EQ - April 2006

Charter of Human Rights

The Equal Opportunity Commission Victoria welcomed the State Government's announcement late last year that it would enact a Charter of Human Rights and Responsibilities.

The Charter consultation process received 2524 submissions from individuals and organisations providing a strong indication that human rights is an issue of strong concern for the community.

The Government has a reasonably sound record of respecting human rights but without mechanisms that create checks and balances our system of government is not currently fully equipped to adequately address human rights issues.

Generally it is the human rights of minorities that are the most vulnerable, however governments are elected by majorities, and if the majority is unconcerned about the impact of legislation, policies and practices on minorities, issues concerning rights can vanish from the political landscape.

Under the proposed Charter every cabinet submission will be assessed for its human rights impact, and all bills presented to Parliament will have to ensure the actions of government maintains and promotes citizens' human rights.

Most importantly, all Victorian laws would have to comply with the principles of the Charter and this would effectively restrict discrimination that is currently allowed in Victorian laws unless such discrimination is absolutely necessary.

Victoria is the only state in Australia to have proposed a human rights instrument and other states are watching closely to see what happens here.

Click here to read more about the Victorian Government Charter of Human Rights.

What does NOT constitute vilification under the Racial and Religious Tolerance Act

The Racial and Religious Tolerance Act (RRTA) attracts many claims about its scope. These include that it is designed to restrict freedom of speech, genuine debate or discussion. In fact, it is a law that targets the most serious forms of racial and religious vilification. Vilification is behaviour that incites hatred, serious contempt, revulsion or severe ridicule against a person or group of people because of their race or religion. Incitement is more than just merely holding a view or expressing an opinion, it is the encouragement or promotion of hatred towards others.

Two recent examples highlight just how serious behaviour must be to in order to be considered vilifying and demonstrate that freedom of speech is not compromised by the legislation.

Late last year, the Victorian Civil and Administrative Tribunal (VCAT) dismissed a case of racial vilification made by the National Italian Australian Federation against the Herald Weekly Times and its columnist Andrew Bolt.

VCAT Deputy President Cate MacKenzie found that the words complained of in the article written by Mr Bolt "The Italian Government did what we imagine Italians do and panicked" were incapable of inciting vilification regardless of the interpretation they were given.

This decision confirms that the RRTA is reserved for extreme behaviour which 'inflames' others to hate a person or group of people because of their race or religion and that the Act does not curb free speech.

More recently, the so-called 'Mohammed cartoons' have led to speculation to the publication of such material in Victoria could lead to vilification complaints. In a statement issued in January, Commission Chief Executive Officer, Dr Helen Szoke said the cartoons were unlikely to be considered vilifying.

"A cartoon would need to be extremely serious in order to meet the benchmark for vilifying behaviour," she said.

"The behaviour has to be much more serious than causing offence, affronting someone's sense of decency or hurting their feelings in order for it to be considered vilifying."

The RRTA is not a remedy for people who have been offended by rude or off-hand remarks. In general, racially stereotyping comments, blasphemy, off-hand remarks or racist or religious jokes, while offensive to some people, are unlikely to be considered vilifying.

Additionally, there are exceptions under the Act that cover the work of artists, performers, journalists, academics and scientists, as long as that work is engaged in reasonably and in good faith.

5th Human Rights Oration 2005 - The Glue that Brings us Together ; Combating Racism in Sport

Andrew Demetriou, CEO, Australian Football League (AFL) presented the Commission's Annual Human Rights Oration on Friday December 6 at the Melbourne Town Hall.

Andrew's presentation emphasised AFL's role and responsibilities in leading the way in human rights for "everyone, everyday" saying, "It is important, in an oration like this, to understand the strength of the bond that exists between our game, and our supporters. Because without understanding - or worse, not considering - that strength, that unconditional love of the game, its history, its culture, its performers and its great events, you cannot come to understand why it is that the AFL has a right to be a speaker at such an important event as this today."

