Equal Opportunity Amendment (Religious Exceptions) Bill 2016

Ms PENNICUIK (Southern Metropolitan) — I am pleased to rise to speak on the Equal Opportunity Amendment (Religious Exceptions) Bill 2016. At the outset I note that what I have to say about the bill will be very different from what has been said by the previous speakers, Mr Rich-Phillips and Dr Carling-Jenkins. In fact the bill that is before us is a rather modest and simple bill. It seeks only to reverse the changes made in 2011 by the coalition government to the religious exceptions in the Equal Opportunity Act 2010, which was introduced by the previous Labor government.

The changes removed the inherent requirements test in the 2010 act for employment by a religious body or a religious school, which was intended to limit the ability of such organisations to discriminate unreasonably against people with particular characteristics. The government acknowledges that the removal of this test has meant that too many Victorians remain vulnerable to unjustified discrimination in employment in religious organisations and religious schools.

The Greens are supporting the bill, but we say the bill does not go anywhere near far enough to protect against the potential for discrimination in employment by religious bodies and religious schools. Ideally the Greens and many in the community would like to see that there are no exceptions for religious schools or organisations and that they are not able to discriminate in matters of employment. It was way back in 2007 that I first raised this issue. In May 2007, when I had been elected to the Legislative Council for six months, I raised the issue of the inappropriateness of the exceptions under the act that applied at that time to religious organisations, religious schools and small business.

At that time there was a wider range of exceptions. In fact those organisations I have just mentioned could discriminate on the basis of age, breastfeeding, gender identity, impairment, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation and personal association.

That was the very long list of attributes to which there were exceptions through the prohibition against discrimination under the act.

In fact I moved a motion that there be an instruction to the committee that I would be able to move amendments to that bill:

to repeal the exception for small businesses from the prohibition of discrimination relating to employment and to ensure that the exception for religious schools from the prohibition of discrimination did not extend to anything done in the course of employment in such schools.

Nine and a half years later we are still grappling with this issue in terms of the bill that is before us now. But a lot of changes have happened, I would say, since that time and in terms of awareness of the discrimination that does exist in the community and the harm that that discrimination causes to people.

In fact the instruction to be allowed to move those amendments was outside the scope of the bill. The 2007 bill moved by the previous government was basically just to remove some of the attributes in regard to industrial activity from the act. The motion to move the instruction was in fact agreed to and I was allowed to move those amendments, but sadly they were not supported. So those exceptions for small business — that is, businesses under five employees — were allowed to remain in the act until the 2010 bill came to us three years later following the Gardner review in 2008.

Business interrupted pursuant to standing orders.

Sitting extended pursuant to standing orders.

Ms PENNICUIK — It has been a long time that I have been advocating in this place and taking the opportunities I can in terms of amendments to the Equal Opportunity Act to remove the exceptions under the act for discrimination by religious bodies and religious schools in matters of employment.

I mentioned that in 2007 I moved an instruction to the committee that was agreed to and I was able to move those amendments. Today I will also be moving an instruction to the committee to allow me to proceed with some amendments, which have been deemed by parliamentary counsel and by the clerks to be outside the scope of the bill. As I said, it is a very, very simple bill. It replaces the inherent requirements test that was removed by the previous government. I am happy to have those amendments circulated.

Greens amendments circulated by Ms Pennicuik (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — As I said, the 2008 Gardner review of the Equal Opportunity Act 1995 highlighted the link between discrimination and disadvantage, the costs of discrimination and the benefits of addressing discrimination in the community. It provided a comprehensive insight into Victoria's equal opportunity laws at the time, and where they were inadequate based on extensive community consultation, it made several recommendations for much-needed reform. While not all of these important recommendations were implemented by the then Labor government in 2010 with its bill — such as the need to include homelessness and irrelevant criminal record as attributes under the act that were prohibited to be discriminated against — other recommendations were included to address discrimination under the new act.

The Greens supported the legislation. However, I did seek to amend the bill when it was first introduced by the government. Amongst areas of concern then were the remaining exceptions for religious bodies and religious schools under the bill that created the new act. Our position was that the exceptions, even with the inherent requirements test as it was, still allowed certain members of the community to be discriminated against, whereas the vast majority of the rest of the community could not be discriminated against.

The 2010 act also included some changes to the Victorian Equal Opportunity and Human Rights Commission to allow it to undertake systemic inquiries into discrimination, which have not been reinstated by this bill and we feel should be reinstated by the government. It is unfortunate and a lost opportunity that that has not happened.

The bill before us, as I said, is a very simple bill of only four clauses, the fifth clause being the repealing clause. It makes changes to section 82(2) and section 83(2) of the act.

