On 30 August 2016 the Victorian Attorney-General introduced into the Victorian lower house the Equal Opportunity Amendment (Religious Exceptions) Bill 2016. The Bill proposes to “amend the Equal Opportunity Act 2010 to modify the religious exceptions in relation to the employment of a person by religious bodies and schools”. I would like to suggest that, if enacted, it will fundamentally impair the religious freedom of faith-based organisations. In fact, it might also be found to be constitutionally invalid and of no effect.
The Current Law
The Victorian Equal Opportunity Act 2010 makes discrimination on various prohibited grounds unlawful in a range of areas of activity. In particular, it makes discrimination in the area of employment (hiring and firing, the conditions of work) unlawful where such decisions are based on “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” (to quote the Bill). The significance of this list of prohibited grounds are that these are areas where faith-based schools or other organisations will often face fundamental religious freedom issues in making employment decisions.
A Roman Catholic school, for example, may take the view that, since the church teaching for millennia has been that sex should only take place between a man and a woman who are married to each other, it will not employ a single teacher who is openly living with a sexual partner, whether of the opposite sex (this would perhaps fall under “lawful sexual activity” or “marital status”) or of the same sex (where “sexual orientation” may be an issue.) A faith-based Protestant school may take a similar view, and if it sees part of its mission as commending the truth of Biblical Christianity to its pupils and the parents of its pupils, may believe that that it should not employ a teacher who is an atheist or a Muslim (“religious belief or activity”), as this will undermine its message. An Islamic school may believe also that sex outside marriage is wrong, and so not be happy to employ a single parent who has chosen to have a child outside marriage (“parental status”).
At the moment the Act recognises that the religious freedom rights of these institutions need to be balanced with the rights of others not to be discriminated against by providing for what it describes in the heading to Part 5 as “GENERAL EXCEPTIONS TO AND EXEMPTIONS FROM THE PROHIBITION OF DISCRIMINATION”. In particular, s 82(2) deals with “religious organisations” generally and s 83(2) deals with “religious schools”, Section 83(2) provides:
(2) Nothing in Part 4 applies to anything done on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a person or body to which this section applies in the course of establishing, directing, controlling or administering the educational institution that—
(a) conforms with the doctrines, beliefs or principles of the religion; or
(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.
I have commented previously on these provisions when noting an earlier private member’s Bill which dealt with the right of schools to require students to share school values. I noted there, referring to another prior comment on the topic, that there are important reasons behind these “exceptions and exemptions”.
Religious persons seek to live their whole lives, not just their time in religious meetings, in service to their God. Those who disagree with those religious views are not required to be a part of the religious community. But for those who are, expression of their commitment to their beliefs will involve decisions about moral issues and the way that they wish to model their religious beliefs to each other and, for schools, to their children.
As Paul Kelly has commented in The Australian (May 18, 2016)
“The exemption from anti-discrimination law for religious institutions and schools allows them to retain their religious character. It is a cornerstone for religious freedom in this country.”
The fact is that Christian schools, and other religious schools, are aiming to model the life of a whole community with shared religious beliefs (and hence moral values). That is why the commitment of the Maths teacher, or the gardener, or the receptionist, may be just as important as that of the religious studies teacher.
There is also an excellent recent article by Professor Helen M Alvaré, “The Opposite of Anarchy and the Transmission of Faith…” (2015) where she notes that questions of “sex, marriage and parenting” are precisely the areas where many of society’s current values conflict with those taught by the Christian church for thousands of years. In those circumstances it is not surprising that the Roman Catholic church, and other religious groups, would seek to pass on community values to children by intentionally setting up learning communities where children learn about the beauty of the Christian world-view. She says:
It is not clear how religious leaders and families would pass on their faith in this milieu, without consistent and persistent teaching, in word but also in deed…
It is obviously true that children will be more inclined to believe what their faith teaches, and that it is “doable” in their lives, if they have before them the example of teachers faithfully living out their religious beliefs with peace and integrity. This needs to be acknowledged as a matter of common sense: the person of the teacher importantly influences the student. (at p 9)
The Proposed Amendments
The proposed amendments will have a significant impact on these important principles. They are designed to qualify the general provisions of sections 82(2) and 83(2) by adding the following (see cl 4 of the Bill):
“(3) Nothing in Part 4 applies to anything done in relation to the employment of a person by a person or body to which this section applies where—
(a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and
(b) the person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that the person does not meet that inherent requirement.
(4) The nature of the educational institution and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).”.
(It should be noted that another amendment makes it clear that s 83(2) as it currently stands will not apply to “employment decisions”, to which in future the new subsections only would apply. However, the amendments do not operate in relation to s 82(1), which provides an exemption in relation to the appointment of clergy and those who engage in a “religious observance or practice”. In this amendment at least the ability of churches to appoint their ministers is not affected.)
Effect of the Proposed Amendments
The effect of the amendments, however, is to seriously undercut the religious freedom of many religious schools and charitable organisations, and indeed to undermine the very reason for their existence. While at first it might seem reasonable for an organisation to be required to show that a maths teacher or a janitor being a believer is part of the “inherent requirements” of the position, the crucial question will be: who makes that call? who decides what is important, and what is not, in the religious life of the organisation?
This point has been made well by commentator Murray Campbell in his post “Incoherent ‘inherent requirement’ test” (2 Sept 2016):
[I]s it reasonable for a Government to determine what constitutes required religious adherence or not? Is it the Government’s role to dictate theology and ministry practice? Does the Government have the necessary skills and knowledge required to adequately understand theology and therefore make the right judgement regarding the question of what is inherent?