Andrew's speech went on to highlight the pivotal role played by Indigenous football player Michael Long in the AFL becoming the first sporting body in Australia to adopt anti racial and religious vilification procedures, concluding by reflecting honestly on public criticism that the AFL's policies seemed to be borne out of reaction rather than prevention.

"Our organisation moves slowly, it watches closely, considers, considers again, and then acts. To protect its core - the beauty of our game - we must be reactive, we must be patient for change. So, by way of background, that is, or has been, the imbedded culture of our organisation - reactive is good."

Click here to read Andrew's full speech.

Disclosure Forum

On the 30 November, 2005 the Commission presented a public forum panel to look into the issue of disclosing a disability in employment.

The Commission has received a small but increasing number of enquiries and complaints in the last two years in regard to disclosure, in particular in the area of mental impairment and employment when people disclose in the first six months of their tenure or become impaired during the course of their work. Disclosing their health conditions had led to people being:

Stigmatised, bullied and treated unfavourably in the workplace.
Asked to undertake medical examinations.
Subjected to changed job positions and working hours.
Asked questions in pre-employment medical examination about cognitive impairment symptoms that are no longer present.
Sacked (there is one case where an employee worked 15 years for the same company, developed a mental illness, was hospitalised and then sacked without pay).

Disclosure forum panellists included Merinda Epstein who was first diagnosed with a mental illness when she was 18 and shared her own personal journey of disclosing and not disclosing with her employers, Gary Kerridge, Regional Disability Liaison Officer, University of Ballarat who is deaf and shared his wealth of experience on the practical benefits of disclosing and Margherita Coppolino, Diversity Consultant who spoke on disclosure from an employer's point of view.

Click here to read the Disclosure Forum panel presentations.

Come Out to Play

To celebrate the Midsumma Festival the Commission, in partnership with Victoria University and Sport and Recreation, Victoria held a Come Out to Play workshop on Thursday 2 February.

Sport is a great social leveller but it can also be a difficult environment for lesbians, gays and bisexuals to be open about their sexuality and Come out to Play is an opportunity for sports clubs to develop inclusive policies to support lesbian, gay, bisexual, transsexual and intersex participation.

Ed Jardine, President of Glamourhead Swim Club was joined by Ji Wallace, 2000 Olympic Games Trampoline silver medallist, Daniel Witthaus, Victorian dart and tennis competitor and Jeff Wallis, President of Parents and Family of Lesbians and Gays (PFLAG) to share a diverse range of personal perspectives and experiences on coming out in a sports environment. The panel then lead workshop sessions where attendees participated in developing inclusive and anti-discrimination practices in their clubs.

Come Out to Play is an important ongoing initiative that highlights the critical need for the Commission to tackle discrimination and remind the general public that it is unlawful to discriminate on the basis of sexuality or gender identity.

Click here to find out about future Come Out to Play and Play by the Rules workshops.

Workshops and Information Sessions

Equal Opportunity Workshops 2006 - ARE YOU EO READY?

Most of the complaints of discrimination lodged with the Commission in 2004/05 were in the areas of employment (74%) and in the provision of goods and services (16%). Many legal experts believe that changes to Industrial Relations laws will force even more workers to lodge discrimination complaints.

When it comes to bullying, discrimination or sexual harassment, prevention is always better than the cure. Through education and workshops organisations can prevent costly, time-consuming and disruptive workplace discrimination and sexual harassment complaints.

The Commission has a skilled team of education consultants who work with hundreds of different organisations across all industries, helping them to design and implement effective strategies to eliminate discrimination and harassment.

The Commission's Education and Consultancy Unit customises education, consultancy and training services to meet the needs of organisations and runs a variety of workshops throughout the year, including rights and responsibilities under the Equal Opportunity (EO) Act, developing effective equal opportunity policies and procedures and EO for managers and team leaders.

