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EQ - February 2004

THIS EDITION

Grassroots human rights:beyond symbolism

[pic] Commission Chief Executive Diane Sisely,Victorian Attorney-General Rob Hulls, MP and Lowitja O'Donoghue at the Human Rights Oration

Aboriginal elder Professor Lowitja O'Donoghue presented a 10-point plan for human rights action when she delivered the third annual Human Rights Oration on December 10 2003.

The Oration is the Commission's annual event to mark United Nations Human Rights Day. The Attorney-General, the Hon Rob Hulls, MP, delivered the opening address.

Founding chair of the Aboriginal and Torres Strait Islander Commission, Prof O'Donoghue called on all Australians to accept personal responsibility for change, treat everyone with respect and maintain the rage against human rights injustices.

Prof O'Donoghue said Aborigines had much in common with Afghani refugees. She said both Aborigines and Afghani refugees had experienced government oppression, suffered family separations and been allocated arbitrary birth dates.

She called on the Federal Government to abolish the 'Pacific Solution' and the mandatory detention of refugees. She said asylum seekers should be released from detention centres into the community as soon health and security checks were carried out.

"I want to remind Prime Minister Howard and Ministers Ruddock and Vanstone, that my people had to deal with boat people over 200 years ago. Just imagine what would have happened if back then, when we saw those tall ships and those men in funny hats, we had tried to excise Sydney Cove from Australia," she said.

Prof O'Donoghue also criticised the Federal Government's inaction on the health and wellbeing of Indigenous Australians.

She said the Government's Reconciliation policy has failed and Australia lagged behind New Zealand, Canada and the United States in relation to its treatment of Indigenous people.

"We still have a situation where Indigenous Australians have third world health status, where our children are dying as babies at the same rate as in the poorest countries in the world," she said.

Prof O'Donoghue described the Government's 'practical reconciliation' policy as a band-aid model and a failure.

"If anything, the health and wellbeing of Australia's Indigenous people is getting worse," she said.

10 Point Plan for Human Rights Action

  1. Accept personal responsibility for change, no matter how small - Don't assume that someone else will do it. Don't be complacent. Even small things like refusing to laugh at a racist joke can make a difference.
  2. Reflect on your own behaviour - Reflect on the cultural practices or beliefs that you find confronting or difficult. It is healthier to name and discuss the issues that you find difficult, than it is to try and be saintly.
  3. Identify what you have got to give - It may be time. It may be specific expertise. It may be a shoulder to cry on, or a sympathetic ear. It may be money. Everyone can do something and this may change at different times of your life.
  4. Act in your own context - For example, has anyone in your workplace raised the desirability of a workplace code of values and ethics? If not, perhaps you could do it. Once people have discussed desirable ways in which people should treat each other in the workplace, it is a short step to raising human rights more broadly.
  5. Collaborate - There is strength in partnerships and strategic alliances.
  6. Join. Network. Lobby. Advocate - Tell politicians what you think. To recycle an old slogan: Keep the bastards honest. Sign petitions. Write letters. If you can, make use of the Internet and email to reach people.
  7. Treat everyone with respect - Respect is more important than compassion or sympathy, because respect is based on familiarity and understanding. And respect ensures that people retain their dignity.
  8. Be inclusive - Once you have a good relationship with people, it becomes easier to think about how social justice and human rights issues can be raised.
  9. Maintain your rage - Also maintain your hope, your optimism and your sense of humour.
  10. And finally, celebrate your successes - Not only does this make you feel good but it also energises you for more work!

New chairperson

[pic] Ms Fiona Smith, Chairperson of Equal Opportunity Commission Victoria

Lawyer and disability rights advocate Fiona Smith was appointed chairperson of the Equal Opportunity Commission Victoria in December. She replaces Virginia Rogers.

Fiona brings over 20 years legal and governance experience across Federal and State tribunals, government agencies and the not-for-profit sector to her role as Chairperson. She also has extensive experience in social justice and disability issues, and has been an accredited mediator since 1997.

Fiona has been an advocate for social justice and human rights issues in paid and voluntary roles. As an advocate previously working with organisations such as the Australian Council of Social Services and Brotherhood of St Laurence, Fiona has worked with diverse communities and identified systemic problems and strategies to resolve them.

Between 1992 and 1997, Fiona served in several capacities on the former Guardianship and Administration Board, and was a part time member on the Commonwealth Administrative Tribunal between 1995 and 1997.

Fiona is also current Chairperson of the Victorian Business Licensing Authority, a position she has held since 1998.