Section 82(2) pertains to religious bodies. Basically the amendments say that nothing in part 4, which is the main part of the Equal Opportunity Act 2010, applies to anything done in relation to the employment of a person by a religious body where conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position and the person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that the person does not meet that inherent requirement. The bill makes similar changes to section 83(2), which relates to religious schools.

In effect the simple changes that are made by the bill say that discrimination based on any of those attributes is only allowed if it can be shown that the attribute is an inherent requirement of the job. Unfortunately there is another small subsection (4) that is added to both of those sections, 82 and 83. That subsection says:

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 —

this subsection. I think that is a very unfortunate addition to those two sections of the act, because it actually undermines the earlier changes made through the amendments that the bill makes to the act in that it undermines the principle which I believe the government is trying to get to, and certainly should be trying to get to, which is: what is the inherent requirement of the position?

If you are, for example, a teacher in a religious school, I would say, as I have on many occasions, that your sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity has nothing to do with the inherent requirements for the position or for any position in a religious organisation or a religious school. As I have said in this Parliament before, I cannot understand how those questions could ever be asked of either a current employee or potential employee — how those questions could ever be put to someone who is applying for a job or already has a job in a religious school or organisation. They are completely irrelevant to any job. The purpose of the bill, as I see it, is about the inherent requirements of a position.

The amendments that I have circulated do further narrow and limit the amendments to the bill that have been circulated by the government. Basically the amendments would replace section 82(2) of the Equal Opportunity Act 2010 with the words:

Nothing in Part 4 applies to anything done (except in relation to employment) on the basis of a person's religious belief or activity by a religious body that conforms with the doctrines, beliefs or principles of the religion.

The amendments go on to remove references to the attributes that a person holds — their sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

I will move the same amendment to section 83(2) of the act such that:

Nothing in part 4 applies to anything done (except in relation to employment) on the basis of a person's religious belief or activity by a person or body to which this section applies in the course of establishing, directing, controlling or administering the educational institution that conforms with the doctrines, beliefs or principles of the religion.

To put that in plain language, it would mean that in a religious school or a religious organisation, if it was an inherent requirement of a position that a person held a particular religious belief — for example, that they be of Catholic faith to be able to teach religious instruction in a Catholic school — that would be allowed, but under my amendments none of the other attributes would be allowed to be included as an inherent requirement of the job.

So, as I have said, I fail to see how any of those other attributes could be in any way an inherent requirement of a job or of a position in any of those cases.

I bring members back to the objectives of the Equal Opportunity Act 2010. The objectives under section 3 of the act are:

(a)    to eliminate discrimination, sexual harassment and victimisation, to the greatest possible extent;

(b)   to further promote and protect the right to equality set out in the Charter of Human Rights and Responsibilities;

(c)    to encourage the identification and elimination of systemic causes of discrimination, sexual harassment and victimisation;

(d)   to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that —

(i)    discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;

(ii)   equal application of a rule to different groups can have unequal results or outcomes;

(iii)  the achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures …

I believe the act as it stands, with those exceptions still in it, do not achieve the objectives of the act, and the exceptions need to be limited to achieve the objectives of the act.

As I said, the legislation was enacted in 2010 — and at the time it was a reasonable rewrite of the act, which was then 15 years old — and it is now another six years older. Five years ago, in 2011, the former government removed the inherent requirements test, which was a most modest change to the act because it still left in those attributes that people could be discriminated against under sections 82 and 83. At that time the majority of the attributes by which people could be discriminated against, such as race, political activity, industrial activity, physical features, impairment and those sorts of things, were actually removed from the act as exceptions. What it left in the act were the attributes that I have just mentioned and what in fact this bill leaves in place.

The former government took out a lot of the attributes that were in the original 1995 act and left in that a religious school and a religious organisation — not a small business, because small business was removed from the 2010 act — could still discriminate based on sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity. It left those attributes in there and, as I said at the time, that basically highlighted those categories of attributes as the only remaining attributes by which religious organisations and religious schools could discriminate, and for me that made it worse, and they are still there now. As I have said, this is such a simple bill, but it has, with its new subsection (4), confused itself about the point it is trying to make, which is the establishment of the inherent requirements test. So the amendments that I have circulated would take out those attributes but would leave in place religious belief or activity if it is an inherent requirement of a position in a religious school or a religious organisation, such as the teaching of religious instruction, for example, in a religious school.

Mr Rich-Phillips said there was no justification for the modest bill that the government is putting forward and Dr Carling-Jenkins said there was no evidence; in fact there is justification and there is evidence. There is justification in terms of making sure that nobody, in terms of their employment activities, who already works in a place or who would like to work in a place is discriminated against based on those activities — for example, whether they are a parent, whether they are married or not married, what their lawful sexual activity is or what their gender identity is. These are not matters which should be raised with employees or prospective employees by employers — and religious schools and religious organisations are employers.

