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Equal Opportunity Amendment (Religious Exceptions) Bill 2016

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Sam Hibbins MP
Member for Prahran
22 September 2016

Mr HIBBINS (Prahran) — I rise to speak on behalf of the Victorian Greens on the Equal Opportunity Amendment (Religious Exceptions) Bill 2016. This bill restores the inherent requirements test that was previously in the Equal Opportunity Act 2010 and which was removed in 2011 by the then coalition government. We will be supporting this bill because it does offer some improvement to the current laws; however, we do feel it is inadequate. We knew that changes to the Equal Opportunity Act were coming, but I think this bill is a disappointment, particularly from a government that has done a lot in terms of LGBTI equality legislation. It should go further.

The issue of religious exceptions, I think, has been missing from the government's platform and actions, and I think this bill does still stray quite far from the government's mantra that equality is not negotiable. It will still allow discrimination against same-sex-attracted people, the gender diverse community and female employees. It does nothing to address discrimination against school students or clients of community sector or charity organisations. This inherent requirements test is weak, and I do not think it quite cuts it.

This bill does not restore the powers of the Victorian Equal Opportunity and Human Rights Commission — taken away by the previous government — to enable them to start their own inquiries and to make enforceable orders to root out systemic discrimination, and it does not make a number of the other really important changes that I have flagged previously, such as updating the outdated definition of gender identity and including protections for intersex people. I do not believe there has been any indication from the government that they are moving on these particular areas; however, the Greens do stand ready to work with the government should they look to address them.

I want to talk about the inherent requirements test. The government has made much of this provision that purports to protect people from discrimination, but just a cursory examination shows that it is weak, it offers little protection and there is some confusion as to what it actually means. We have heard one view that it is an attack on religion; I would interpret 'inherent requirement' perhaps differently to how others would. I mean, I would view an inherent requirement of, say, a religious teacher to be that they be of a religious faith. That could arguably be reasonable. But that is not what the Premier believes an inherent requirements test to be. We know that the Premier, in a speech to the Australian Christian Lobby in the lead-up to the last election, said that the test would mean schools could discriminate against the maths teacher but not the gardener. Is that the government's position — that it is okay to discriminate against a maths teacher because they are gay, which this bill would and this act does allow? How does that fit in with 'equality is not negotiable'?

When we look at the second-reading speech we see we have got something different from the minister. We have got:

Further, the inherent requirements test will not force religious bodies and schools to employ people with attributes that conflict with their religious beliefs.

This is essentially saying that any employee could be discriminated against.

Finally, the bill inserts new subsection (4) to section 82 of the principal act, which states:

The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3) …

This would make the inherent requirement test far from being one that looks at a test for a particular role; it would simply mean that a religious school or body could provide some sort of paperwork or some sort of proof that their particular faith supports such discrimination. It would essentially be just a hoop for them to jump through. It is not a requirement to demonstrate that this particular position has an inherent requirement, but rather that the particular faith just needs to demonstrate where that discrimination fits in with them.

I also point out that there is no provision for the inherent requirements test or the religious body or school to demonstrate this before they actually discriminate. As has been pointed out, how this would be challenged would be in court. There is no proviso for the school to, say, provide prospective applicants with documentation saying that they will be using these provisions; there is no proviso for them to prove the inherent requirement before they start, say, looking for job applicants, and I think this is very problematic.

When we look at the attributes that apply, we see they are: a religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity. These are the attributes that can be used to discriminate against a person, with the proviso that the discrimination conforms with the doctrines, beliefs or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

These attributes target same-sex-attracted people and they target transgender people but they also target women — in particular, single mothers, unwed mothers, married women or even mothers who want to return to work after they have had a child. These attributes are so broad and these conditions are so weak that we would create an environment for discrimination, both direct and indirect, to take place.

