As reported in this morning’s Age, the Victorian government has introduced legislation to ensure overseas students cannot successfully use equal opportunity laws to receive public transport concessions. There is a case before the Victorian Equal Opportunity and Human Rights Commission alleging the policy that allows domestic but not international undergraduates to receive concessions discriminates on the basis of race.
Providing transport concessions to private full fee-paying overseas students would be very costly. The money used to pay for extending the scheme to these students would have to come from another area of budget and could impact on other service improvements if the entitlement was granted. In addition, it would be inconsistent with the terms of the students’ entry into Australia. When private full fee-paying overseas students gain a visa to study in Australia, they must demonstrate that they are already fully self-sufficient and able to meet all their living expenses, including public transport expenses, while they are here. The students are required to pay substantial fees to study for their degree and, at the same time, they are also not eligible for benefits such as Medicare, Newstart allowance or Austudy. Unlike Australian citizens, permanent residents and students with refugee status whose intention is to live and work In Australia on an ongoing basis, there is no expectation that private full fee-paying students will continue to live in Victoria beyond completing their education.
Pretty clearly this was not, in any case, an instance of racial discrimination. It was a matter of resident status in Australia. But the action brought by the overseas students highlights an aspect of politicised differences that also came up in The Peel case – not all exclusion is bad. To achieve some things – a viable welfare state or a gay bar in these examples – can require keeping some people out. It’s quite different to the various ‘arbitrary’ forms of discrimination equal opportunity law was originally intended to prohibit.
The legislation is interesting for reasons other than these. It is highly unusual in actually naming a specific individual, Elva Zhang, whose name is on the legal action against the Victorian government. The reason is Victoria’s new Charter of Human Rights and Responsibilities, and Zhang is mentioned to preserve her right to a fair hearing in a civil proceeding. So she is entitled to present her case. She is just not allowed to win.