Click here to find out more about all the Commission's available workshops.

Regional Visits

The Commission is committed to a number of rural conciliations, complaint formulation and Equal Opportunity information sessions over the coming months targeting Barwon South West (Warrnambool), Lodden Mallee (Echuca and Mildura), and Hume (Shepparton).

This approach is proving successful with initial visits consisting of a meet and greet with local government and other service providers to identify priority issues and establish opportunities for following visits. Several community education sessions have already been conducted and the profile of Complaints Officers in different towns is increasing.

Shepparton - April 10 & 11
Ballarat - May 4 & 5
Mildura - June 19 & 20

Legal Policy Update

Submission on the Draft Disability Bill

In November 2005 the Department of Human Services (DHS) released the Disability Exposure Draft Bill for consultation. The Bill represents the culmination of a comprehensive review of the Intellectually Disabled Persons' Services Act 1986 and the Disability Services Act 1991.

The Disability Bill sets out to provide a coherent legislative framework for people with a range of disabilities. The Bill aims to create a strong foundation for the provision and regulation of high quality supports for people with a disability and safeguard and strengthen the rights of people accessing those supports.

The Commission recently provided a submission in response to the draft Bill commending the draft Bill's attempt to articulate a human rights framework for the provision of disability services.

The Commission submission also sought to raise some concerns in relation to parts of the Bill that the Commission thought could benefit from further development; namely in relation to the definitions section, the objectives and principles, the role of the Disability Services Commissioner, registration of disability service providers, tenancy rights in residential services and restrictive interventions and compulsory treatment. Some of the main recommendations made by the Commission included:

the Bill should provide a broad definition of 'disability' to ensure that people in need of access to disability services and supports are not disadvantaged by clinical and technical definitions of eligibility for such services.
the Bill should expressly acknowledge the need for disability services to provide a seamless interaction between other health services delivery.
the rights pertaining to people with intellectual disabilities should be expressed broadly to relate to all people with disabilities.
the Disability Services Commissioner should have discretion to refer complaints about tenancy disputes to the VCAT for final determination.
the Bill should expressly prohibit victimisation of a person or their associate who complains, or intends to complain about disability service providers.
the compulsory care provisions of the Bill need to be broadened to cover people with cognitive impairments.

It is anticipated that the Bill will be introduced into Parliament in the coming months.

Click here read the Commission's full submission.

"Striking the Balance: Women, Men Work and Family'" Discussion Paper

Australia is in an era of enormous change and transition. Australians are living longer and therefore more likely to have a significant disability as they age. Women's increased workforce participation means a greater proportion of people are employed. Australians work an average 212 hours or five weeks a year more than the developed world average. These changes mean that many employees are now forced to grapple with the challenge of integrating paid work with their personal lives.

In light of the shifting landscape of employment and life balance the Commission welcomed the opportunity to offer recommendations in response to the Human Rights and Equal Opportunity Commission's (HREOC) "Striking the Balance: Women, Men Work and Family'" Discussion Paper.

The paper provides timely scrutiny of the increasingly pressing question about how to balance our work and private lives and below is a summary of the Commission's recommendations.

Education initiatives directed at all levels of employment, are required in order to challenge cultural assumptions of what constitutes an ideal worker.
The Sex Discrimination Act 1984 (Cth) (SDA) family responsibilities provision amended to cover instances of direct or indirect discrimination and future discrimination.
The SDA to reflect that both men and women with caring or parenting obligations have equal access to the family responsibilities provisions.
Access to flexible work conditions for parents and carers, with the potential to be extended to employees with impairments or other personal needs.
Federal government to extend funding to facilitate programs that allows both men and women to balance their work and personal needs and enables workplaces to be more responsive to the need for flexibility.
Federal funding for programs to educate peak employer groups and individual organisations about how to balance maintaining productivity and accommodating the personal needs of their employees.
The scope of the debate about balancing work and private life broadened to include workers balancing employment with personal needs.

