The recently appointed new CEO of the Essendon Football Club in Victoria, Andrew Thorburn, has been pushed out of his job on account of views expressed by the church he belongs to and on whose board of management he sits. Those views, which even the club itself accepts were not stated personally by Mr Thorburn and which had to be found by scouring a database of sermons back to 2013, represent views on moral issues that have been shared by Christians, Muslims, Jews and many other religious believers for a long time. They are not “radical” or “hateful” or “bigoted”. It is arguable that the Club has breached Victorian anti-discrimination law.

What happened?

The events of the past few days are reported widely in the press (see here from The Guardian, here from The Age). This is a major story- within Australia, the brand of football played by Essendon (Australian Rules) has a passionate following in Victoria and, more recently, in other States and Territories, and the Essendon club is a famous and popular top-tier club (though recently having seen a number of issues around its management and operations). In brief, Mr Thorburn was recruited as someone with top managerial experience in the banking sector, and a long-time Essendon fan. But as soon as the announcement was made, it was apparently discovered that he was a member of the board of management of a church called “City on a Hill”. The main congregation of this church is in Melbourne, though it oversees other congregations around Victoria and elsewhere in Australia. It is linked with the Anglican Church but has its own corporate governance.

It is reported that comments made in sermons linked on the church website included remarks about abortion and homosexuality. (They no doubt included remarks about a lot of other issues concerned with proclaiming the gospel of Jesus Christ, but these are the ones that have been flagged as upsetting by critics.) It is crucial to see what was actually said. The “media story” here has been to repeat that the church “equated abortion with concentration camps and claims “practising homosexuality is a sin””.

Here is what (to its credit) the Guardian reports on the topics with more detail:

A City on a Hill article from 2013, titled Surviving Same Sex Attraction as a Christian, advises those who “struggle with same-sex attraction” to “speak to a mature Christian whom you trust, so you can receive the support and accountability you will need in the long term to survive these temptations”.

Those views were reiterated in a 2016 sermon stating “practising homosexuality is a sin, but same-sex attraction is not a sin”….

Another sermon, published in 2013 and titled What Should Christians Think About Abortion, said: “Whereas today we look back at sadness and disgust over concentration camps, future generations will look back with sadness at the legal murder of hundreds of thousands of human beings every day through medicine and in the name of freedom.”

So yes, the church believes that engaging in homosexual activity is wrong- a view that until recently was common among all the mainstream religious faiths. And yes, the church believes that unrestricted abortion at any time up to birth is the killing of innocent human beings. This again is a view common to many religions (notably the Roman Catholic Church.) Of course, if one were to take the time to review the whole of these sermons one would no doubt find nuances in the way this was presented, and compassion for those impacted by these issues. But it seems that nuance is not what is needed when someone is to be hounded out of their job.

These comments were brought to public notice, and the high profile nature of AFL in Victoria is such that the Victorian Premier, Daniel Andrews, was asked to provide his opinion on the appointment at a news conference. He was blunt:

“Those views are absolutely appalling,” Mr Andrews said about the church’s stance. “I don’t support those views, that kind of intolerance, that kind of hatred, bigotry. It is just wrong.

“To dress that up as anything other than bigotry is just obviously false.”

Australian Financial Review, Oct 4, 2022

The next day Mr Thorburn tendered his resignation, but it seems clear that he did so because of pressure from the Board. From the President of the Club:

“As soon as the comments relating to a 2013 sermon from a pastor, at the City on the Hill church came to light this morning, we acted immediately to clarify the publicly espoused views on the organisation’s official website, which are in direct contradiction to our values as a club,” Mr Barham said.

“The board made clear that, despite these not being views that Andrew Thorburn has expressed personally and that were also made prior to him taking up his role as chairman, he couldn’t continue to serve in his dual roles at the Essendon Football Club and as chairman of City on the Hill.”

Australian Financial Review, Oct 4, 2022

Mr Thorburn later released a comment on LinkedIn, in part of which he said:

[T]oday it became clear to me that my personal Christian faith is not tolerated or permitted in the public square, at least by some and perhaps by many. I was being required to compromise beyond a level that my conscience allowed. People should be able to hold different views on complex personal and moral matters, and be able to live and work together, even with those differences, and always with respect. Behaviour is the key. This is all an important part of a tolerant and diverse society.

What happens now?