It may be added that the track record of Victorian courts deciding these matters is not very encouraging. In particular, in Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors  VSCA 75, the majority of the Victorian Court of Appeal felt free to come to the conclusion that “doctrines” of the Christian faith were to be confined to matters dealt with in the historic Apostles’ Creed and Nicene Creed, neither of which mentioned sexual activity- see paras -. (For more comment on this decision see a previous note.) The secular judges lectured the Christian group concerned as to how it should have interpreted its own faith. As the dissenting judge in that case, Redlich JA, put it later in the decision at para :
Neither human rights law nor the terms of the exemption required a secular tribunal to attempt to assess theological propriety. The Tribunal was neither equipped nor required to evaluate the applicants’ moral calculus.
Yet this very task seems to be what is given to the decision-maker required to assess whether certain beliefs or behaviour of an employee of a religious organisation or school are an “inherent requirement” of the position. True, the amendments refer to “doctrines, beliefs or principles” rather than merely “doctrines”, and proposed cl 83(4) requires consideration of the “nature” of the organisation and how it is conducted. But the very task of making these judgements would seem to require secular tribunals or courts to make nice theological judgments on hotly debated issues.
Possible Invalidity of the Proposed Amendments
While these amendments, then, seem to be a bad idea, I would like to also briefly discuss the possibility that they are constitutionally invalid. I can’t develop the argument in detail, but I think this matter needs careful consideration.
The Commonwealth Constitution has as one of its functions the allocation of law-making responsibility between the Federal and the various State and Territory Parliaments. Where there are multiple legislative bodies there is always the dilemma of conflicting commands. The Constitution s 109 resolves that clash in favour of the Commonwealth Parliament.
The Commonwealth Sex Discrimination Act 1984 (“SDA”) deals with the topic of discrimination on the grounds of sex, marital status and sexual orientation. Where there are different rules provided in these areas by a State, then the Commonwealth law must prevail. This was seen in the early days of discrimination legislation in Australia, when in the decision in Viskauskas v Niland  HCA 15; (1983) 153 CLR 280 the NSW law on racial discrimination was held to be invalid because the Commonwealth had “covered the field” in its Racial Discrimination Act 1975 (“RDA”).
Later, however, the Commonwealth amended the RDA to express its intention not to “cover the field”, and inserted similar provisions in other discrimination legislation. Currently the SDA s 10 relevantly provides:
(2) A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the ground of sex, discrimination on the ground of sexual orientation, discrimination on the ground of gender identity, discrimination on the ground of intersex status, discrimination on the ground of marital or relationship status, discrimination on the ground of pregnancy or potential pregnancy, discrimination on the ground of breastfeeding or discrimination on the ground of family responsibilities.
(3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act. (emphasis added)
This means that State laws on discrimination on the grounds noted above may continue to operate, so long as they are “capable of operating concurrently” with the SDA. Clearly this will mean that where a person is bound to do an act under the Commonwealth law, but forbidden from doing it by the State law, that the State law will be inoperative. But the difficult question which arises is, suppose a person is permitted to do something under the Commonwealth law, but forbidden from doing it under State law, is there a relevant clash?
There do not seem to have been many such cases. But one example may be seen, outside the specific area of discrimination law, in Bitannia Pty Ltd & v Parkline Constructions Pty Ltd  NSWCA 238 (28 August 2006). Without going into the details, in broad terms a defence which was available under Commonwealth law would have been precluded from being raised if the relevant State law was operative. The NSW Court of Appeal held that, since this was the case, the State law was inoperative to that extent. This was because of “the existence of a right arising under a Commonwealth law and the direct impairment of its enjoyment, as a result of the operation of a State law”- at . Another, older, example of this sort of principle can be seen in Colvin v Bradley Brothers Pty Ltd  HCA 41; (1943) 68 CLR 151. There Commonwealth law gave a right to employers to employ women on certain machines, but State law prohibited such employment. In the circumstances the State law was inoperative, as it would have impaired the enjoyment of a right given by the Commonwealth law.
Under the SDA s 37 provisions relating to discrimination in employment are said not to apply where those provisions would affect an
act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion
In relation to religious schools, s 38 SDA provides:
(1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Each of these provisions would allow a religious organisation, or a religious school, to adopt a policy that would involve not hiring, for example, a person advocating and living out a policy that favoured sex outside marriage, because hiring such a person would either inflict “injury to the religious susceptibilities” of believers, or not be in conformity with the “doctrines, tenets or beliefs” of the religion.
However, such a school, if the proposed Victorian amendments were enacted, would be obliged to further prove (to the satisfaction of a secular court or tribunal) that such a policy was an “inherent requirement” of the relevant position. It seems fairly clear that this would be a “direct impairment” by a State law of a right given by a Commonwealth law. As a result, it seems likely that these provisions of the Victorian law would, if enacted, be “inoperative” by virtue of s 109 of the Constitution.
The proposed amendments are bad policy, in that they seek to restrict the religious freedom of organisations and churches which operate to preserve that freedom, and the values of the religions that conduct them. (As others have pointed out, other types of organisations set up to promote secular aims, such as political parties or ethnic minorities, are not being caught up in the “inherent requirements” net.)
It is also arguable that the amendments take away rights given to religious bodies under Commonwealth law, and hence are in fact likely to be inoperative. All in all it would be sensible for these amendments to be withdrawn.