Commissioner for Equal Opportunity e-bulletin

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May 2019

From the Commissioner - Political conviction vs political correctness

Recently a story out of Melbourne caught my attention. It was about a mother searching for a rental property on Gumtree.

She found a nice place advertised on the Gumtree site; the only problem was the advertisement stipulated only vegan families should apply.

The story goes on to state that ‘under Australia’s anti-discrimination legislation, the advertisement could technically be illegal, as the veganism requirement falls under ‘political opinion’.

Further to that story, a Facebook poll showed members of the public believed the ad was discrimination – but was the ad unlawful discrimination?

For discrimination to be unlawful under federal, state or territory discrimination legislation, it needs to fit under one or more of the grounds covered by that legislation and to have occurred in a relevant area of public life.

The WA Equal Opportunity Act 1984 (the Act), has several grounds that apply to the area of accommodation, which a rental property would fall under, and political conviction is one of them. It includes having a lack of political conviction.

However, is being vegan a political conviction? And if so, does not being vegan mean that a person lacks that political conviction?

The story suggests as much, but for a person’s discrimination complaint to be successful, that person would have to prove being vegan is intrinsically linked to the discriminator’s political beliefs.

If a vegan family had been excluded from a rental property, they would also have to prove their choice to not consume animal products was intrinsically linked to their political beliefs if the family wanted to show political conviction discrimination.

Political activists linked to established animal rights groups such as People for the Ethical Treatment of Animals (PETA), may be able to demonstrate being a vegan is intrinsically linked to their political conviction. However, they would need to link being vegan to their beliefs concerning the structure, purpose, obligations, duties or some other aspect of government. Or they may be active members of an established political group and that is the reason for their dietary requirements.

Before making a complaint to either the Australian Human Rights Commission, or one of the state or territory anti-discrimination agencies such as the WA Equal Opportunity Commission, it is worth considering whether the discrimination is lawful or unlawful – that is, does it fall under a relevant ground and area of relevant anti-discrimination legislation, and can they demonstrate this?

Similarly, when it comes to what someone chooses to eat or not eat, they should consider if their motivation is political correctness or political conviction. 

Acting Commissioner for Equal Opportunity John Byrne

Commissioner Dr John Byrne

 


 

Isabelle Lake Memorial Lecture seats available

There are still a few seats available for the 2019 Isabelle Lake Memorial Lecture on Friday 17 May.

This year transgender woman Joleen Mataele, the main protagonist in the film nominated for several awards, Leitis in Waiting, will give the audience insight into her experience as a transgender woman living in Tonga and provide a wonderful cross-cultural exchange by singing traditional songs to the audience following her address.

The lecture will start at 6pm in the Ross Lecture Theatre at The University of Western Australia, followed by refreshments at 7pm.

At 7.30pm Leitis in Waiting will be shown in the lecture theatre for those who would like to stay to view it.

The event will be hosted by the Equal Opportunity Commission and The University of Western Australia and is sponsored by DLA Piper Australia, Shell Australia and PwC Australia.

Registration is essential if you wish to attend the event and can be done on Trybooking.com at this link: https://www.trybooking.com/BCECS

FINAL FLYER

 


 

Discussing sexual harassment with Zonta

Commission Services Manager Diana MacTiernan gave a presentation on sexual harassment and other forms of discrimination impacting on women, to women members of the Zonta Perth Northern Suburbs.

“As usual, the topic of sexual harassment provoked passionate discussion about how far society has progressed in this area, and how far we still need to go,” Ms MacTiernan said.

She said although laws are in place to protect women against sexual harassment, and the retribution they may receive because they have complained about it, these laws did not prevent the behaviour from happening.

“Having laws in place to remedy discrimination and harassment are only part of the solution.

“There needs to be more community education and awareness about issues such as sexual harassment, such as the detriment it can cause both employees and employers if it is allowed to occur, “she said.

Ms MacTiernan said the Commission’s community education and training officers had worked with government, non-government and private sector agencies on sexual harassment since the #MeToo movement and Australian Human Rights Commission’s public enquiries into sexual harassment in employment and education.

“Sexual harassment is sensitive and it’s not always easy to make a complaint about it.