Fiona has a Bachelor of Arts and Laws as wellas a Graduate Diploma in Dispute Resolutionand Judicial Administration from the University of Melbourne.

VIEW

Making human rights a reality for all

[pic] Dr Diane Sisely, Chief Executive Equal Opportunity Commission Victoria

In recent times there has been much discussion and questioning about who we are and what it means to be Australian. Politicians, commentators, letters pages and radio talkback would have us believe that external forces threaten 'the Australian way of life' or Australian values.

As Australians, and particularly as Victorians, we claim to value highly our rights, our belief in equality and the widely proclaimed 'fair go'. Study after study demonstrates how strongly we value human rights. But sometimes it's difficult for those of us who have never experienced racism or sexual harassment or negotiating a wheelchair to really appreciate just how difficult the world can be. In a rich country like Australia it would be easy for many of us to believe that concern for human rights is not relevant. Unfortunately this is not the reality for many people who suffer from discrimination or sexual harassment every day. People lose jobs, drop out of school, become depressed, and stop participating in sport or social activities. This means that many people are not able to enjoy full and equal participation in society, which is the intention of an open and diverse democracy.

We must change attitudes. We know we can change attitudes and behaviour, this is why we advertise products; we've seen it done with the road toll campaign, the quit smoking and skin cancer campaigns. We need to do this in relation to discriminatory attitudes and behaviours if we are to prevent discrimination, racial and religious vilification andsexual harassment.

We must also address systemic issues. Discrimination and vilification result not just from the actions of individuals but also from laws, policies and accepted practices entrenched in our community. There are often structural barriers operating to keep out people from different backgrounds, for example English language or strength tests for jobs when they are really not required.

We need to introduce measures to assist people to understand and act in accordance with their responsibilities. Currently compliance with responsibilities is very low and there are no compliance requirements for employers under the Equal Opportunity Act. We need a proactive compliance scheme for the Equal Opportunity Act similar to that operating for Occupational Health and Safety legislation.

The Equal Opportunity Commission is advocating for and exploring these approaches to address discrimination, racism and vilification. The onus on an individual to bring a complaint to the Commission is too great and we recognise that we need to be proactive in addressing the causes of discrimination and racism and developing strategies that benefit everyone and not just solutions for individual problems. But we can't do it alone; action by Government, by business, by community leaders, by all of us is required. We all have a role to play, a responsibility to ensure that our values, not our prejudices determine how we and those around us live our lives.

WHAT'S NEW?

Making experience work for small business

[pic] DMS Glass Chief Executive Don Mathieson leads a tour around his factory following the launch of the Experience at Work employers' kit. He is pictured with Commission Chief Executive, Dr Diane Sisely, Minister for Aged Care, Gavin Jennings MP, and VECCI CEOMr Neil Coulson.

In November the Commission launched the Experience at Work employers' kit which was developed to encourage small businesses to hire and retain workers 45 years and older. The launch was held at DMS Glass in Clayton, a small business which has demonstrated a commitment to retaining older workers.

The kit was produced as part of the Working for Ages project with additional funding from the Department for Victorian Communities. The Working for Ages project was a two year joint initiative of the Commission, the Office of Senior Victorians (Department of Human Services) and VicHealth. The kit was developed with support from the Victorian Employers' Chamber of Commerce and Industry (VECCI).

Launched by the Minister for Aged Care, Mr Gavin Jennings, the kit explains the changing workforce demographics in Victoria and challenges the myth that older workers are getting past their 'use by' date.

It is hoped that the kit will help to change employers' views and widen the job market for older workers by presenting more openings for those who are seeking flexibility, challenge and rewards for initiative and reliability.

Speaking at the launch of the kit, VECCI Chief Executive Officer, Mr Neil Coulson said retaining the skills and experience of older employees was critical to maintaining the viability and growth of Victorian businesses.

"In fact, in our member survey before the State election last year, 'retaining skilled employees' rated as the fifth most important issue facing business.

"This problem will only grow if employees continue to retire younger and take their skills with them, while the number of new entrants to the workforce will be insufficient to meet future labour demand."

Commission Chief Executive Dr Diane Sisely said older workers experienced age discrimination when applying for jobs, were less likely to be offered training and more likely to be pressured into taking redundancy packages or retirement.

"Age discrimination results from prejudice and ignorance about what people can and can't do based solely on their age and limits opportunities for people who have a lot to offer. We can no longer assume that people 45 years and older are preparing to retire and are not interested in training or promotion opportunities.

