104 week 9 tut - tutorial PDF

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Activity 9.1 QUT offers a number of targeted scholarships for students from minority or marginalised backgrounds. Using each of the theories of formal and substantive equality, explain whether such scholarships constitute discrimination. Draft your response as a set of arguments and supporting points using the guidelines for critical legal analysis and writing discussed in weeks 1 and 4. THERE ARE 2 DIFFERENT THEORIES OF EQUALITY - SHOULD LOOK AT BOTH WHEN ANALYSING!  FORMAL EQUALITY o Equality in application/procedural equality o May conceal the substantive political, social, and economic inequality of disadvantaged groups or individuals o The idea of formal equality is the idea of the law being equally applied to everyone o Aligned with liberalism (classical + libertarianism) and rule of law o Formal equality adheres to a non-discrimination principle o Will not require the State to use its power to address situations of inequality  No explicit demands to address situations of inequality - no mitigative or therapeutic application in order to try and reduce situations of equality  But demands equal application of law in terms of procedure o Formal equality feeds into equality before the law which leads to rule of law o PROCEDURAL JUSTICE  Procedural equality - the processes of the law are seen to apply equally o Doesn’t provide much support in relation to the idea of positive discrimination  Anti discrimination laws = seen more explicitly to substantive equality o People who insist on formal equality - that may conceal the true state of inequality of certain disadvantaged groups - can be political, social or economic inequality  SUBSTANTIVE EQUALITY o Adheres to a positive discrimination principle o Idea of a clap back to formal equality (earlier theory) o A remedial form of equality - trying to mitigate or repair some of the problems that theorists seem formal equality as presenting o It offers a repair or mitigation because it says you don’t just need equality in process/application but also of opportunity/access o A requisite to support equality of opportunity - the race can only be run fairly if the starting points are equalised o To ensure same starting point for everyone o Sandra Fredman's theory of substantive equality - 4 dimensions  She tried to turn it into a process  First step - ensuring appropriate redistribution of resources so that disadvantaged people - that cycle can be broken  'DISTRIBUTIVE JUSTICE' - fair allocation of resources

There are significant links between theories of equality and theories of justice  Second dimension - recognise people - giving respect and dignity to all people, making sure it is realised  The idea of UNDHR - because they are human, they have inherent rights  Participating - able to participate in public life in legal, political, and social institutions  Included and have an ability to participate and have their voices heard - social inclusion and political voice  i.e Uluru Statement - participation for political voice  How can you make sure there is more than just lip service to change - how to enforce structural and systemic change in every single societal level  Explicit demands of government  Government is responsible for transforming society at that broader level  One way gov could do this - anti-discrimination laws  Racial discrimination act  Proposed religious discrimination bill Make the playing field more level 

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SCHOLARSHIPS Formal equality

Substantive equality

Against the value because they are treating people differently

Recognises that not everyone starts from an equal playing field - gives them an opportunity for access - I.e indigenous people or lowersocioeconomic people

May permit scholarships where it is just based on merit - sporting or academic achievement - recognising those who are working harder and giving them greater access

WHAT ABOUT THE DIFFERENCE BETWEEN A RIGHT AND BENEFIT? Right - entitled to that scholarship, theoretically, there shouldn’t be any constraints Benefits - beneficially entitled to, could more appropriately condition that benefit

Right to education is just a right, the gov has no obligation to make sure it is enforced - no differential treatment, applicable to everyone - blanket rule (WHAT ABOUT INTERNATIONAL STUDIES)

Recognising a base line level of rights is important, but higher up that process of substantive equality, you are not necessarily embedding that same level of essentialness to some of that higher order aspirational levels

THIS WOULD SUGGEST THAT HAVING SEPARATE SCHOLARSHIPS FOR CERTAIN GROUPS OF PEOPLE WOULD BE CONTRARY TO EQUALITY

THIS WOULD SUPPORT HAVING DIFFERENTIATED SCHOLARSHIPS IN ORDER TO ADDRESS EXISTING INEQUALITIES THAT MEAN IT HARDER FOR SOME GROUPS TO ACCESS UNIVERSITY - access!

THE ONLY SCHOLARSHIPS THAT SHOULD BE AVAILABLE, FROM THIS PERSPECTIVE ARE THOSE PROVIDED ON THE BASIS OF ACADEMIC ACHIEVEMENT OR SPORTING ETC

EVIDENCE ABOUT THE HIGHER ATTRITION RATE AMONG LOWER SOCIO-ECONOMIC GROUPS, FOR INSTANCE, WOULD BE RELEVANT, OR THE DIFFICULTIES THAT PERSONS WITH DISABILITIES MAY FACE TO TRAVEL TO AND MOVE AORUND CAMPUS

BUT HOW CAN YOU ACCOUNT FOR THE STRUCTURAL INEQUALITIES THAT SOME STUDENTS WILL EXPERIENCE IN THEIR ASPIRATION TO ATTEND UNIVERSITY first in family, youths leaving departmental care, lowersocioeconomic members  

USE BOTH FORMAL AND SUBSTANTIVE EQUALITY ANALYSIS - at least a taste of what the issue would like from those theories EQUALITY ANALYSIS BEARS LOTS OF SIMILARITIES TO JUSTICE - make particular differentiations - BE CAREFUL!

