Tasmania, The Tolerant State

Should Tasmania’s strong anti-discrimination laws be used as a national model?

This question was posed by a recent Senate inquiry into the Federal Government’s proposal for a national human rights statute banning discrimination on a range of grounds, including, for the first time at a national level, sexual orientation and gender identity.

The Senate inquiry’s answer was "yes", although with a disappointing caveat that shows our national leaders still don’t grasp the value of the high standards Tasmania has set in this area.

The Senate inquiry considered a number of features of the Tasmanian Anti-Discrimination Act, such as its excellent definition of discrimination on the grounds of intersex and irrelevant criminal record. It wasn’t so keen on the state’s comprehensive anti-vilification provisions. 

Perhaps the most important feature of the Tasmanian statute is that it has very few exemptions for faith-based organisations including schools, employment services, welfare agencies and hospitals.

There are some very limited exemptions on the grounds of religion which allow, for example, a Catholic school to refuse to employ Muslim teachers, but there are no exemptions on other grounds including sexual orientation and relationship status.

A religious school cannot legally refuse to hire a teacher because they are in a same-sex relationships or expel a student because they are gay. A faith-based service cannot turn away a client because they are transgender.

This is unprecedented in Australia, where every other state anti-discrimination law, as well as the proposed national law, include the kind of exemptions that allow faith-based organisations to shut the door on gay and transgender people completely.

To its credit the Senate inquiry into the proposed national bill endorsed the Tasmanian model when it comes to the provision of services.

Should the government adopt this recommendation it would mean protection for everyone from students in faith-based schools to residents in faith-based care facilities.

Frustratingly, the inquiry turned its back on the Tasmanian model when it comes to employment.

It effectively said teachers should not have the protections their students should enjoy, nor aged care workers the same rights as those they tend.

As someone who advocated for and helped draft the Tasmanian Anti-Discrimination Act, I am bewildered and appalled by the failure of our national leaders to meet the standards it sets, even when, like members of the Senate inquiry, they have some sympathy for these standards.

To better understand why this is so, and why the nation would benefit from adopting the Tasmanian model in toto, we need to consider the origin and the positive impact of the Tasmanian statute.

There are two reasons why Tasmania has such a strong anti-discrimination law, both related to resistance to reform.

The Anti-Discrimination Act was passed just a year after the decriminalisation of homosexuality in 1997.

The divisive, decade-long debate on that reform had exposed an underbelly of prejudice in Tasmanian society, as well as the awful human damage caused by that prejudice — not least family break-down, emigration and even suicide.

The Anti-Discrimination Act was the ultimate expression of a post-reform mood for reconciliation and inclusion.

Tasmania was also the last state to enact a comprehensive anti-discrimination statute, even though it was one of the first states to propose such a law twenty years earlier.

After two decades of debate on an anti-discrimination law, the cases for and against were reduced to the most fundamental level: opponents argued for the right of employers and landlords to dispose of their "property" as they wish, proponents made the case that everyone deserves equal access to the basics of life including a job, a house and an education.

With the stakes put so starkly Tasmania opted for equal access.

Both of these elements, so crucial to enacting the Tasmanian law, are missing in the current national debate.

Too many advocates for reform fail to communicate or even grasp the dire human impact of discrimination, waffling about international obligations instead.

They have lost sight of fundamental reason we have anti-discrimination laws — to ensure basic living standards for all — instead turning off most Australians by engaging in unnecessarily polarising debates about "gay rights" versus "religious freedom".

Even more relevant to the current national debate than what led up to that passage of the Tasmanian Anti-Discrimination Act is the act’s subsequent positive impact.

For example, Tasmania’s Catholic schools, once a hotbed of homophobic bullying, now lead the way on safer schools by implementing anti-homophobia programs in secondary classes.

Faith-based welfare agencies have undertaken diversity training to ensure they comply with the act.

Disputes between church organisations and gay people seeking equal access to services or offended by discriminatory policies have been successfully mediated to the satisfaction of all parties.

It is sad and not a little ironic that Tasmanian gay teachers I know, who feel able to be honest about who they are in Tasmanian Catholic schools, go back into the work closet when they move to Sydney or Melbourne.

In short, the act has been the key to a rapid improvement in attitudes, to the point where Tasmania is now leading the nation on issues like marriage equality.

Most telling of all, Tasmanian faith-based schools and services have never once complained that their freedom of religion or freedom of expression have been trammelled.

Examples of private schools or hospitals being forced to compromise their ethos remain purely hypothetical.

There are no examples of faith-based organisations seeking even the limited administrative exemptions that are allowed for them at the discretion of the Anti-Discrimination Commissioner.

Indeed, among the hundreds of submissions to the Senate committee that recommended the Tasmanian model there wasn’t one which criticised Tasmania’s statute.

But there were plenty, including from the state government, advocates and ordinary citizens that sang its praises.

The act was a landmark in the nation’s decades-long journey towards ensuring all Australians are judged according to their character and abilities, and not their race, creed or sexuality.

Now that the nation is about to take another important step in that journey it is vital that the standards set in Tasmania are matched and exceeded.