No divine right to discriminate

If you really want to test your faith in politics, try reading Victorian MP Geoff Stewart’s biblically orientated maiden speech.  Shaw acknowledges the original owner of the land – not the Wurundjeri people, but ‘God, the Creator, the God of Abraham, Isaac and Jacob, the God of the Bible.’ ‘What a blessing,’ he declares, ‘that the Creator has given us stewardship of this place, and what a responsibility we have to govern here in Victoria and govern well.’ Presumably, Shaw means that humans have divine stewardship of the earth, rather than the government having God-given stewardship of the state of Victoria. But his speech is a little confusing,  ‘I am glad to be here as part of a new coalition government that knows the difference between righteousness and self-righteousness… we are on the common sense express, where we will carefully assess our spending decisions, knowing we are stewards of Victorian taxpayers’ money.’ So the new government, too, is a steward, and there is a righteous quality to their economic restraint. 

On Sunday 7 May 2011, The Age reported that Shaw, the member for Frankston, had described homosexuality as a sin tantamount to molesting a child, dangerous driving or murder. Shaw made these comments in response to an email from articulate, cluey 20 year old uni student Jakob Quilligan, who had written to his local member to protest against the Baillieu government’s new equal opportunity bill, which rolls back some of the Brumby government’s substantial anti-discrimination law reforms. The next day Shaw emailed Quilligan offering a half-apology [full email here]. He said that he ‘apologised and regretted any offence caused,’ but also, rather disingenuously, claimed that ‘the [Age] article does not reflect my views,’ even though The Age had quoted his email verbatim, and made the whole email exchange available online. 

It was not until six days later, on Friday 12 May, when questioned about the issue in parliamentary budget estimates hearings, that Premier Ted Baillieu expressed disapproval of Shaw’s comments, reaffirming his support for the gay community and admitting ‘(we have to be mindful) that language and commentary can have an impact and people do sometimes get it wrong.’ While better late than never, this equivocal statement implies Shaw’s comments were an excusable ‘mistake,’ and understates the damaging impact of the comments amongst a gay and lesbian community which suffers from disproportionately high rates of depression and self-harm. By failing to speak out early and strongly against Shaw’s comments, Baillieu missed the opportunity to reinforce one of his positive initiatives in the area – a budget allocation of $4 million for suicide prevention amongst young gay and lesbian people.

Baillieu is thought of as socially progressive– while opposed to gay marriage , he supported the Brumby’s abortion law reforms and the laws allowing same-sex couples to register their relationship. Leslie Cannold even urged Victorians to vote for him in the 2010 state election on the basis that preserving the influence of small-l liberalism in the Liberal party was essential to create a political space where socially progressive policy could be implemented. However, the new equal opportunity bill, introduced into parliament on 3 May 2011, demonstrates that the Baillieu government is still strongly influenced by conservative religious groups.

The bill allows religious schools and organisations to discriminate against employees on the basis of religion, sexuality, sex, marital status, parental status, gender identity or lawful sexual activity (this might cover extra-marital affairs or prostitution) where it is necessary to ‘conform with the doctrines, beliefs, or principles of the religion’, or to ‘avoid injury to the religious sensitivities of adherents.’ It removes the Victorian Equal Opportunity and Human Rights Commission’s power to conduct public enquiries into issues of systemic discrimination and watering down its investigation powers. There are also a number of other changes warranting detailed scrutiny, including changes to the Commission’s governance arrangements, exceptions relating to youth wages, political clubs and single-sex sporting competitions, and amendments to the obligation to make reasonable adjustments for people with disabilities.

The bill reverses some of the changes made by the Brumby government in March 2010, when after a long process of review, Attorney General and social justice reformer Rob Hulls, introduced the Equal Opportunity Bill. The Commission was given the powers to conduct public enquiries and initiate investigations without first requiring an individual complaint. The law and complaints process were simplified, allowing for more flexible, speedy, dispute resolution. There were a number of other significant changes, including removal of the blanket exception for businesses with five employees or fewer. 

In what was reported as a compromise with right-wing religious groups, the Brumby government’s bill did retain the exceptions for religious schools and organisations. This meant, for example, that a religious school could still rely on the exceptions to expel a student who admitted that he was gay, or that a furniture shop run by a religious group could refuse to serve a gay couple. Whether or not these examples legally fit within the exception (i.e. whether these actions would be considered necessary to conform with religious beliefs or avoid offence to religious sensitivities) is almost irrelevant given that the very existence of the exceptions is sufficient to deter people from challenging discriminatory decisions. 

The Brumby government removed attributes like disability and age from the scope of the religious exceptions. In practice, this was an immaterial change, given that the attributes of religion, sex, sexuality, marital status, parental status, gender identity and lawful sexual activity, which were retained in the exceptions, represent the most likely bases for religiously based discrimination. One significant change the Brumby government did make to the exceptions was to limit them in relation to employment. Under the 2010 bill, religious schools and bodies could only discriminate against employees or job applicants where conformity with the religious doctrines, beliefs, or principles was an ‘inherent requirement’ of the particular position, and where, because of an attribute covered by the exceptions (for example sexuality, unmarried status, or different faith), the employee couldn’t meet that requirement. The Australian Christian Lobby had lobbied against  such a change.

The Coalition opposed the imposition of this ‘inherent requirement’ test and the widening of the Commission’s powers. Parliamentarians referred specifically to the concerns of religious groups including Australian Christian Lobby, Family Voice Australia, and the Presbyterian Church of Victoria. In April 2010, Baillieu met with the Australian Christian Lobby at parliament and confirmed, corresponding with their demands, that if elected, the government would restore the ability of religious schools and organisations to discriminate against employees and job applicants and remove the Victorian Equal Opportunity and Human Rights Commission’s powers to investigate discrimination.  He reiterated this promise to the Australian Christian Lobby and Family Voice  during the 2010 state election campaign.

The new bill implements this campaign promise. The Commission’s capacity to tackle systemic issues of discrimination – issues such as discrimination against indigenous people in accommodation, or discrimination against Indian people in the workforce – has been severely diminished. The reinstatement of employment exceptions for religious schools potentially means that a woman working at a religious school could be legally denied a promotion because she was pregnant. An applicant for a job as cleaner or gardener at a religious school could be asked to sign a declaration of faith, and turned away if they refused. Employees at church-run organisations could be denied career opportunities because they admit to being in a same-sex or de-facto relationship. This is despite the fact that these schools, and many religious-based organisations, receive public money.

One provision in Kennett’s 1995 Act was left untouched by both the Brumby and Baillieu government. It allows ‘discrimination by a person against another person on the basis of that person’s religion, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.’ This incredibly broad provision appears to offer a free-standing invitation to discriminate. 

Discrimination shouldn’t have a place anywhere, but especially not in publicly funded institutions. Geoff Shaw’s comments and the discriminatory exceptions in the Equal Opportunity Act reflect a system in which highly mobilised, well-resourced religious groups espousing a conservative, exclusionary view of Christianity, one which is not shared by the majority of Australians, exercise disproportionate influence over law making and policy. In this system, religious sensitivities are frequently given priority over human rights, valuing diversity, and treating people with respect and dignity. The circular story of the equal opportunity exceptions illustrates that without a strong community campaign, this is unlikely to change.

Find out more, and take action here.