Some of Victoria’s “inherent requirements” amendments may be unconstitutional

The Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 into its Parliament on 30 August 2016. It has passed the Legislative Assembly without amendment, and is presently before the Legislative Council. The Bill proposes the amendment of the Equal Opportunity Act 2010 (Vic) to make it more difficult for a religious body to claim that it is not “discriminating” when it declines to hire, or fires, someone whose behaviour or convictions is contrary to the ethos of the body. The amendments introduce an “inherent requirements” test which must be satisfied in order for such an action to be viewed as falling outside the prohibition in the legislation on detrimental treatment based on “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” (the “Victorian prohibited grounds”).

I have commented in a previous post as to why I think this is poor legislation from a policy perspective.[1] In that previous post I briefly noted that an argument could be made that some of the amendments, at least, would be unconstitutional. Since that previous post I have looked into the area further and am fairly sure that this is the case. Here I want to develop the case a bit further. 

To sum up, it is likely that some of these provisions will be held to be constitutionally inoperative, as a result of s 109 of the Commonwealth Constitution. These provisions overlap significantly with the Commonwealth Sex Discrimination Act 1984 (“SDA”), which prohibits discrimination in the employment area based on “sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities” (s 14; the “Commonwealth prohibited grounds”). In particular, the specific clash may arise on the particular overlapping grounds of sex, sexual orientation, marital status, and gender identity (the “overlapping grounds”).[2]

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.

Section 109 renders State law inoperative where it clashes with Federal law. One recognised type of clash is where the Federal law has “covered the field”. This type of clash, however, is not applicable to the overlapping grounds. In Viskauskas v Niland (1983) 153 CLR 280 the High Court ruled that the NSW provisions of the Anti-Discrimination Act 1975 relating to racial discrimination were inoperative due to the covering of the relevant field by the Commonwealth Race Discrimination Act 1975. To overcome that problem, and allow State law on the area of discrimination to have concurrent operation, since that time all the Commonwealth discrimination laws have contained a “non-covering” clause to make it clear that State law on the matter is to be allowed to operate generally, so long as it does not clash in other ways. Such a provision is to be found in s 10 of the SDA:

 SDA 10 (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 further question that 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? In short, as will be shown below, the authority of the High Court is that in such a case, the State law is also inoperative.

One example may be seen, outside the specific area of discrimination law, in Bitannia Pty Ltd & v Parkline Constructions Pty Ltd [2006] NSWCA 238. 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 [115]. Another, older, example of this sort of principle can be seen in Colvin v Bradley Brothers Pty Ltd [1943] 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.

Another case where this issue arose was Dickson v The Queen [2010] HCA 30. There Commonwealth law made a conspiracy to steal Commonwealth property a crime in certain circumstances, but Victorian law imposed criminal liability in a narrower set of circumstances. The High Court ruled that the Victorian provision was inoperative. At paras [13], [15] they summed up previous authority on the matter in this way:

[13]       The statement of principle respecting s 109 of the Constitution which had been made by Dixon J in Victoria v The Commonwealth[3] was taken up in the joint reasons of the whole Court in Telstra Corporation Ltd v Worthing[4] as follows:

“In Victoria v The Commonwealth[5], Dixon J stated two propositions which are presently material. The first was:

‘When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.’ …

[15]       The passage in Telstra which is set out above was introduced by a discussion of earlier authorities which included the following[6]:

“Further, there will be what Barwick CJ identified as ‘direct collision’ where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided[7]. Thus, in Australian Mutual Provident Society v Goulden[8], in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question ‘would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act 1945 (Cth)’. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question[9]. But that is not this case.” (emphasis added)

The Court stressed, at [19], that this operation of s 109 was important:

not only for the adjustment of the relations between the legislatures of the Commonwealth and States, but also for the citizen upon whom concurrent and cumulative duties and liabilities may be imposed by laws made by those bodies.

They concluded that the State law was inoperative in the following passage:

[22]       The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code. In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream[10], the case is one of “direct collision” because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law. (emphasis added)

These remarks are directly applicable the situation created by the “overlapping prohibitions” which would be set up under the proposed Victorian amendments,

Under the SDA s 37 provisions including those relating to discrimination in employment (under s 14) 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. (emphasis added)

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 (arguably their “marital status”), 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. To adapt the language of the Dickson judgment, the Victorian law will “alter, impair or detract from the operation of the federal law by proscribing conduct of the [school or organization] which is left untouched by the federal law”, and “the State law, if allowed to operate, would impose upon the [school or organization] obligations greater than those provided by the federal 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.

