As previously foreshadowed (see my analysis of the proposals when first announced here) the Victorian government has introduced a Bill into the Parliament of that State seriously limiting the religious freedom of religious bodies and individual Victorian citizens. The Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) was introduced into the Legislative Assembly on October 27 and the second reading was moved on October 28. The Bill is a serious attack on the religious freedom of Victorians, especially to send their children to faith-based schools reflecting a religious world-view.
The Bill amends the Equal Opportunity Act 2010 (Vic) (“EOA”), which is of course Victoria’s main anti-discrimination legislation. One of the primary ways that Australian law provides protection for religious freedom at the moment is by way of “balancing clauses” that recognise that this right is an important internationally protected human right, which is not always simply subjected to other rights. But these clauses are regularly characterised as “exemptions” or “exceptions”, and when this is done they are painted as reluctant concessions to the most important claims (not to suffer discrimination). Hence the apparent plausibility of removing these “exceptions”.
In my previous comments I noted that the proposals being put forward would
- remove the right of any religious schools to make staffing decisions based on whether or not the staff member agrees with fundamental moral values being taught by the school, by narrowing the grounds on which a staff member can be hired or fired to “religious belief” alone (and it seems from the way this is worded in the document, to mean that this will apply even to someone hired as a “religious studies” teacher!) This rule will also apply to any organisation “providing services funded by the Victorian Government”.
- impose on all schools and “religious bodies” (however that is defined) a rule that any staffing decision based on religious beliefs must be justified by demonstrating that the “inherent requirements” of the position require such a criterion; the implication being that a secular Victorian tribunal or court will have to determine whether such requirements are applicable by examining the religious beliefs of the body or school for themselves;
- remove completely the current right enjoyed by private Victorian citizens under s 84 of the Equal Opportunity Act 2010 not to be sued for discrimination where they can demonstrate that their action was “reasonably necessary… to comply with the doctrines, beliefs or principles of their religion”.
I will just summarise here which parts of the Bill implement these proposals. I have found it useful in doing so to put together a document which shows what the relevant provisions of the EOA would look like once these amendments have commenced (if enacted in their current form). The document is here for those who would like to use it:
Religious school staffing decisions limited
It is common for religious schools to want to operate in accordance with the ethos and moral values of that religion. An Islamic, or a Jewish, or a Christian school may take the view that in the midst of a sexually “liberated” society, they want to convey through the whole community, the value of sex only being appropriate in marriage between a man and a woman. But suppose a teacher at the school, having been told about this before joining, now decides they can no longer support that moral value. Should a school be required to continue to employ a teacher whose life (and inevitably their life will “teach” the children they are mentoring) contradicts this important value?
Under the current EOA, s 82(2) allows a “religious body” to act in accordance with its “doctrines, beliefs or principles” or in ways which are “reasonably necessary to avoid injury to the religious sensitivities of adherents”. That would justify the difficult decision to let a staff member go if they were in this situation. But under the amended s 82(2), the clause will no longer apply to “employment decisions”. There is now a new provision dealing with employment, s 82A:
(1) A person may discriminate against another person in relation to the employment of the other person in a particular position by a religious body if—
(a) conformity with the doctrines, beliefs or principles of the religious body’s religion is an inherent requirement of the position; and
(b) the other person cannot meet that inherent requirement because of their religious belief or activity; and
(c) the discrimination is reasonable and proportionate in the circumstances.
It will be seen that, first, someone will have to make a judgement about whether a requirement to live in accordance with the ethos of the school is an “inherent requirement” of the position. Who decides if the maths teacher is part of the team conveying important religious messages to students? Second, however, the school can only act in this case if the inherent requirement cannot be met because of “religious belief or activity”. The teacher may say, I still believe, I just interpret the scriptures differently to allow me to live the way I choose. The school will see that as a “religious” difference. But a secular court or tribunal may say, no, that is not a religious matter; what you are concerned about is the person’s “lawful sexual activity” or “sexual orientation”. Thirdly, even if the school overcomes the first two hurdles it will need to show that asking the staff member to stand down is “reasonable and proportionate”! Again, this is a decision that will need to made by a court or tribunal which has no real sympathy for the school’s religious ethos.
