Review of the Discrimination Act 1991 (ACT)

Transcription

1 Review of the Discrimination Act 1991 (ACT) June 2014 Introduction Thank you for the opportunity to make a submission into the ACT Law Reform Advisory Council ( LRAC ) review of the Discrimination Act 1991 (ACT) ( the Act ). This submission will address selected numbered questions as set out in the LRAC s Consultation Paper. Freedom 4 Faith ( F4F ) is an organisation that was formed to educate the Christian church and wider public on issues relating to freedom of religion in Australia. F4F s leadership team includes senior Christian leaders from the Anglican, Baptist, Presbyterian, Seventh-day Adventist and Assemblies of God traditions. In this submission, Freedom 4 Faith ( F4F ) makes suggestions that seek to ensure that the principle of non-discrimination is appropriately balanced with other human rights, including rights that are central to maintaining a healthy multicultural society. It is particularly important in a multicultural society such as Australia that cultural and religious minorities are able to retain their identity and values, even where their identity and values may conflict with majority values. Articles 18, 22 and 27 of the International Covenant on Civil and Political Rights ( ICCPR ) guarantee these important rights and freedoms. Question 1 - Should the objects of the Act be amended? F4F acknowledges that the elimination of discrimination and the advancement of the principle of equality are important social values. However that begs the questions of what counts as discrimination and what is meant by 'equality'. Treating people equally is not the same as eliminating appropriate differentiation in treatment. In a great many circumstances, differentiation is both lawful and appropriate. This is why eight year olds are not allowed to drive cars, hospitals are sometimes established to serve only women, and members of the Liberal Party do not have a right to equal employment opportunity as political advisers in the office of a Labor government minister. Furthermore, the right to non-discrimination needs to be balanced with other human rights including freedom of association. An environmental group ought to be 1

2 able to exclude people opposed to the petrol tax from membership without being concerned that it will be dragged into court for discrimination on the grounds of political opinion. If the objects clause focuses only on the elimination of discrimination and says nothing about the limits of the right or how it is to be balanced with other rights, then there is a serious risk that other human rights will be violated. Question 2 - Should the definition of discrimination be amended in any way? The definition of discrimination provided in section 8 of the Act is problematic for two reasons. First, it is very vague and gives little guidance to the people who are meant to adhere to the anti-discrimination requirements. Subsection (1) (b) states that the provision does not apply to a condition or requirement that is reasonable in the circumstances. That is further explained as requiring a court to take account of: (a) the nature and extent of the resultant disadvantage; and (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement. One will often not know whether a condition or requirement is discriminatory (e.g. on the basis of age) until the Court assesses its reasonableness, second-guessing the judgment call of an employer who may be acting entirely in good faith. Secondly, it is problematic because there is no requirement to have a comparator. This means that a tribunal or court, in determining whether or not discrimination has occurred, need not compare the treatment of the complainant with the treatment of some other person, real or hypothetical, who does not have the protected attribute. F4F considers that the insertion of a comparator will ensure greater objectivity in the application of this test. Please also see F4F s response to question 47 for a proposed comprehensive definition of discrimination. Question 7 - Should harassment and vilification be included as conduct that is prohibited in relation to the same attributes as discrimination? Please refer to F4F s response to questions 30 and 31. Question 8 - Should there be a positive duty to promote equality? F4F considers it is necessary to balance any duty to promote equality with the need to promote the recognition of diversity and the choices that individuals, groups and organisations make to promote their identities and live in accordance with their values. Equality and diversity may pull in opposite directions. Respect for diversity involves recognising minority cultures and values and respecting the diversity of religious beliefs. That may mean accommodating conscientious objection to majority values or allowing groups to select employees in accordance with the mission or culture of the organisation. Failure to support the human rights guaranteed by Articles 18, 22 and 27 2