“Sometimes engaging someone from the Commission to speak to a group can give those who harass an understanding to stop their behaviour or those being harassed enough confidence to make a complaint,” she said.

If you are interested in booking a training session on sexual harassment, contact the Commission’s Education and Training section on (08) 9216 3900 or eoc@eoc.wa.gov.au.

Kath Snashall  from Zonta with Diana MacTiernan

Commission Services Manager Diana MacTiernan with Kath Snashall from Zonta

 


 

Think before you type on social media

Last month the Civil and Administrative Tribunal in NSW ordered Blair Smith pay Garry Burns $10,000 as compensation for loss and damage following Mr Smith’s Facebook post, the Tribunal decided vilified Mr Burns because of his sexual orientation.

In April 2018 Mr Smith publicly commented on Mr Bernard Gaynor’s Facebook post regarding Mr Burns by writing:

“The same Garry Burns who is on the record advocating for paedophile rights, and acceptance of their practices in the rainbow world. This sick filthy piece of human filth needs to be put down, just like we do to sick animals…After all…it would be the humane thing to do.”

Mr Burns does not complain about that comment and it is then followed by posts from different people supporting Mr Gaynor, some of which explicitly refer to “Garry Burns”.

The Face Book discussion then turns to the subject of Israel Falou and Mr Burns joins the conversation to say, “That’s correct Norman Sim Elias. Mr Falou broke no anti-discrimination law with his statement.”

Posted with Mr Burns’ comment is a small photo of him. This is followed by a comment from another person saying, “Struth Good to see a photo of this excrement. Copy it and keep it folks – you can show your kids what such a person looks like…”

Following this Mr Burns reported Mr Smith’s post to the NSW Police Force and later sent a private Face Book message to Mr Smith stating that the intended to take legal action against for defamation because he published a comment on Mr Gaynor’s Facebook page that he was either a paedophile or condone or promote the criminal activity of raping children.

“My little brother at age eight was raped by a paedophile and committed suicide at age 17 when I was 19.  I am seeking compensation. Your lawyer can contact me…to offer to retract the comments,” Mr Burns said.

After providing his telephone number Mr Smith contacted him, told him he would get nothing from him and threatened to smash Mr Burns’ head in.

Mr Burns contacted the police again to report the threat and the police responded by telling Mr Smith to only contact Mr Burns’ through his lawyer.

Mr Smith was later contacted by the Anti-Discrimination Board of NSW and responded to the Board that he didn’t mean to mention Garry Burns but Garry Dowsett and conceded that nowhere on the public record does Mr Burns advocate for paedophiles to be accepted into the gay and lesbian community.

Although Mr Smith apologised to Mr Burns the matter did not resolve at the Anti-Discrimination Board.

In ordering the payment of $10,000 for sexual orientation vilification, the Tribunal took into account the distress the comment caused Mr Burns, given the traumatic circumstances of his younger brother’s death, the fact Mr Smith’s comment did incite public hatred with following comments such as ‘good to see a photo of this excrement’ and that the comment did relate to Mr Burns’ sexual orientation as a known homosexual.

Vilification and the Equal Opportunity Act 1984

Although sexual orientation vilification is unlawful in NSW, it is not in Western Australia.

Sexual orientation discrimination is unlawful in most areas of public life in WA, however in openly public areas such as social media platforms, sexual orientation discrimination is not covered.

The Attorney-General has recently announced the Terms of Reference for the review of the Equal Opportunity Act 1984.

Included in the Terms of Reference is consideration for the need for any reform regarding the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification.

To read more about Civil and Administrative Tribunal NSW decision click here.

 


 

What's coming up

The Commission’s Training Calendar from January to July 2019 is now available. You can register for all Commission courses on the Community Education page.

8 May              Introduction to EO Law in Northam – FREE EVENT

14 May            Fair Go for Your Clients – Addressing systemic discrimination

15 May            Equal Opportunity Essentials for Managers and Supervisors

17 May            Isabelle Lake Memorial Lecture

28 May            Contact Officer Role                          

Please contact us on 9216 3900 if you are interested in organisation specific training or for a rights-based session for your clients or community members.


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