It is not correct for Mr Rich-Phillips to use examples such as people barracking for particular football teams being allowed in football clubs; that is not a comparison. We are talking about people's livelihoods. These organisations do employ a lot of people, and people should be employed based on their skills to carry out the particular position — their skills, their experience, their qualifications — for which they are being employed. In relation to the other attributes which I have mentioned, I would point out that the Attorney-General in his statement of compatibility went for several pages before he actually listed them. In fact it was at the bottom of page 3 of the statement of compatibility before he even went there. Those attributes cannot be shown to be an inherent requirement of any position, but I do say that perhaps a religious belief or activity could be shown to be an inherent requirement of some positions in a religious organisation or a religious school.

I would also say that it is probably time that the Equal Opportunity Act underwent another overhaul, and there are some other parts of it that need modernising and bringing more into line with what I would say the majority of community values are now. I would say too that Dr Carling-Jenkins and Mr Rich-Phillips mentioned some people that had written to them; I received a letter on the letterhead of the Human Rights Law Centre but also with 28 other signatories, including the Federation of Community Legal Centres, the Australian Council of Trade Unions (ACTU) — the ACTU is involved because of course we are dealing with matters of employment and restrictions on people's employment — the Law Institute of Victoria and a whole range of others that have signed on to this letter, pointing out that these exceptions that are still in place under the bill are too broad and that they need to be narrowed.

They also make the point that there are other changes that need to be made to the act, such as the reinstatement of the powers of the commission to undertake own-motion inquiries into systemic discrimination, because with just the complaints test that was in the act — and this was removed by the previous government five years ago — it relies on the person who has been discriminated against to actually make a complaint. And of course if there is an exception under the act they have no grounds to make a complaint, so the exceptions that exist under the act now mean that people who are discriminated against based on those attributes have no grounds to make a complaint. So there are still holes in the act.

Back in 2010 I moved an amendment to try to include 'homelessness' and 'a relevant criminal record' as attributes that could not be discriminated against under the act. They have not been included, but I would say that the government needs to include them, particularly with the growing homelessness problem. A relevant criminal record could be a minor criminal conviction a person has, but they could be discriminated against in terms of employment, in terms of housing et cetera. I have raised with the government the need to have a spent conviction scheme. It would be good to put those two provisions in place at the same time.

It has been raised by many in the community that the definition of gender identity as it currently stands under the act needs to be updated. There is the belief among many in the community that the government needs to remove from the act any requirement to identify as either male or female in order to be consistent with the definition under the federal Sex Discrimination Act 1984. I am a little bit nonplussed as to why the government has not brought all of these things to the Parliament as well. It is a bit of a lost opportunity there.

The Human Rights Law Centre, the Law Institute of Victoria and other peak bodies have stated that the attribute 'victim of family violence or stalking' should be added to complement existing protections in the commonwealth Fair Work Act 2009 and to assist women and others who are struggling with family violence.

As I mentioned, it is not correct for Mr Rich-Phillips or Dr Carling-Jenkins to say that there is no justification for this legislation. There is justification in the need to preserve the right of all people to employment and to protect them from discrimination in their current or future employment. I have received some case studies sent by the Victorian Gay and Lesbian Rights Lobby. They outlined May's story as follows:

May, 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 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', said May.

'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'.

May is not her real name.

The story of Mike, also not his real name, is outlined as follows:

Mike and his partner are both Catholic schoolteachers. They felt forced to take elaborate steps to hide their relationship from colleagues for fear of the repercussions for their career.

'We set up our house with two bedrooms so if any colleagues came over we could pretend we were just flatmates', Mike said.

Mike later left the school and now works in an independent school where he is open about his relationship. His partner, who still works in the Catholic system, has to conceal his relationship from those he works with.

'He's not able to take a day off work if I am sick. He has to be very guarded as to who he reveals his lifestyle to'.

There are more stories like that. I will not read them all out, but several have been provided.

There was an article by Farrah Tomazin in the Age where she mentioned some cases as well. There was Ms Beattie, who worked for the Catholic education office. She said that while she enjoyed her job, she knew that being a lesbian did not exactly fit the religious ethos of her workplace. She also knew that the longer she stayed, the harder it would get. The turning point came soon after she became pregnant through IVF with her partner. That is when she decided to leave. She said:

'I couldn't turn to anyone because I knew there would be questions …

'The whole thing really ground me down, actually. It's hard to go to work and not be able to talk about your partner, or what you're doing on the weekends. I'm a very open person, so I was embarrassed … I had to live like that. In the end I left, because I really didn't want to keep facing that every day'.