3 of the ICCPR means that some individuals and groups are not being treated equally. It follows that a positive duty to promote equality is problematic because it suggests that some human rights should trump other human rights. That goes against a long-standing premise of international human rights law that there is no hierarchy of human rights. A further problem with the idea of a positive duty of equality is that it is hard to know what it means in practice. Laws need to be written clearly and to make known to employers and other affected persons what exactly is required. Anti-discrimination law should be written with the small business owner, for example running a restaurant, shop or plumbing business, in mind. Churches and other religious organisations also need the law to be readily understandable. A positive duty of equality is a positive duty to advance a vague abstraction, for as we note in our answer to question 1, equality has different meanings and differentiation is often appropriate. A positive duty to promote all human rights would be unobjectionable, but the average employer or organisation would have no idea how to implement it. Guidance on these issues from the ACT Human Rights Commission would not necessarily reflect the intentions of the legislature on contested issues and could mire the Commission in controversy. Question 9 - Should the coverage of the Act be changed in any way? Should it prohibit discrimination in all areas of life with an exception for private conduct? F4F does not support moving to a blanket prohibition of discrimination in all areas of life with merely an exception for private conduct. Such a broad prohibition would create significant uncertainties in determining where the distinction between public and private should lie. This would create significant regulatory burdens for groups, such as voluntary and not-for-profit organisations, that bridge the divide between public and private. It is preferable to prohibit discrimination where there is a clear and established need to do so. It is no answer to this that the courts can determine the boundaries between public and private on a case by case basis, for the law needs to be comprehensible. Is a church community public or private? What about an ethnically-based social club or an organisation established to promote some common cause? A vague law imposes unreasonable burdens on small businesses and non-profit organisations to seek legal advice which may, in any event, be tentative and qualified. Litigation is very expensive. A law which no-one really understands can lead to risk-averse behaviour that impairs the exercise of other human rights or unreasonably burdens small organisations. Currently, the Act prohibits discrimination in the areas of work, education, access to premises, goods, services, and facilities, accommodation, clubs, and in responding to requests for information. 1 In doing so, it specifies the areas of public life that may be subject to government regulation. The list is already very broad. The Act also includes exceptions which safeguard certain activities because they are deemed to fall within the 1 See sections of the Act. 3

4 private sphere of our lives for example, in deciding who is to occupy residential accommodation in which we live. 2 Exceptions also exist to safeguard those instances when there is a legitimate purpose to discriminate for example, by preventing people of one sex from participating in a competitive sporting activity; 3 or excluding a person from a club on the basis of race if the club was established for members of a particular ethnicity, culture or race. 4 F4F submits that the Act s current approach of prohibiting discrimination in particular areas of public life, and then carving out exemptions to safeguard activities done in furtherance of legitimate purposes is adequate and should be retained. Voluntary organisations, which people are free to join or not as they choose, are in a special position because the ICCPR guarantees freedom of association. Please refer to the attached article by Professor Patrick Parkinson, University of Sydney, and Dr Joel Harrison, Macquarie University, entitled Freedom Beyond the Commons: Managing the Tension Between Faith and Equality in a Multicultural Society (Monash Univ. L.R. in press). The article helpfully explains the areas of life that ought to be subject to government regulation, and those that should not. 15. Should the Act s existing attribute of religious or political conviction be amended? If so, how? For example, should the attribute be separated into two attributes; religious conviction and political conviction; should the attribute be extended to the existence and absence of any of political or religious belief, activity, opinion and affiliation and Aboriginal spiritual belief or activity? F4F sees no need for the protection of religious conviction to be symmetrical. That is, F4F sees no reason to prohibit discrimination on the grounds of non-belief as well as belief. This is not because the rights of non-believers should be any less than the rights of believers. Rather it is because anti-discrimination law seeks to protect groups that have historically been subject to persistent, sustained and unjustifiable discrimination over time by the majority and who are still at risk of such discrimination. Only a minority of Australians continue to hold and actively live out a religious belief. The majority of Australians are either indifferent to matters of faith, agnostic or atheistic. There seems to be no risk of discrimination in Australia on the basis of non-belief. Questions Protected Attributes Among the protected attributes in section 7 of the Act are those which have long been protected by the law. However, there are a number of attributes included in the Act that are not justified on the grounds of historical discrimination i.e. there is no evidence that people possessing those attributes have suffered widespread and persistent discrimination. The case for regulation in relation to these attributes is not obvious. When one moves beyond justifying regulation based upon a past record of 2 Section 26 of the Act. 3 Section 41 of the Act. 4 See section 43 of the Act. 4

