Today’s correspondent asks:
- Do people who want to volunteer for an emergency service have protection under anti-discrimination laws if they are refused membership and believe that they were discriminated against under the usual grounds (race, sex, religion etc)?
- The emergency services have paid employees and volunteer members; do the various anti-discrimination laws apply equally to both groups? For example in relation to promotion (volunteers get promoted to various ranks) and access to courses.
I’ll refer to the relevant Commonwealth laws. The Commonwealth doesn’t have a comprehensive anti-discrimination Act, rather it has specific ones:
- Racial Discrimination Act 1975 (Cth);
- Sex Discrimination Act 1984 (Cth);
- Disability Discrimination Act 1992 (Cth); and
- Age Discrimination Act 2006 (Cth).
The Sex Discrimination Act 1984 (Cth) deals with sex discrimination as well discrimination on the ground of sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding and family responsibilities. The Act prohibits discrimination in the areas of employment and superannuation as well as in the provision of education, goods, services and facilities, accommodation, land transactions and clubs.
With respect to the provision of ‘goods, services and facilities’ s 22 says:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
This would apply to an emergency service when it comes to responding to a request for assistance. To refuse to respond or to respond on different terms because of the callers’ gender etc would be unlawful.
This could, arguably apply to an emergency service in terms of the ‘goods, services and facilities’ it provides to members but that’s not the same as the issue of whether its unlawful to discriminate when considering a person’s application for membership.
A club (s 4) is ‘an association (whether incorporated or unincorporated) of not less than 30 persons associated together for social, literary, cultural, political, sporting, athletic or other lawful purposes that: (a) provides and maintains its facilities, in whole or in part, from the funds of the association; and (b) sells or supplies liquor for consumption on its premises’. Clearly an agency like the SES is not a club nor is it an employer of its volunteers.
There is an exception for voluntary bodies. Section 39 says:
Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, in connection with:
(a) the admission of persons as members of the body; or
(b) the provision of benefits, facilities or services to members of the body.
A voluntary body does not include ‘a body established by a law of the Commonwealth, of a State or of a Territory’. The various Emergency Services (except St John Ambulance in WA and the NT) are all established by laws of the relevant states or territories so that exemption does not apply to them.
There are similar provisions in the Disability and Age Discrimination Acts.
The Racial Discrimination Act is broader. It says (s 9):
It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
Without defining every term in that section, prima facie that would make it unlawful to discriminate against a member of an agency such as the SES on the basis of race.
The problem for the Commonwealth is that it has limited capacity to make laws. Laws of the Commonwealth have to be a law about a subject matter set out in the Constitution. Discrimination isn’t one of those areas, so the Commonwealth law is only able to regulate areas that fall within the Commonwealth’s legislative authority. To fill the gaps there is relevant state laws.
I don’t know what jurisdiction my correspondent is in, so I’ll look at NSW State Law. The Anti-Discrimination Act 1977 (NSW) is very similar to the Commonwealth laws. Again there are exemptions for volunteer bodies but that would not include one of the states emergency services (s 57).
The agencies are therefore bound by the Anti-discrimination legislation and must not discriminate in the way it provides its services but there are no specific rules that would seem to apply to the question of whether to accept a person’s application for membership or the terms on which that application is accepted.
What follows, much to my surprise is that it appears that the anti-discrimination laws don’t apply in the circumstances described. This is confirmed by:
Justice Connect in Victoria – ‘Discrimination in recruiting employees and volunteers:
The anti-discrimination laws in the Equal Opportunity Act do not specifically apply to volunteers. However, anti-discrimination laws may still apply where the volunteering situation gives rise to other areas covered by the Equal Opportunity Act. For example, discrimination laws may apply to protect volunteers with respect to club membership, sporting activities and where goods or services are being provided.
The NSW Anti-Discrimination Board – ‘Volunteers and voluntary organisations’:
Because volunteers are not generally regarded as employees, they may not be covered by most parts of the NSW Anti-Discrimination Act (ADA).
However, the ADA’s sexual harassment provisions do cover volunteers, so it is against the law for a volunteer to be sexually harassed during their voluntary work.
What follows is that people who want to volunteer for one of the emergency services do not appear to have protection under anti-discrimination laws if they are refused membership and believe that they were discriminated against because of age, sex, or disability. There may be protection if they are discriminated against on the basis of race.
Where a person is a member then the anti-discrimination legislation provides greater protection for employees than volunteers. The agency cannot discriminate against volunteers where the agency is providing goods, services and access to facilities.
In my previous life as an SES vol, we had a member join who was born with severe disfigurement (not sure how to describe it) to his hands/arms and walked with a significant limp as well as potential issues with his mental capacity (Again not sure how to correctly label this).
We didn’t feel he was a good fit and were hesitant to sign him up but were advised by Region and State that it would open us up to discrimination claims. We allowed him to join but had a number of issues when we tried to do training and he insisted on being treated equal, including for things like chainsaw training. He was never going to be able to hold a saw, let alone operate it safely with his hands and arms the way they were.
Again, rumblings of discrimination. It turned out however, it was his case worker or aid that was pushing the agenda, not him.
We tried to include him as much as possible, but it was very uncomfortable for many. He eventually disappeared into the sunset.
It’s these sort of situations that I struggle with the discrimination claims and concerns. Between his physical and mental capacity issues, he was never going to be able to work safely on a roof, operate a saw, operate the jaws of life, etc. Why are volunteers put through the ringer to try and accommodate these sort of requests?