I have foreshadowed amendments to this bill. They are simple amendments. They make this bill much more effective. They are in keeping with the purpose of this bill, which is to modify the exceptions in relation to employment. They simply remove sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity from the list of attributes that can be discriminated against. The bill would still retain 'religious belief or activity' — again, there are roles that could require that to be an inherent requirement — but it would mean that, no, you could not sack the gay teacher, you would have to treat a single parent equally for a job application, and you could not place unfair conditions on a person's employment.

If the government's rhetoric is that equality is not negotiable and if the government is genuine in that rhetoric, it would support these amendments because they will strengthen protection for women and LGBTI Victorians. If you were to take the very broad view of what an inherent requirements test is, it will comply with a lot that we have been hearing from opposition speakers. You still could potentially have a school where all the staff are of a particular faith, because it does leave that particular attribute. But it would clear those other attributes — —

Ms Ryall interjected.

Mr HIBBINS — I advise the member for Ringwood that yes, you would have to have a gay teacher interact with children. Yes, that is what these amendments would do. The proponents of these exceptions state that we do not want to be forced to have an employee that does not share our values. Let us get to the nitty-gritty of what this means, because when we are talking about this wide list of attributes, it is not necessarily about religious belief or activity, but it talks about sexual orientation. It does mean not having to have a gay teacher. It does mean not having to have a staff member who is transgender or a woman that might be living a lifestyle that does not fit in with a particular viewpoint. It does not, however, simply mean not hiring someone with those characteristics. I think it would be ridiculous to suggest that in these organisations there are not already people who are same-sex attracted. Perhaps there is a teacher who might have their sexuality revealed. Perhaps there is a staff member who wants to transition gender. Perhaps there is a female teacher who will become a single mother or who is getting divorced. Imagine the damage it would do to those people's lives and careers if there was discrimination because of those factors.

We know there is a link between high rates of mental illness and suicide and discrimination and exclusion of same-sex attracted and gender diverse people. This law is not just as simple as not wanting a teacher or a non-teaching staff member who does not share their values in their schools. It is simply giving free licence to discriminate in any way, shape or form.

Honourable members interjecting.

Mr HIBBINS — It is true. It simply creates — —

Mr Watt interjected.

Mr HIBBINS — I am glad the member for Burwood is asking for examples, because there are examples that have been provided to me. Let me share the story of May. That is not her real name, but let us share her story. A lesbian woman was employed by a Christian welfare agency for two years. Before that she was involved as a volunteer for another two. She attended the church in connection with the welfare group. I quote:

I was asked to resign due to my relationship with my partner. I was directly told they were concerned with my involvement with primary and secondary school aged children. I resigned and fell apart after having served that community for four years. The fallout also meant I had to leave my church community. All of this resulted in mental health challenges, isolation, loss of faith, friends, purpose …

I can't express the devastating impact being asked to resign due to my sexuality had on my life. I lost everything — my vocation, faith, community — and had to rebuild myself from a very broken place.

I can share another story. Kathy is a teacher in a Catholic school and identifies as a lesbian. However, Kathy lives in fear that her employer will discover her sexual orientation. Kathy does not talk about her personal life with her colleagues or students and avoids social settings that are known to be frequented by same-sex attracted patrons. Kathy has heard of lesbian teachers being discovered holding hands with other women on the street and being sacked. Kathy's relationships have broken down in the past because her partners do not accept her closeted lifestyle and wish to be able to hold hands in public. Kathy felt very lucky to secure a teaching role at the school, given the difficult employment market for teachers and the long waiting list for jobs in the public school system. She intends to continue to sacrifice her personal life in favour of employment.

Those are two stories that have been provided to me. The interjections from opposition members suggest that these exemptions provide just a narrow recourse where discrimination can occur, but they actually lift these organisations and make them exempt from the law. They lift them above the law. A lot of these stories are examples of indirect discrimination. It is not just about direct discrimination — hiring and firing staff — it is about indirect, unspoken discrimination that creates that power balance and those unwritten rules.

