After a rather quiet first six months in office, Victoria’s Coalition government is now getting into some controversial territory. In the early hours of yesterday morning, state parliament — after an earlier hiccup — passed the government’s amendments to Victoria’s Equal Opportunity Act reversing changes made last year by the Labor government that would have limited the exemptions given to churches and religious schools.

This is an issue that arouses strong passions.

From the government’s point of view, it’s restoring a necessary measure of religious freedom. As the opposition sees it, it’s giving religious organisations a licence to discriminate against gays, women, unmarried couples and the like, and sending a message that bigotry is now acceptable.

It’s useful therefore to try to take a step back from the political controversy and consider the principles involved. Discrimination just means choice, and all action necessarily involves choices. The objection is to making choices on inappropriate grounds — thereby not just hurting the person who is discriminated against, but also stigmatising members of a particular group.

So, for example, if one is choosing members of a basketball team it’s appropriate to take their height into consideration. In employing staff for a political party it’s appropriate to consider political beliefs.

Swap those criteria around, however, and you’ve got two clear cases of unfair discrimination.

The problem comes when we try to get the law to prohibit or penalise discrimination, because then someone has to decide what criteria are relevant or appropriate. Like the parallel debate about censorship, that involves giving government a power that it’s ill-equipped to exercise: judges and lawmakers are substituting their judgement about relevance for that of the individuals and organisations who have to actually live with the decision.

As a society, we may decide that some forms of discrimination are so odious that it’s worth paying that price in order to fight them. But the sweeping nature of the Equal Opportunity Act and similar provisions around the country suggests to me that we have gone much too far in that direction in quest of an unattainable, perfect state-mandated “fairness”.

So I don’t have a problem with winding back some of the anti-discrimination provisions. To me, the problem is elsewhere, namely in giving particular groups, defined by their religious character, a licence for behaviour that is prohibited to the rest of us.

If the old Equal Opportunity Act imposed an unreasonable restriction on freedom of choice, then surely that restriction was unreasonable for everyone, not just the churches. If a church is allowed to be the final arbiter of whether, for example, it’s necessary to restrict a particular job to men only, why shouldn’t other employers have the same right?

If the debate were just about religious discrimination, as some supporters of the changes like to imply, there would be an intelligible answer to that – churches should be able to choose on the basis of religion just as, say, political parties can choose on the basis of political beliefs. But that provides no rationale for discrimination based on “s-x, s-xual orientation, lawful s-xual activity, marital status, parental status or gender identity”.

Instead, restoring the old exemptions puts religion and religious belief in a privileged position, with rights that are denied to secular organisations. That’s a direction that a liberal society shouldn’t be taking. If the Baillieu government wasn’t prepared to extend those rights to everyone, it should have left the law as it was.

Peter Fray

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Peter Fray
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