Notice that all 3 criteria must be met. Even if the staff member is a “core” religious studies teacher, and so would clearly satisfy para (a), the other criteria will present problems. In fact, let’s suppose an Islamic studies teacher at an Islamic school has become a Christian, and so meets para (b) as well. Even then, para (c) will need to be considered by a secular tribunal: is it “reasonable and proportionate” to stand down the teacher? Perhaps the school should be required to allow this Christian convert to stay as a maths teacher, all the while (from the school’s perspective) undermining the ethos of the school.
It would take too long to explore all the other provisions in the same detail. But, in short, sections 83 and 83A provide similar rules for organisations running schools “conducted in accordance with religious doctrines, beliefs or principles”- presumably the difference from sections 82 and 82A is that some religious schools are currently run by bodies that are not themselves religious. Again, employment decisions under s 83A can only be made on the basis of inherent requirements, religious belief or activity, and only so long as “reasonable and proportionate”.
Religious schools- other decisions
Suppose a religious school wants to make other decisions based on its faith commitments. It declines to allow students to set up a student club which would undermine the school commitment to sexual morality. Under amended s 82, whether they can do so or not will depend on what is “reasonable and proportionate in the circumstances”, as well as being necessary under the school’s doctrines. While this sounds harmless enough, it does again subject school decision making within a religious framework to what a secular court or tribunal regards as “reasonable” and “proportionate”.
Other religious bodies
The amended s 82 and s 82A will also apply to other religious bodies other than schools. Suppose a religious agency which places children in foster care. It believes that it should only place children with a married husband and wife. It declines to place a child with an unmarried couple. Such a decision was held to be lawful under a provision of NSW discrimination law very similar to the current form of Victorian EOA- see OW & OV v Members of the Board of the Wesley Mission Council  NSWADT 293. Yet under the new form of s 82 the religious body will now have to justify its actions as “reasonable and proportionate in the circumstances” before a court or tribunal. And a religious social services charity which sees its care for the vulnerable as a reflection of its religious beliefs (for example the Sikh charity “Turbans 4 Australia”) might be forced to employ as staff those who reject Sikh beliefs unless they can persuade a secular court or tribunal that having the Sikh faith is an “inherent requirement” and “reasonable and proportionate”.
Religious bodies receiving government funds
Amendments included in another part of the Bill imposes conditions on religious bodies providing “government funded goods or services to a person”. Under s 82B the body will be allowed to refuse to provide such services to someone on the basis of the recipient’s “religious belief or activity” if certain conditions are met. It has to be said that this is a very odd provision. I am not aware of any religious body that administers government funded benefits which denies those things to someone on account of that person’s religion. It is almost as if those designing this law do not actually know how religious groups operate! I think s 82B, perhaps intended as some sort of “sop” to religious groups for taking away other rights, could be dropped without any complaint by actual religious bodies.
Religious citizens no longer protected
Finally in this overview, it is worth noting the repeal of s 84 EOA. That provision provides protection to individual religious citizens, not to a corporate religious entity. No sensible reason is provided for the repeal, other than the government noting in its Explanatory Memorandum that the provision as it stands is “anomalous” as it is not present in other Australian discrimination legislation.
These amendments are a serious attack on the right of Victorians to join together in schools and other institutions that reflect their religious beliefs, and to operate those institutions based on those shared commitments. A joint media release from two organisations representing Christian schools, released today, notes that:
Recent private polling demonstrates widespread support for the current employment practices of Christian schools with 78% of Victorians supporting the right of religious schools to employ teachers and other staff who support the values and beliefs of the school, if those values and beliefs are clearly stated. This support was across the political spectrum…
“This polling shows that Australians understand that in a tolerant, multi-faith society, schools should be allowed the freedom to teach their values and beliefs regardless of whether they are Jewish, Muslim, Catholic or Christian schools,” said Mark Spencer of Christian Schools Australia.
“Parents who choose to enrol their children in our schools want an education based on Christian values, which the state school system can no longer provide, and this Bill is trying to squeeze faith out of our schools too,” said Vanessa Cheng of the Australian Association of Christian Schools, “once again the Victorian Government has shown it is completely out of touch with faith communities and does not understand of how our schools operate in practice.”
In my previous comment on these proposals, under the heading “(b) The proposed Victorian law likely to be unconstitutional and invalid”, I pointed out a further problem- that the Victorian proposals take away rights that faith-based schools enjoy under federal law, and hence may in the end be found to be invalid under s 109 of the Constitution. For this and the other reasons referred to above, it is to be hoped that the Bill is not supported by the Victorian Parliament.