"Age discrimination and compulsory retirement have been against the law for years but now we know that it's bad for business and costly for the community," she said.

VicHealth Chief Executive Mr Rob Moodie said keeping older workers employed had social and health benefits as well as economic implications.

"Making a positive contribution to society through work is an important element in maintaining good mental health because work helps us keep active physically and mentally, gives us a sense of purpose and self-worth and keeps us in contact with other people," he said.

To order a free copy of the Experience at Work employers' kit contact the Commission on 9281 7111. The kit is also available on our website - www.eoc.vic.gov.au

Sexual harassment: not part of your job

Working Women's Health, Northern Centre Against Sexual Assault (CASA) and the Commission have joined forces to hold an awareness campaign in Vietnamese and Chinese languages about sexual harassment and where to get helpto deal with it.

Sexual harassment is a serious issue for all women. Last year (2002/03) there were 392 complaints of sexual harassmentmade to the Commission.

Launched in September, the awareness campaign featuresa postcard with the slogan "Sexual harassment is not partof my job". Each organisation has been using their education services to distribute the postcard and conduct information sessions for groups of Vietnamese and Chinese-speaking women.

The Commission offers a free and confidential complaintresolution service for people who have experienced sexual harassment. Northern CASA offers confidential counselling and support for women who have experienced sexual harassment. Working Women's Health offers multilingual information and education about sexual harassment.

The campaign will be extended to include more languages in 2004.

LEGAL UPDATE

Purvis v New South Wales (Department of Education) [2003] HCA 62.

Overview

The case concerns whether a secondary school could discipline and eventually expel a student whose behaviour was disruptive, at times violent and was caused by an underlying mental disability, without breaching the Commonwealth Disability Discrimination Act 1992 (DDA).

Background

The student, Daniel Hoggan, suffered a brain injury as a result of a severe encephalopathic illness soon after birth. His disability caused erratic and involuntary behaviour that sometimes led him to kick or punch his teacher's aide or other students. Following his enrolment at South Grafton High School in 1997, Daniel was involved in several incidents in which he kicked or punched his teacher's aide or other students and as a result he was suspended each time for up to 12 days.

Eventually, Daniel was expelled, eight months after his enrolment. Whilst the school acknowledged Daniel's disability, it contended that there was a more pressing need to protect the healthand safety of staff and other students.

Daniel's father lodged a complaint of disability discrimination on behalf of Daniel with the Human Rights and Equal Opportunity Commission (HREOC). HREOC concluded that the school had discriminated against Daniel in breach of the DDA. However the Federal Court overturned this decisionon appeal.

Approach of the High Court

By five to two majority, the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Hayne JJ with Kirby and McHugh JJ dissenting) found in favour of the New South Wales Education Department. In doing so, the High Court emphasised that whilst a person's (uninhibited or erratic) behaviour may be considered to be part of their disability, as that aspect that makes that person "different in the eyes of others", their behaviour may also be considered to be part of the circum-stances taken into account when deciding whether direct discrimination has occurred. The judges in the majority stated:

"In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s.5(1) [of the DDA] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person was not disabled... In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he acted as he had. His violent actions towards teachers and other formed part of the circumstances in which it was said that he was treated less favourably than other pupils".

The minority judges, Kirby and McKugh JJ disagreed with this approach by holding that the functional limitations of a person's disability were relevant when determining whether a person has been treated less favourably than others (without the same disability-based functional limitations), as to do otherwise would undermine the beneficial objects of the DDA (see the comments of Kirby and McHugh JJ at paragraph 80 of the Purvis decision).

However the judges agreed that the DDA did not impose on schools an obligation to provide reasonable accommodation to students in all circumstances. Rather, in the view of Kirby and McHugh JJ, there was a duty to evaluate the needs of a student with a disability, and if no appropriate accommodation were made, there would be a right to complain of disability discrimination.

Implications of the Purvis decision

This decision clarifies the circumstances in which a school (and potentially also employers and service providers) may take remedial or preventative action to manage a person's behaviour when that behaviour is based on an underlying mental disorder. The judgement as a whole appears to confirm that provided a school has given some degree of accommodation to a student with a disability, the school is likewise permitted to take mitigating but proportionate action if that student continues to misbehave, consistent with the way other students (without the same disability) would be treated if they misbehaved.

Whilst the school acknowledged Daniel's disability, it contended that there was a more pressing need to protect the health and safety of staff and other students.

