The Anti-Discrimination Act: why it’s important and how it’s threatened

Rodney Croome

Ever since the Anti-Discrimination Act was passed it has been slowly whittled away. Within three years of the Act’s passage, the State Government had already bowed to the wishes of the Catholic Church and changed the Act to allow it to discriminate on the grounds of religion when hiring and firing teachers. The Act allows organisations to apply for time-limited administrative exemptions and this is the route the Church should have taken. But, instead it demanded and was granted a special status written into statutory stone. In response to concerns about this special legal status the Church gave the impression that it was satisfied with its exemption. But four years later it was back asking for another exemption to allow it to discriminate against students. Ostensibly aimed at allowing Catholic schools to enroll more Catholic students, in reality the exemption will allow schools to turn away anyone who does not conform to church dogma. This could include students whose parents are unmarried, who are found in possession of contraception, or who are openly-gay.

THE Tasmanian Anti-Discrimination Act is ten years old in December.

But don’t start celebrating yet. Tasmania’s landmark Act is under threat from religious prejudice and official negligence.

The Tasmanian Anti-Discrimination Act, passed in 1998, was one of the first and most important social justice law reform of the Bacon Labor Government.

Being the last state or territory to enact an anti-discrimination statute meant we could learn from the mistakes of others.

We also had more than a generation of legislative initiatives in Tasmania to draw on – Tasmanian Labor’s Fran Bladel introduced the nation’s first Anti-Discrimination Bill, the Greens’ Lance Armstrong gave us the nation’s most comprehensive anti-vilification provisions, and the Liberals’, an exceptional Sex Discrimination Act in 1996.

The genius of the Anti-Discrimination Act is that it blended the best of all that had gone before into something even better.

When it was passed the Anti-Discrimination Act was rightly labelled the very best in the world. It was a potent symbol of a new, more open, inclusive and confident Tasmania.

In many ways it has fulfilled this promise.

Its wide scope has allowed Tasmania’s anti-discrimination authorities to address types of discrimination that can’t be dealt with elsewhere.

In my area of expertise, sexuality discrimination, examples include religious vilification, harassment and bullying by neighbours, and, of course, the current hearing against Red Cross gay blood ban.

Of course, the Anti-Discrimination Act can’t force people to refrain from discrimination, but it has contributed significantly to cultural change.

The Tasmanian branches of major corporations have led the way when it comes to training their staff in gender diversity.

Gay, lesbian, bisexual and transgender Catholic school students and teachers testify their schools are now much safer places to come out.

Whether they’re hard-nosed managers or gay teenagers, everyone affected by the positive cultural changes we’ve seen in Tasmania traces these changes directly back to the Anti-Discrimination Act.

That Act has helped make our island society far safer and more respectful than anyone could possibly have imagined 15 years ago.

But sadly, this is only half of the story.

Ever since the Anti-Discrimination Act was passed it has been slowly whittled away.

Within three years of the Act’s passage, the State Government had already bowed to the wishes of the Catholic Church and changed the Act to allow it to discriminate on the grounds of religion when hiring and firing teachers.

The Act allows organisations to apply for time-limited administrative exemptions and this is the route the Church should have taken. But, instead it demanded and was granted a special status written into statutory stone.

In response to concerns about this special legal status the Church gave the impression that it was satisfied with its exemption. But four years later it was back asking for another exemption to allow it to discriminate against students.

Ostensibly aimed at allowing Catholic schools to enroll more Catholic students, in reality the exemption will allow schools to turn away anyone who does not conform to church dogma. This could include students whose parents are unmarried, who are found in possession of contraception, or who are openly-gay.

Controversy over this new exemption has been linked an official review of the Anti-Discrimination Act. Commenced in 2006, and originally intended to look at the way complaints are handled and resolved, the review’s release was delayed when it was revealed that it may recommend a church-school exemption.

The review was finally released yesterday. The Church request was not directly upheld. Instead, the review recommended further community consultation on the basis that “there appears to be some support for the Church’s position” (I’ve seen virtually no public endorsement for the Church’s position, so I’d be interested to know where all this support is coming from).