As has been reported, perhaps upon discovering a teacher's sexual orientation a principal may start a conversation with, 'We could sack you, but', and place conditions on the person's employment. Perhaps there is an unspoken understanding at certain schools that teachers will be fired or otherwise excluded because of their sexuality. Perhaps at an organisation there is a glass ceiling for women. The laws create an environment where direct and indirect discrimination can flourish.

The member for Hawthorn asked where the evidence is for needing to change this legislation. This sort of discrimination will be rarely challenged. It will be rarely brought into the public realm, and why would it be? There is no recourse. There is no protection under the law. These exemptions provide not only an environment where discrimination flourishes but where reporting is suppressed.

We have heard interjections asking why a non-Christian person or a person who has these attributes joins a Christian organisation? That is not really how it works in reality. The job market does not work this way. We know that there are a lot of religious schools or faith-based schools who do employ people who are not necessarily of their faith. We know that there are a lot of people who, because of the job market, will take jobs in religious schools. Of course in applying for these jobs and taking these jobs they might not even know exactly what the school's policy is towards discrimination.

Honourable members interjecting.

The ACTING SPEAKER (Ms Ward) — Order! If members are going to interject, I ask them to go back to their seats.

Mr HIBBINS — It is a terrible situation where people have to choose a career or a livelihood and potentially live in secret. I am conscious of the time. Members who listen to my contributions will know that I do not usually go this far into my debates. But I do want to refer to the arguments regarding employment. Certainly when looking at the Equal Opportunity Act and our policy, there is a paragraph under section 82(1) of the Equal Opportunity Act that I believe should be retained. It allows discrimination in the case of people who are undertaking the core functions of that religion — such as priests and training of that nature. We do believe in retaining those particular exemptions for people in those particular roles, people who are providing the core functions of a religion. But the argument seems to be that if discrimination is carried out by a religious body or a religious organisation, that should go unchallenged and that is okay.

Religious groups and denominations are free to have their views and present their views. They are free under section 82(1) of the Equal Opportunity Act to put in place exemptions in relation to the people who undertake the core functions of their religion. That is freedom of religion. But do I agree with discrimination in that regard? Do I think it should go unchallenged? Should we accept it as the status quo? Should we turn a blind eye? No. That is why when it comes to delivering services, providing education and employing people — often with public funding — we should not be allowing discrimination in this regard. We should not be subjecting women and the LGBTI community to the risk of discrimination and the damage that it does.

I challenge this sort of assumption that discrimination on this basis goes hand in hand with being religious. As the Victorian Greens LGBTI spokesperson, I have met with many people of faith — Christians, Jews and Muslims — who are gay or transgender and who would be subject to discrimination under this act. There are schools, congregations and organisations that embrace equality. They do not use these laws; they do not need these laws. These laws are redundant, and they perpetuate this myth that all religious organisations or denominations are hostile to the LGBTI community.

It is our position that these sections, aside from section 82(1), in the Equal Opportunity Act should be removed. I have put forward an exposure draft for some legislation that I think would be an ideal Equal Opportunity Act as well as reforms in that regard. I have put forward the Equal Opportunity Amendment (Equality for Students) Bill 2016 that has been introduced into the upper house. That takes a narrower approach but certainly protects those who I think need to be protected most under this bill — that is, young people and school students.

Our Equal Opportunity Act needs to protect people who face discrimination, not organisations that wish to discriminate. The inherent requirements test is not sufficient. In the Premier's own words, it will still allow for discrimination against teachers, not just a religious teacher but a maths teacher or an English teacher. Yes, we can have faith-based schools that have a faith-based ethos, but those schools and organisations still have a duty of care to their employees that they are not subject to discrimination and the harm that it causes. I urge the government to support my amendments to strengthen this bill and to work with the Greens to strengthen the Equal Opportunity Act.

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Sam Hibbins MP
Member for Prahran
22 September 2016




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