The Greens Member for Prahran in the Victorian Parliament, Sam Hibbins, is currently undertaking consultation on his exposure draft Bill to amend the Victorian Equal Opportunity Act 2010.

Full details of the consultation process can be found here. The following is my submission:

Mr Sam Hibbins MP

Member for Prahran

94 Chapel St

Windsor VIC 3181

sam.hibbins@parliament.vic.gov.au

Friday 12 February 2016

Dear Mr Hibbins

Consultation on Equal Opportunity Amendment (LGBTI Equality) Bill 2016

Thank you for the opportunity to provide a submission on your exposure draft Equal Opportunity Amendment Bill.

Thank you also for your commitment to improving the anti-discrimination protections that are provided to lesbian, gay, bisexual, transgender and bisexual (LGBTI) Victorians.

I agree with your statement, made as part of this consultation, that “The [Equal Opportunity] Act needs updating so that it better protects same-sex and gender diverse Victorians from discrimination at school, at work and in the community” (although I note that the phrase ‘same-sex and gender diverse’ does not include intersex people).

I believe that your exposure draft Bill addresses two of three major deficiencies in the current Act (and that I have written about previously – What’s Wrong With the Victorian Equal Opportunity Act 2010).

Specifically, the Bill would significantly improve the protected attributes that are included in the Act, by:

• Introducing a new protected attribute of ‘intersex status’, consistent with the protections offered under the Commonwealth Sex Discrimination Act 1984, and
• Updating the definition of ‘gender identity’ to be broader, and to remove any requirement to identify as either male or female in order to attract anti-discrimination coverage (and again in line with the 2013 Federal Labor Government reforms to the Sex Discrimination Act).

Both of these changes are overdue, and are welcome.

I also support the proposed amendments to reduce the current excessive and unjustified ‘exceptions’ that are offered to religious organisations and individuals allowing them to discriminate against LGBT Victorians in circumstances where it would otherwise be unlawful to do so.

The balance which the Bill strikes – removing religious exceptions in schools and other services, in employment and by individuals, while retaining exceptions for ‘core religious functions’, such as the appointment of ministers of religion and the conduct of religious ceremonies[i] – appears to be a reasonable one.

However, there is one major deficiency of Victorian anti-discrimination and vilification law that your exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016 does not address – and that is the absence of anti-vilification protections covering LGBTI people.

As I have written previously:

“There are… protections against both racial and religious vilification under Victoria’s Racial and Religious Tolerance Act 2001.

“With homophobic, biphobic, transphobic and intersexphobic vilification just as serious, and just as detrimental, as racial and religious vilification, there is no reason why LGBTI people should not have equivalent protections under Victorian law.”[ii]

In this context, the major suggestion I would make for improvement to your exposure draft Bill is for you to consider amendments to introduce protections against vilification on the basis of sexual orientation, gender identity and intersex status, equivalent to the current prohibitions on racial and religious vilification contained in the Racial and Religious Tolerance Act 2001.

Outside of these three main issues – protected attributes, religious exceptions and anti-vilification protections – the other reforms proposed by the exposure draft Bill, to “restore… the powers of the Victorian Equal Opportunity and Human Rights Commission to conduct public inquiries, enter into enforceable undertakings and to issue compliance notices” and to “restore… the power for the Commission to order someone to provide information and documents, and to order a witness… to attend and answer question” also appear reasonable.

Overall, then, I support the provisions contained in the exposure draft Equal Opportunity Amendment (LGBTI Equality) Bill 2016, but encourage you to consider adding provisions to provide protections against vilification on the basis of sexual orientation, gender identity and intersex status.

Beyond the content of the proposed Bill itself, however, I would like to make the additional point that, given the failure of the Victorian Legislative Council to support reforms in late 2015 to ensure that religious organisations could not discriminate against LGBTI people accessing adoption services, the passage of any of the above reforms would appear to be difficult, at least in the current term of Parliament.

In this context, I urge you and the Victorian Greens to work collaboratively with the state Labor Government, the Sex Party (who also supported last year’s reforms), and the Victorian LGBTI community, to persuade remaining cross-benchers, and indeed sympathetic Liberal and National MLCs, to support at least some of these reforms now – while retaining the option of passing the remainder following the 2018 election.

Thank you for taking this submission into consideration. If you would like any additional information, or to clarify any of the above, please contact me at the details provided below.

Sincerely

Alastair Lawrie

Update: 14 January 2017

The Greens introduced an amended version of this legislation into Victorian Parliament in mid-2016.

Renamed the Equal Opportunity Amendment (Equality for Students) Bill 2016, as the name suggests it focused specifically on ensuring religious schools could not discriminate against LGBT students.

Its major provision would have added the following new section to the Equal Opportunity Act 2010:

“84A Discrimination against school students not exempt

Sections 82(2), 83 and 84 do not permit discrimination by a person or body that establishes, directs, controls, administers or is an educational institution that is a school against a student on the basis of the student’s sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.”

Unfortunately, despite the modest nature of this proposed reform, it was rejected by the Victorian Legislative Council on November 9 2016, by a margin of 32 to 6 (as reported by the Star Observer here).

Footnotes:

[i] The Bill would leave sub-section 82(1) of the Victorian Equal Opportunity Act 2010 in tact:

“Nothing in Part 4 applies to-

• the ordination or appointment of priests, ministers of religions or members of a religious order; or
• the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
• the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.”

[ii] What’s Wrong With the Victorian Equal Opportunity Act 2010