5 discrimination, there is no end to the number of attributes that might be added: e.g. weight, physical appearance or homelessness. Questions Should the vilification provisions in the Discrimination Act be amended? For example, should the coverage be for conduct that is done otherwise than in private, rather than in public? Should vilification be prohibited for other attributes? Should the test for what constitutes vilification be changed? Should amendments be made to the offence of serious vilification? Section 66(1) of the Act makes it unlawful for a person, by public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of people on the ground of race, sexuality, gender identity, HIV/AIDS status. F4F supports prohibitions on vilification that are carefully drafted and target the incitement of hatred or violence. However, F4F does not support extending the current prohibitions against vilification to the attribute of religious conviction. Expanding legislation in such a way is more likely to create division and increased tension rather than community cohesion. Religious vilification laws have already proved controversial in their application by encouraging litigation as the preferred method of dispute resolution. Consider, for example, the application of the Victorian Racial and Religious Tolerance Act Section 8 of the Act states: A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons. In Islamic Council of Victoria (ICV) v Catch the Fire Ministries (CFM), 5 the ICV claimed that CFM and two pastors had vilified Muslims in a church publication and seminar they had given on the topic of Islam. At first instance, the Victorian Civil and Administrative Tribunal (VCAT) found against CFM and the pastors and ordered them to make a public apology in the Age and the Herald Sun acknowledging, amongst other things, that they had vilified all Muslim people, their God, their prophet Mohammed and in general Muslim beliefs and practices. On appeal, 6 however, the Court found that the Tribunal had incorrectly interpreted and applied the Act and referred the matter back to VCAT to be reheard in light of the Court of Appeal s determination. The hearing never eventuated as the matter was settled through mediation. However, the proceedings had come at a great emotional and financial cost to the pastors and also had the effect of stifling reasonable public discussion on the topic of religion. 7 To address these concerns, F4F considers that the relevant exception provisions should apply to "a public act, done reasonably and honestly, for academic, artistic, scientific or 5 [2004] VCAT 2510 (22 December 2004). 6 [2006] VSCA For further reading on the subject of religious hatred legislation, F4F recommends Parkinson, Patrick Religious anti-vilification, anti-discrimination laws and religious minorities in Australia: The freedom to be different (2007) 81 ALJ

6 research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter, including on religious issues. Questions 34 - Should the exceptions for religious bodies and religious educational institutions be retained? For example, is access to exemptions a preferable alternative? There is an egalitarian argument which dictates that religious exceptions are concessions to the generally applicable law. In this sense, religious exceptions would be difficult to justify. However, it is necessary to consider what exceptions are and why they are necessary. Exceptions are not a means of justifying what would otherwise be unlawful discrimination, and they are not granted as the result of some political compromise. Rather, they are a mechanism that balances the right to non-discrimination with other fundamental human rights, such as freedom of religion and freedom of association. Religious exceptions do not exist for the pejorative purpose of excluding people, but rather to enable religious communities to exist and operate in accordance with their unique cultures and beliefs. These exceptions should be seen as a right of positive selection where the exception enables the group or organisation to achieve a legitimate aim (see also F4F s response to question 9), such as those protected by articles 18, 22 and 27 of the ICCPR. The right of positive selection is an issue for many faith-based organisations. It should not be misunderstood or misconstrued as a right to discriminate. For example, the right of positive selection of Christian teachers to Christian schools or Muslim teachers to Muslim schools is a right to choose people with a particular characteristic when that characteristic is important to the purpose of the school and is thus, from the school s point of view, a genuine occupational requirement. Characteristics that may be inherent requirements for positions in faith-based organisations include adherence to a code of conduct expected of those who profess the faith as it is understood by the organisation that runs that school. This principle also applies to groups and activities relevant to multicultural communities, some of which are religious in nature. Thus, F4F considers that exceptions for religious bodies and religious educational institutions should be retained, but proposes some improvements in how these exceptions are drafted (see F4F s response to question 35). Such exceptions ensure that the principle of non-discrimination is appropriately balanced with other human rights, including rights that are central to maintaining a healthy multicultural society. It is particularly important in a multicultural society such as Australia that cultural and religious minorities are able to retain their identity and values, even where the identity and values of a minority group may conflict with majority values. 6