The article has another story:

Tim Hoffmann studied theology in the hope of becoming a religious instruction teacher but came to the conclusion 'that there's no point trying'.

He is quoted as saying:

There might be exceptions — there would be individual schools and principals who are supportive — but how do you know which schools?' …

There are many stories like that. I will also make some comments about that. A lot of people do not come forward with their stories because they are too afraid of losing their employment to do so. I think that is a tragedy for those particular individuals who are out there being discriminated against in that way or feeling that they could be discriminated against in that way. It is also a tragedy for the schools, because they are obviously losing committed, qualified and skilled people who they could have working in their schools or their religious organisations.

I was talking about the bill that was brought into the Parliament in 2007 by the then Labor government. In the Parliament at that time there was another DLP representative, Mr Peter Kavanagh. During that debate in response to some things I said, he commented that he did not believe that many schools actually did this. He did not believe that many schools did discriminate based on the attributes. So I said in response — and it may have been in the committee stage if we were responding to each other — that if that is the case, why have them? Why not remove them if that is the case? That is just another reason for removing these attributes from the act under sections 82 and 83.

The other point I would like to make is that Dr Carling-Jenkins was talking about parents sending their children to particular schools and paying fees to those particular schools, which I would agree is the case. But I would also say that all schools — non-government schools, religious schools and independent schools — receive public funding, some of them quite a lot of public funding. In fact the majority of their funding is public funding. There are also a lot of organisations that do work on behalf of the government that receive public funding. It has been a longstanding Greens policy that organisations that receive public funding, including schools that receive public funding — in, as I say, many cases a large amount and the majority of their funding — should be held to the same standards of non-discrimination, of transparency in their affairs and of accountability in their affairs as government schools are required to be held to.

Government schools are not permitted to discriminate on the basis of these attributes, and I have not seen or heard any evidence that other schools, including religious schools, should be able to either, because there is no way that any of those attributes — a person's sex, a person's sexuality, their gender identity, their parental status, their marital status — has anything to do with the inherent requirements of a position. I am conceding that in terms of a religious school, religious belief or activity may be an inherent requirement for some — very limited — positions.

So much has happened over the last six years in the community's understanding of the devastation that this type of discrimination has. The fact that this type of discrimination is allowed under the law sends not only a direct message but also an indirect message that this type of discrimination not only in religious schools and religious organisations but elsewhere in the community is somehow okay. It is not okay. It is not okay to discriminate against people based on those attributes in any way, and I think the vast majority of the community believes that and is committed to that, but unfortunately our Equal Opportunity Act is not keeping up with that.

Since 2010 it has become more and more outdated, particularly since the unfortunate amendments that were passed in 2011, five years ago, by the coalition government. We had gone forward, even if a small amount, but then we went backwards again. I do not believe that is what the vast majority of the community would like to see. I think the vast majority of the community would like to see equality, and we do not have equality under the Equal Opportunity Act at the moment.

I think the vast majority of the community would like to see the Victorian Equal Opportunity and Human Rights Commission have more ability to look into the issues of harassment, bullying and discrimination.

We know a lot of evidence has been presented and there has been a lot of community discussion over the last five years about the devastating effects that this type of discrimination has on people in terms of their mental health and in terms of their employment, and in terms of people taking their own lives because of this discrimination. This is not a situation that anybody in the community could want to see continue. The way to remove it is to remove the discriminations that still exist in some pockets of the law, mainly at the state level but also at the federal level — for example, the Marriage Act 1961, which was altered in 2004 to make that discriminatory as well.

While the Greens will not oppose this bill — we will support this bill — we qualify that by saying it is a very modest bill and is not, as has been portrayed by the previous two speakers, a far-reaching bill at all. It does not reach anywhere near as far as I would like to see it reaching, which is why I will move the amendments that I have circulated which will make the government's bill achieve what the government says it wants to achieve. I think it will be the third occasion in this Parliament that I will have moved those amendments.

The Attorney-General in his second-reading speech and the Premier in media releases made what I think were quite disingenuous comments. They were that people like gardeners, cleaners et cetera would be protected under this bill but teachers would not be. I do not agree with that. I think it would apply to everybody, as minimally as it does, but the government says it is talking about the inherent requirements of the position. As I said, the new subsections (4) which are being inserted into sections 82 and 83 of the act are very unfortunate, waffly subsections which undermine the purpose of the bill. The Greens will support the bill, but we would like to move our own amendments to strengthen the bill and to remove discrimination from the Equal Opportunity Act.

The ACTING PRESIDENT (Mr Elasmar) — Order! I advise members that they may speak to the amendments and to the bill itself.