“Further review” is cold comfort to anyone who values the principles of anti-discrimination. Not only is a Church exemption a bad idea in itself. By seriously considering the Church’s request the Government has set a precedent for any disgruntled organisation too lazy or arrogant to make its case to the Anti-Discrimination Commissioner.

Another example of what we might call anti-discrimination erosion, is a recent decision by the Federal Court which removed all protections under the Anti-Discrimination Act for employees and customers of the Commonwealth Government in Tasmania.

Earlier this year the Commonwealth lodged an objection in the Federal Court to the Anti-Discrimination Tribunal hearing an allegation of discrimination against Centrelink. The Commonwealth’s objection was upheld, effectively removing all Commonwealth employees and all the services provided by Commonwealth agencies from the jurisdiction of the Tribunal and the Act it administers.

What makes this decision particularly serious is the hotch-potch nature of the federal discrimination laws that are now the sole protection against discrimination by and in Commonwealth agencies.

Federal law only covers race, sex, disability and age, a fraction of the grounds cited in state law. There is limited protection from bullying and vilification. There is no protection from sexuality discrimination.

A national anti-discrimination law similar to that operating in Tasmania is one solution, but there is little or no will for this in the current Government.

A simpler solution would be reform Tasmania’s Act and Tribunal to address the concerns raised by the Federal Court.

This would require a) clarifying the Act’s definition of “person” to make it clear it includes the Commonwealth and its agencies, and b) constituting the Tribunal as a State Court by giving Tribunal members fixed tenure and proper remuneration (as opposed to the current situation where they can removed at the whim of the Attorney-General).

There you have it: a serious problem, a simple solution, and what’s the Tasmanian Government doing?

According to the review,

“Although (application of the Anti-Discrimination Act to the Commonwealth) was discussed at some length in the Discussion Paper there was no need to make any recommendations as to this issue.”

In other words, the Government isn’t even aware there’s a problem, or if it is aware, it doesn’t care.

The Anti-Discrimination Act review wasn’t a complete write off.

It recommended the inclusion of intersex as a grounds of discrimination.

Between 0.1 and 1% of the population are born with intersex conditions (genitalia that are not exclusively male or female).

Despite having a genetic condition, intersex people still high levels of ignorance, prejudice and discrimination. A good example in the Tasmanian context are advertisements from the 2006 and 2007 elections which condemned the recognition of intersex conditions as “a threat to families and society”.

Together with the intersex recommendation, the review also supports moving “transsexuality” out from under the broader category of “sexuality” because transsexuality is about gender identity not sexual orientation (there’s no explicit recommendation for where both transsexuality and intersex should sit in the Act. I assume it will be under a new heading of “gender identity”).

This is a good example of what we should be doing to the Anti-Discrimination Act. Instead of eroding protections for vulnerable Tasmanians we should be refining them to meet the demands of a changing world.

As Tasmania approaches the 10th anniversary of its Anti-Discrimination Act, it’s time for all of us, including the State Government, to rededicate ourselves to enhancing the principles of that landmark statute and to the vision it embodies of a more tolerant Tasmania.

Rodney Croome

***

For more on the proposed Catholic school exemption visit

http://oldtt.pixelkey.biz/index.php?/weblog/article/shredding-the-anti-discrimination-act/

A copy of the Anti-Discrimination Act review can be found at

http://www.justice.tas.gov.au/__data/assets/pdf_file/0015/110571/ADC_Final_Recommendation_Paper_14_May_2008.pdf

A copy of the Tasmanian Government statement on the review can be found at

http://www.media.tas.gov.au/release.php?id=24787

The Federal Court decision cited above was in Commonwealth of Australia v Anti-Discrimination Tribunal (Tas) 2008, and can be found at http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/104.html.

For information on how to apply for an Anti-Discrimination Act exemption visit
http://www.antidiscrimination.tas.gov.au/Exceptions_and_Exemptions#applying%20for%20an%20exemption