Equality and Exemptions: Discrimination on the Grounds of Political Activity

Victorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009) VCAT has granted the Victorian Electoral Commission ('VEC') an exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable the VEC to take into account certain political activities of a person when considering whether to offer the person employment, contract work or an appointment on the audit committee of the VEC.  In arriving at her decision, Vice President Harbison referred to the principles enunciated by President Bell in Lifestyle Communities Ltd (No 3) [2009] VCAT 1869.

The Victorian Equal Opportunity and Human Rights Commission ('VEOHRC') intervened in the matter as an interested party.

Facts 

The VEC sought an exemption to enable it to request and consider the following information of applicants for employment and contract work with the VEC and membership of the VEC audit committee:

• current or previous membership of a political party within Australia;
• current membership or association with a political lobby group, excluding membership of a union or professional association, which promotes a political position in respect of an issue currently before the electorate in an election;
• whether the person has been a councillor for a Victorian local council; and
• whether the person has published or publicly expressed a political opinion on an issue before the electorate at an election.

Without an exemption for this conduct, such conduct would breach various sections of the EO Act because it discriminates based on the attribute of political belief or activity.

The VEC has been granted exemptions for similar conduct since 1991, although past exemptions have identified the particular staff positions that were subject to the exemptions.  However, the VEC submitted that there has been a fundamental change to its structure and workforce, which now comprises many casual employees.  The VEC submitted that all of its staff and audit committee members ‘may be required to make decisions of a highly contentious nature from time to time’.  As a result, these individuals must be independent and be perceived as independent to maintain a high level of public trust in the election process.

The VEC submitted that, in practice, it would interview and assess applicants for its positions according to its normal process.  Only applicants who are successful in this process would be asked to disclose whether the above exemption criteria apply to them.  The Electoral Commissioner would personally evaluate whether the employment of the person is reasonable in light of the information that they disclose and the role for which they are applying.

Decision

Vice President Harbison confirmed that VCAT is acting in an administrative capacity, and therefore as a public authority, when exercising its power to grant exemptions under s 83 of the EO Act.  As a result, VCAT is obliged to act compatibly with human rights under s 38 of the Charter.  Vice President Harbison noted that, in any event, VCAT is required by s 32 of the Charter to interpret s 83 of the EO Act in a way which is compatible with human rights.

Vice President Harbison considered that the rights to equality, privacy, participation in public life, freedom of expression, freedom of association and freedom of thought, conscience, religion and belief were relevant to the VEC's application.  She observed that these rights ‘are of the highest importance’.

The purpose of the exemption, being to ensure the independence and impartiality of the election process, was also held to be an important public purpose as it is vital to the protection of freedom and democracy.  According to Harbison VP,

by giving up the right to express their own political views or to engage in conduct of a political nature, the employees of the VEC may be seen as making the free expression of political views via the ballot box possible for all Australians.  Thus…this exemption is a means of protecting the democratic framework within which all citizens’ rights to equal opportunity can be exercised.

In terms of the nature and extent of the limitation, Harbison VP noted that only applicants who were successful at the first stage of the process would be asked to disclose their political activities, the disclosure would be treated in confidence, and the VEC does not intend to automatically exclude applicants based on disclosures.  Further, applicants would have an opportunity to argue their case prior to a decision being made to use their disclosure to bar employment or committee membership.

Vice President Harbison considered there to be an arbitrariness to the proposed exemption, which addresses perceived bias but not actual bias.  Nonetheless, Harbison VP concluded that this is preferable to not dealing with the issue at all, and that she could not conceive of criteria to identify actual bias.

Vice President Harbison was also concerned by the lack of clarity in the proposed terms of the exemption.  The VEC addressed these concerns by, among other things, agreeing to explain to job applicants why they are required to disclose political activities.  The VEC further agreed to ensure the privacy of information disclosed and to allow VCAT to monitor the exemption.  However, Harbison VP considered that the exemption was still uncertain due to the Electoral Commissioner's broad discretion to discriminate based on any information disclosed.

Having weighed these factors, Harbison VP granted the exemption sought by the VEC.  However, she amended the criteria of information that the VEC could consider to:

• current or previous membership of a political party within Australian within the past 15 years;
• a course of conduct within the past 15 years directed to supporting the aims of a political party of an independent candidate in a State, Territory or Federal election;
• current membership or association with a political lobby group, excluding membership of a union or professional association, which promotes a political position in respect of an issue currently before the electorate in the election for which that person is to be employed;
• whether the person has been a councillor for a Victorian local council within the past 15 years;
• a course of conduct within the past 15 years directed to supporting the political aims of a local councillor; and
• whether the person has publicly engaged in conduct promoting a political position in respect of an issue currently before the electorate in the election for which that person is to be employed.

Vice President Harbison granted the exemption for a period of three years and ordered that the VEC report to VCAT every six months on the operation of the exemption.  Her Honour noted that, in the long term, it may be more sensible for the VEC to be given a statutory exemption.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2191.html. 

Melanie Schleiger is a lawyer with Lander & Rogers