again, Victoria is leading the nation by testing the limits of our equal opportunity legislation. It's no longer sufficient to accept the Orwellian proposition that "all opportunities are equal but some are more equal than others". It is time to recognise that barriers to participation may have to be removed if all Victorians are to have a genuinely fair go.Reliance on scarewords such as 'Orwellian' is never a good sign. In considering use of the magic marker in the context of Australian human rights law and workplace discrimination law it is difficult to refute the comment by academic Margaret Thornton in today's Age that the compromise is inappropriate.
In terms of a person's private life ... their sexual preference or marital status really has nothing to do with their ability to perform a job. Being able to discriminate on marital status is particularly absurd. It is really out of date. It really amounts to the policing of women because the focus is on single mothers, not on men.The Attorney-General's 25 September media release states that
Discrimination on the grounds of race, disability, age or physical features should not be justifiable by reference to religious belief. Such discrimination is not something religious groups want or need in relation to the practice of their beliefs.It is good to know that he knows what religious groups "want or need", although a sceptic might ask whether those groups - and society as a whole - need discrimination on the basis of marital status or sexual affinity. Mr Hulls noted that religious groups
would continue to be able to discriminate on other grounds including sexuality or marital status if it was in accordance with their beliefs. These proposed changes follow consultation with religious bodies and have the support of the Catholic Church.Realpolitik trumps rights?