7 Question 35 - If the exceptions are to be retained, should any changes be made to the scope or expression of these exceptions? For example, should the threshold for the exception be modified? F4F believes the language of the current religious exemptions in sections 32 and 33 are largely adequate. However, we would support making a slight amendment to section 32(d) Religious bodies. Section 32(d) currently reads: 'any other act or practice of a body established for religious purposes, if the act conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion' [emphasis added] F4F proposes altering this subsection to read: 'any other act or practice of a body established for religious purposes, if the act conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion' [emphasis added] This amendment is suggested because it is possible that a religious body may make a decision that is necessary to conform to the doctrines, tenets or beliefs of the religion in question but does not necessarily make out the requirements of the second limb. Similarly, there may be instances where a decision is made to avoid injury to the religious susceptibilities of adherents of the religion but a court or tribunal is not satisfied that the decision satisfies the first limb as the doctrines, tenets or beliefs are not sufficiently recorded. The purpose of these religious exceptions is to ensure that the right to freedom of religion, association and the rights and freedoms of religious minorities are adequately protected. Requiring religious organisations to satisfy both limbs before they are able to invoke the exception is unnecessarily cumbersome, and fails to appreciate the different ways that religious organisations operate. Question 36 Should the voluntary bodies exception be retained in its current form? If not, how should it be amended? For example, should the exception only apply to the provision of benefits, facilities or services to members of the body? Should restricting membership be treated as a special measure for which such an exemption is obtained? F4F believes this exception should be retained in its present form. This is an expression of freedom of association, and voluntary groups should be able to set their own membership criteria as well as determine who receives benefits etc in accordance with the intended purpose of the particular association. For example, a Korean book club 7

8 might only want a small membership base of 5 or so core members, but they should also be able to state that only people who speak Korean can attend their book club meetings (as non-members). The current exemption allows for this. Question 47 - Should the approach to exemptions in the Act be changed in any way? For example, should an exemption application be considered having regard to rights to equality and non-discrimination? Should there be any attributes for which an exemption to discriminate is not permitted? Should an exemption application be subject to a consultation and submission process? F4F questions whether it is appropriate for anti-discrimination law to protect religious freedom by means of exceptions from otherwise general prohibitions. As the Human Rights Committee of the United Nations has explained, conduct is not discriminatory if it is for a purpose which is legitimate under the ICCPR. 8 That is, the right to be free from discrimination sits alongside other human rights such as freedom of religion, freedom of association and the rights of cultural and religious minorities, and the definition of discrimination operates within that context. Therefore, F4F would support an approach developed by Professors Patrick Parkinson and Nicholas Aroney which moves away from the language of exceptions and rather builds the protection for religious freedom into a general limitation clause along the following lines: 1. Discrimination means any distinction, exclusion, preference, restriction or condition made or proposed to be made which has the purpose of disadvantaging a person with a protected attribute or which has, or is likely to have, the effect of disadvantaging a person with a protected attribute by comparison with a person who does not have the protected attribute, subject to the following subsections. 2. A distinction, exclusion, restriction or condition does not constitute discrimination if: a. it is reasonably capable of being considered appropriate and adapted to achieve a legitimate objective; or b. it is made because of the inherent requirements of the particular position concerned; or c. it is a special measure that is reasonably intended to help achieve substantive equality between a person with a protected attribute and other persons. 3. The protection, advancement or exercise of another human right protected by the International Covenant on Civil and Political Rights is a legitimate objective within the meaning of subsection 2(a). 4. Without limiting the generality of subsection 2, a distinction, exclusion, preference, restriction or condition should be considered appropriate and adapted to protect the right 8 The UN Human Rights Committee in General Comment 18, para 13 states that differentiation of treatment will not constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. 8