Activity 9.2 The Federal government plans to legislate a Religious Discrimination Bill to add the protected ground of “religious belief or activity” to existing federal discrimination protections for race, sex, disability and age. THERE IS A CAVEAT - TO BE PROTECTED BY THE LEGISLATION, STATEMENTS MUST BE MADE IN GOOD FAITH; NOT BE MALICIOUS OR HARASS, VILIFY OR INCITE HATRED AGAINST A PERSON OR GROUP; AND MUST NOT ADVOCATE FOR THE COMMISSION OF A SERIOUS CRIMINAL OFFENCE  In order to attract the protection, the statement a person makes as a result of their religious view - cannot be MALICIOUS OR HARASS, VILIFY OR INCITE HATRED AGAINST A PERSON OR GROUP; AND MUST NOT ADVOCATE FOR THE COMMISSION OF A SERIOUS CRIMINAL OFFENCE  Can only be protected if it is made in good faith IT WILL EFFECTIVELY HAVE A TRUMP CARD OVER OTHER DISCRIMINATION ACTS  Trumps protection of race, sex, disability, and age acts  This is effectively to try and ensure that people could make statements of their religious beliefs that had to do with those factors, as long as those statement did not harass, vilify or incite hatred on those factors Discuss in groups using relevant evidence and by adopting equality as a critical lens. Consider the following points:  The Bill potentially weakens existing protections for LGBTIQ+ people, women, people with disabilities, and those from diverse racial and cultural backgrounds.

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If the bill had been law when Rugby Australia sacked Israel Folau, he might have chosen to pursue a federal discrimination case o He was a Rugby player who on twitter made some comments which were in line with religious views - certain people burning in hell o He lost playing position o Took them to court o He got a settlement The Bill includes “employer conduct rules” for employers with annual revenue over A$50 million. This provides that a rule restricting or preventing an employee from making a religious “statement of belief” outside of work is not reasonable. o Prevents any big employer from restricting or preventing employees from making religious statements of belief  Theoretically their bottom line is going to be ok even if someone goes rogue

HOW TO ANALYSE AN ISSUE USING THE CRITICAL LENS OF EQUALITY: 

Formal equality

Substantive equality

Equality of application/procedural equality

Equality of access

Equality before the law

Equality in law

Non-discrimination principle

Positive discrimination Equality of outcome

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FORMAL EQUALITY - just because a company makes a lot of money, not a substantial ground to say 'we can't control our employees and what they are saying' o Discriminating against people based on their employment - free pass if you work from google - breach of formal equality requirements o The bill applies equally to everybody  It doesn’t have any criteria to differentiate different classes of people, for people of that religion as a whole  The bill defines religious belief - a person who is speaking from a secular/atheist position  Might have no belief but claim it is from a religious view  Largely from a formal equality perspective, the idea of this bill effectively ticks these boxes. Difficulty comes on how the actual operation/outcomes of the law are going to affect people

SCENARIOUS  A Christian may say that unrepentant sinners will go to hell, an example cited in the Explanatory Memorandum to the second version of the draft Bill, which mirrors the facts of Israel Folau’s case o SHOULD CHRISTIANS BE ABLE TO SAY UNREPENTFUL SINNERS WILL BURN IN HELL? o DOESN'T THAT INHERENTLY RELATE TO HATRED? HOW CAN IT BE SAID IN GOOD FAITH?

MAYBE IT IS JUST A STATEMENT FROM THE BIBLE? - NO MALICE INTENT TOWARDS INDIVIDUAL/GROUP, IT IS JUST SAYING WHAT THE BIBLE SAYS o FREEDOM OF SPEECH? CONSTITUTIONAL PROTECTION?  WHAT ARE THE ACCEPTABLE LIMITS OF FREEDOM OF SPEECH? o IS IT ACTUALLY EQUALLY APPLICABLE? - FAMOUS OR NOT?  CERTAIN PEOPLE WHO ARE SEEN TO HOLD A PUBLIC PROFILE ARE HELD TO A DIFFERENT LEVEL - IS THIS APPROPRIATE? PRIVACY? A doctor may tell a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary (Explanatory Memorandum) o TENSION BETWEEN SOCIAL NORMS AND PEOPLE'S RIGHT TO SAY WHAT THEY WANT o DIFFERENCE BETWEEN GENERAL STATEMENT AND TOWARDS A PARTICULAR PERSON o IT IS YOUR PERSONAL VIEW RATHER THAN A PROFESSIONAL VIEW o PERSONAL/PROFESSIONAL BOUNDARIES? o DIFFERENCE BETWEEN SAYING PERSONAL OPINON AS OPPOSED TO PUBLISHING THAT ON A SOCIAL MEDIA PLATFORM THAT MANY PEOPLE ARE ABLE TO ACCESS o WORK OUT HOW LEGISLATION CAN BE FIXED - maybe it doesn’t apply to any professional under codes of ethics? An employer can ask a prospective employee whether they observe any holy days during which they can't work to determine if they can fulfil the inherent requirements of the work (EM) o Ramadan?  If it is just a conversation to gather information, it is fine  But it depends on how it is approached  Reduced capacity to work? Does it cross a line - bias?  Laws are seemingly ok on appearance, can have substantial impacts on different cases  What can we do to address laws that look ok on paper but not in practice o NEED GOOD DEPTH ON ARGUMENTS, BUT ALSO GOOD RECOMMENDATIONS TO ADDRESS THIS FACTOR, AND HOW TO BRING IT TO PRACTICE  i.e construction worker in Ramadan - not allowed to use a person's religion as the basis whether to provide them with work, accommodation etc. - maybe negotiating terms for specific periods - leave with no pay etc  I want to employ you but I don’t want to lose money RECOGNISING THEY HAVE CAPACITY TO WORK, ALSO WORKING OUT A WAY HOW THEY CAN PARTICIPATE IN LINE WITH THE CAPACITIES remedial effect of substantive equality  Emphasis law reform positions - can input recommendations as we go through it, or a section at the end. Need to be rooted in the argument and sensible o

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