The final Report will be published by HREOC later this year.

Click here to read the Commission's full submission.

VCAT Exemptions - Chaise Lounge and F4 nightclubs.

Mid last year the Chaise Lounge and F4 clubs were granted exemptions to control the number of unpartnered men and women entering the club to maintain a gender balance within those clubs. In granting the exemption the Victorian Civil and Administrative Tribunal (VCAT) attached a number of conditions considered necessary to curb or prevent any discrimination not linked to the objectives of the exemption, namely that,

Neither nightclub could refuse entry outright to a patron based on their sex (rather a person's entry could only be deferred until the necessary gender imbalance was reached)
Neither nightclub could refuse entry to people who identified as a (same-sex or heterosexual) couple, or to a person who identified as gay or a lesbian, or on the basis of a person's gender identity
Both nightclubs were required to ensure that management and staff received education and training in relation to Equal Opportunity Act 1995 and the effect and scope of the exemption. Such education and training was to be provided to new members of staff and management as appropriate.

Both exemptions expired on 21 January 2006 and to date no notification has been received of an application for their renewal. The Commission has received informal advice from the nightclubs concerned that the conditions imposed by the VCAT have been complied with and based on this and any further advice provided on this issue, the Commission will await any future applications to renew the recent exemptions or fresh applications from other nightclubs before deciding on an appropriate response.

Click here to read more about VCAT decisions.

Disability, Landlords and Tenants Project (Fairer Victoria)

As part of its Fairer Victoria funding the Commission will implement a Disability, Landlords and Tenants project in July this year that aims to educate landlords and tenants on their rights and responsibilities regarding people with a disability.

This initiative recognises that removing barriers to private rental accommodation requires that estate agents are presented with incentives that make sense from a commercial as well as a moral viewpoint.

For example, whilst estate agents may be reluctant to promote themselves as being "disability friendly" they may nevertheless be attracted to proposals that encourage people with disabilities to use their services and to comply with their obligations as tenants.

The project is in external and internal consultation phase and enquiries relating to the disability, landlords and tenants project can be made with the Project Coordinator, michiline.lee@eoc.vic.gov.au.

Complaints Update

Complaints lodged for the first two quarters of 2005-2006 financial year
	JULY-SEPTEMBER 2005 (689 COMPLAINTS LODGED made up of 685 under EOA plus 4 under RRTA)	OCTOBER-DECEMBER 2005 (541 COMPLAINTS LODGED made up of 541 under EOA and none under RRTA)
AREAS
Accommodation	9	nil
Clubs	1	7
Education	18	53
Employment	536	397
Goods and Services	112	80
Local government	9	nil
No area required	nil	3
Sport	nil	1
.	.	.
ATTRIBUTE
Age	18	42
Breastfeeding	2	nil
Carer status	25	19
Discriminatory request for information	3	8
Gender identity	1	4
Impairment	173	167
Industrial activity	29	11
Lawful sexual activity	4	3
Marital status	15	6
Parental status	26	23
Personal association	12	3
Physical features	29	27
Pregnancy	22	15
Race	67	30
Religious belief	12	11
Religious vilification	2	nil
Sex	56	42
Sexual harassment	99	67
Sexual orientation	5	4
Victimisation	86	59

Complaints Overview

impairment/disability complaints remain the largest number of complaints processed through the Commission.
sexual harassment complaints as a percentage of all complaints increased in the second quarter.
age discrimination complaints more than doubled in the second quarter.
there was a marked increase in complaints against educational institutes with the end of the school year and difficulties becoming apparent in enrolments for 2006.
despite the events in Cronulla, Sydney during summer and media debate around the Racial and Religious Tolerance Act, the Commission received no religious vilification complaints in the last quarter.
industrial activity complaints were down in the last quarter, possibly reflecting the publicity around the Federal Government industrial relations changes.

Graph representing values on the preceeding table