Forum Family violence IS a workplace issue

The Victorian Community Council Against Violence (VCCAV) recently hosted a forum about family violence prevention through the workplace. The panel of speakers demonstrated emphatically that family violence is a workplace issue and explored its intersection with good business practice, occupational health and safety, workplace violence and bullying, equal opportunity and human rights.

Margot Scott from the Domestic Violence & Incest Resource Centre pointed out that "often, an abused woman is a working woman. Women who have been abused take the violence with them to work and it shows." Jacqui Boughton from the Victorian Employers Chamber of Commerce and Industry provided the business case for family violence prevention through the workplace, citing research that suggests that family violence costs the corporate sector $1.5 billion annually. She also reminded employers of their duty of care to provide a safe workplace.

Commission legal and policy officer Liana Buchanan explored the practical intersections between family violence and workplace violence and discrimination and the ways in which equal opportunity legislation may place a legal responsibility on employers and co-workers to respond appropriately to family violence issues when they arise in the workplace context. "In the past 30 years there has been an enormous shift away from the view that family violence is a private issue to be dealt with between the parties alone, but there are still many sectors of our society that do not consider family violence to be their concern. From the Commission's perspective, family violence (along with sexual harassment and other forms of violence perpetrated predominantly against women) is a human rights issue. As a human rights issue, family violence is a phenomenon that the whole community has responsibility to address. It is an issue that is as much the responsibility of employers, unions and workers in the community as it is for the police, refuge workers and domestic violence counsellors."

Further initiatives proposed by the VCCAV as part of the project on preventing family violence through the workplace include conducting a follow up survey of forum participants to see whether and how workplaces have taken action in relation to this issue, continuing consultations to encourage sectors to become involved in promoting awareness of the issue and providing responses and developing and disseminating targeted resource materials.

For more information or a copyof the paper on workplace modelsplease contact the VCCAV on 9603 8280.

ROUND UP

Discrimination in the law call for submissions

The Scrutiny of Acts and Regulations Committee is an all-party Committee of the Victorian Parliament. The Committee is currently inquiring into provisions within Victorian Acts and enactments (other than Council by-laws or local laws) that have the effect of discriminating or leading to discrimination against any person.

The Committee invites comments or submissions from all interested people identifying possible discriminatory provisions. The comments or submissions may also address whether these laws should be retained, amended or repealed.

Background

The objectives of the Equal Opportunity Act (Vic) 1995 include to -

The attributes include actual or assumed:age, breastfeeding, carer status, disability or impairment, gender identity, industrial activity, lawful sexual activity, marital status, parental status, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation or personal association with someone who has, or is assumed to have, any of these attributes.

Section 207 of the Act provides that "The Minister must cause a review of all Acts and enactments (other than municipal council by-laws or local laws) to be undertaken for the purpose of identifying provisions which discriminate, or may lead to discrimination, against any person'.

Discussion paper

The Committee has prepared a discussion paper to assist people or organisations wishing to make comments or submissions. Copies are available from the Committee Office, on the Committee's website - www.parliament.vic.gov.au/sarc or by contacting Sonya Caruana on (03) 9651 3614 or email sonya.caruana@parliament.vic.gov.au

A person with an impairment or disability may make a comment or submission by audio tape or another agreed method, or through a friend or advocate.

For more information about the inquiry processand timetable contact Senior Legal Adviser Andrew Homeron (03) 9651 3612.

Comments or submission should be received by 1 June 2004 addressed to -
Lily D'Ambrosio MPChairperson, Scrutiny of Acts and Regulations CommitteeLevel 8, 35 Spring StMelbourne 3000

YOUR PRIVACY The Equal Opportunity Commission Victoria complies with Victorian privacy laws and the confidentiality provisions of the Equal Opportunity Act 1995. Our privacy policy is available online at www.eoc.vic.gov.au/privacy or by contacting the Commission.

About EQ

EQ is published by the Equal Opportunity Commission Victoria. Contributions are welcome, although opinions expressed by external contributors are not necessarily those of the Commission. All information in this newsletter may be reproduced if acknowledgement is given to the Commission. For more information contact EQ editor, Slavka Scott,tel: (03) 9281 7150 or email slavka.scott@eoc.vic.gov.au

Equal Opportunity Commission Victoria level 3, 380 Lonsdale St, Melbourne 3000
Advice Line: (03) 9281 7100
Tel: (03) 9281 7111Fax: (03) 9281 7171
Website: www.eoc.vic.gov.au Email: eoc@vicnet.net.au
TTY: (03) 9281 7110Toll Free: 1800 13 4142 (country callers)

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