If further support for this view were needed, it would be provided by the cases dealing with the question arising where the Cth SDA allowed a single woman to get access to IVF, but the State laws at the time did not. See MW, DD, TA & AB v Royal Women’s Hospital, Freemasons Hospital and Victoria [1997] HREOCA 6 (5 March 1997), itself alluding to an earlier SA decision:

There is much merit in the complainants’ argument and I note that the South Australian Full Court recently considered a similar matter. In Pearce -v- South Australian Health Commission and Ors(unreported, Supreme Court of South Australia – 10 September 1996), the issue before the Court was the effect of s.22 of the Sex Discrimination Act 1984 (Cth) with reference to s.13 of the Reproductive Technology Act 1988 (SA) which also provided that IVF treatment should not be provided to unmarried women. The plaintiff challenged the application of s.13(3) and (4) of the South Australian Act because she alleged they were inconsistent with the Sex Discrimination Act. The Court stated:

“In the present case it is not difficult to discern a “direct conflict” between the Commonwealth legislation and the South Australian legislation that term was used by Gibbs CJ in University of Wollongong -v- Metwally  (1984) 138 CLR 447 at 455-456. It is not possible to obey the dictates of each law in circumstances where each applies.”

The Court declared that s.13 of the SA Act was inconsistent with the provisions of the Sex Discrimination Act 1984 (Cth).

There is also support for this view from one of the main Australian discrimination law textbooks. In Rees, Rice and Allen Australian Anti-Discrimination  Law (2nd ed; Federation, 2014) at para [3.3.11] the authors explicitly refer to s 38 SDA and the fact that the Cth law is “more generous” to employers than some State laws. They say:

There are also instances in which State legislation, if valid, appears to remove or diminish an entitlement granted by Commonwealth law to various organisations to engage in conduct which would otherwise be unlawful discrimination. For instance, s 38 of the Cth SDA… [citing the defence]. In some States, however, conduct of this nature is unlawful because it falls within a general prohibition against discrimination in employment on these particular grounds and the exceptions granted to educational institutions established for religious purposes to engage in conduct which would otherwise be unlawful if performed by others are not as broad as those which exist in the Cth SDA. (emphasis added).

In effect, the authors are saying that s 109 would probably invalidate these differing State provisions. See also previous para [3.3.10] where the authors say that, from an “employee rights” perspective, provisions of the NSW ADA limiting discrimination actions by excluding small businesses (in contrast to the Cth SDA which applies to all businesses) are probably invalid- they say the NSW Act “purports to diminish” the right given to employees. The same language can be about this right given to religious schools and organisations by the Commonwealth SDA, that the Victorian law will “purport to diminish” the right.

To sum up, in those areas where the prohibited grounds of discrimination set out in the Commonwealth SDA and the proposed amended Victorian EOA overlap- in the specific areas of sex, sexual orientation, marital status, and gender identity – the proposed Victorian laws would remove a liberty given to religious organisations and schools by the Commonwealth law, to make hiring and firing determinations in accordance with the criteria of their actions “conform[ing] to the doctrines, tenets or beliefs of that religion” or doing what is “necessary to avoid injury to the religious susceptibilities of adherents of that religion”. Since the Victorian amendments purport to add the intended “stricter” criterion of “inherent requirements”, those amendments would impair the operation of the Commonwealth law, and in respect of those overlapping grounds would be inoperative in accordance with s 109 of the Constitution. It would seem to be futile for the Victorian Parliament to enact laws which are inoperative.

[1] See also Murray Campbell, “Victoria about to Pull the Plug on Religious Freedom” (Sept 14, 2016) , and Mark Sneddon, “Victoria’s Equal Opportunity Act: Inherent Requirements and the Problem of Discrimination” (Sept 22, 2016) ABC Religion and Ethics, .

[2] In particular, the Commonwealth law does not prohibit religious discrimination, so this will not engage the operation of s 109. For the moment it will be assumed that the other Victorian grounds are also not replicated in the Commonwealth list, though there may be some practical overlap.

[3]           (1937) 58 CLR 618 at 630; [1937] HCA 82.

[4]           (1999) 197 CLR 61 at 76‑77 [28]; [1999] HCA 12. See also Local Government Association of Queensland (Incorporated) v State of Queensland [2003] 2 Qd R 354 at 373 [51]; Loo v Director of Public Prosecutions (2005) 12 VR 665 at 688 [40].

[5]           (1937) 58 CLR 618 at 630.

[6]           (1999) 197 CLR 61 at 76 [27].

[7]           Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253 at 258‑259; see also at 270 per Taylor J, 272 per Menzies J; [1968] HCA 2; Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 at 406; [1977] HCA 51; Dao v Australian Postal Commission (1987) 162 CLR 317 at 335, 338‑339; [1987] HCA 13.

[8]           (1986) 160 CLR 330 at 339; [1986] HCA 24.

[9]           Ex parte McLean (1930) 43 CLR 472 at 483; [1930] HCA 12; Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at 57‑58; [1986] HCA 42.

[10]         (1968) 117 CLR 253 at 258. See also at 272 per Menzies J.