9 of freedom of religion if it is made by a religious body, or by an organisation that either provides, or controls or administers an entity that provides, educational, health, counseling, aged care or other such services, and either: a. it is reasonably necessary in order to comply with religious doctrines, tenets, beliefs or teachings adhered to by the religious body or organisation; or b. it is reasonably necessary to avoid injury to the religious sensitivities of adherents of that religion or creed; or c. in the case of decisions concerning employment, it is reasonable in order to maintain the religious character of the body or organisation, or to fulfill its religious purpose. 5. Without limiting the generality of subsection 2, a distinction, exclusion, preference, restriction or condition should be considered appropriate and adapted to protect the right of ethnic minorities to enjoy their own culture, or to use their own language in community with the other members of their group, if it is made by an ethnic minority organisation or association intended to fulfill that purpose and has the effect of preferring a person who belongs to that ethnic minority over a person who does not belong to that ethnic minority. 6. [the exercise of other protected human rights the exercise of which do not amount to discrimination against others, or the enumeration of other legitimate objectives that ought to be given specific legislative expression] 9. This definition explains what does and does not constitute discrimination without recourse to exceptions or exemptions. F4F believes that anti-discrimination legislation which is drafted on the basis of such exceptions or exemptions misleadingly presents religious freedom as a concession as opposed to a fundamental right. For this reason, F4F supports fundamental definitional change along the lines proposed. Question 50 As a matter of principle, should the government take a greater role in promoting the aims of the Discrimination Act and in enforcing its provisions? The government ought not take a greater role in promoting the aims of the Act unless the government also took a greater role in promoting other human rights, including the right to freedom of religion, freedom of association, and the freedom of religious and cultural minorities as articulated in articles 18, 22 and 27 of the ICCPR. There is a danger that promotion of the aims of the Act as it currently stands would lead to the public perception that the right to equality is somehow superior to other rights. Question 51(a) As a matter of principle, should primary responsibility be on individuals to complain about conduct they have experienced that is unlawful under the Discrimination Act? For example, should others be able to complain on behalf of another person? 9 This definition (with an additional element relevant only to federal law) was proposed by Prof Patrick Parkinson AM, University of Sydney and Prof Nicholas Aroney, University of Queensland in their submission into the Consolidation of Commonwealth anti-discrimination laws (2011). 9

10 F4F is wary of laws which permit persons other than individuals who have faced unlawful discrimination themselves to lodge complaints. Enabling others to complain on behalf of another person could see our courts and tribunals transformed into ideological battlefields. This is also likely to lead to an increased number of unmeritorious complaints, thus placing an unnecessary burden on the system and causing respondents unnecessary angst, inconvenience and cost. Question 55 What requirement, if any, should there be on the ACT to publish reasons in matters under the Discrimination Act? F4F submits that reasons regarding matters heard under the Act must be published in order to ensure proper access to justice. Publishing reasons for decisions is vitally important to help organisations within the ACT to understand the scope and application of the anti-discrimination laws to which they are subject, especially given the vagueness of the current legislation Question 56 What provision should be made regarding the burden of proof in matters under the Discrimination Act? For example, should the respondent be required to show that a protected attribute was not a reason for conduct that has been shown to be unfavourable? F4F considers that at the very least the applicant needs to prove that they have a protected attribute and that they have been subject to unfavourable treatment. These are within the applicant s capacities to demonstrate. Conclusion Thank you once again for the opportunity to contribute to this inquiry. F4F received late notice of this inquiry. In light of this, please contact us if we can further clarify any of the responses contained in this submission. executiveofficer@freedom4faith.org.au. Attachments Dr Joel Harrison and Professor Patrick Parkinson, Freedom Beyond the Commons: Managing the Tension Between Faith and Equality in a Multicultural Society, Monash Law Review, Forthcoming,