The background to this decision in the increasing hostility of Western communities to mainstream Christian views, and its possible implications going forward, are spelled out with great clarity in posts by Stephen McAlpine (here and here) and Murray Campbell (here and here), which I recommend reading. What I would like to address here are the possible legal implications.

The Victorian Equal Opportunity Act 2010 (the “EOA”) makes it unlawful to discriminate against someone in employment (s 18) “by dismissing the employee or otherwise terminating his or her employment”, where that decision is on the basis of the attribute of  “religious belief or activity” (s 6(n)), or  “personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes” (s 6(q)).

It seems fairly clear, as noted already, that while formally Mr Thorburn resigned, he was in effect forced to do so, and that would seem to be dismissal or termination. It seems clear from what has been said that a significant reason for this dismissal was either his own personal faith, or else his “association” with an organisation (City on a Hill church) with particular religious beliefs.

The Essendon Board said:

“This is not about vilifying anyone for their personal religious beliefs, but about a clear conflict of interest with an organisation whose views do not align at all with our values as a safe, inclusive, diverse and welcoming club for our staff, our players, our members, our fans, our partners and the wider community,” Barham said on behalf of the football club.

It is unclear what “personal” means here. If it means that Mr Thorburn was entitled to his views so long as he did not act on them, that is now how religion works! It may be an attempt to argue that the decision was not based on Mr Thorburn’s own views, but those of the church he was a part of. But in that case, of course, it will be an example of “association” discrimination, which is also unlawful.

It seems likely that what has happened here is “direct discrimination”. This is defined as follows in s 8 of the EOA, which provides:

(1)     Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

(2)         In determining whether a person directly discriminates it is irrelevant— …

        (b)     whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

EOA, s 8

It seems that there has been unfavourable treatment (dismissal) “because of” either Mr Thorburn’s own religious views, or else those of his church. And even if this was said to only be one of the reasons for the action, it will be unlawful.

One response might be that moral views on abortion or homosexual activity are not “religious”. But this would be to adopt a very narrow definition of a term which receives strong human rights protection under international law (such as under art 18 of the International Covenant on Civil and Political Rights). The word “religious” here cannot mean simply “relating to how one worships” or “connected with the identity of God”. Under art 18(1) of the ICCPR what is protected includes “freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching” (emphasis added).

However, an argument might be made that what has been applied is a policy that would be applicable to anyone, regardless of religious belief. The club may say: “we have decided that no person who does not support unlimited abortion rights, and no person who believes that homosexual activity is wrong, can work for our club, whether their views come from religious belief or not. Nor can they work for us if they are in a leadership role with an association which espouses those views.”

If that argument was accepted (and to be clear, in this case it would be quite weak, especially as the decision has been very directly linked to the specific church)- but if it were accepted, then arguably what has been done might count as indirect discrimination. Under s 9 of the EOA:

 (1)     Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice— 

        (a)     that has, or is likely to have, the effect of disadvantaging persons with an attribute; and 

        (b)     that is not reasonable. 

    (2)         The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable. 

    (3)     Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following— 

        (a)     the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice; 

        (b)     whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice; 

        (c)             the cost of any alternative requirement, condition or practice; 

        (d)     the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice; 

        (e)     whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of     an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

Here, if the above requirement was imposed, it seems clear that it would disadvantage persons with the attribute of a religious belief about abortion or homosexual practice (over and above others in the community who did not hold such a belief.) The onus would then be on the club to show that such a condition was “reasonable”. It would seem that there are a number of proportionate ways of dealing with this situation short of terminating the employment of a recently hired executive. While it would be reasonable to impose conditions of this sort for employment in a “pro-choice” advocacy group, or a “Gay Pride” organisation, is it really essential to delve into the moral positions of senior executives in a football club?

Comment on this issue has also been shared by employment specialist Josh Bornstein, not known as a Christian himself:

‘Religious belief or activity’ is a protected attribute under the Victorian Equal Opportunity Act. This means that an employer is required not to discriminate against an employee by reason of religious belief or activity.

— Josh Bornstein (@JoshBBornstein) October 4, 2022

It is also possible that this action could be seen as unlawful under the Fair Work Act 2009 (Cth.) Under s 351 of that Act it is unlawful to take “adverse action” against an employee on the basis of their religion, unless it can be shown that the action was taken “because of the inherent requirements of the particular position concerned” (s 351(2)(b)). Similar issues to those noted above would arise in an action based on this provision.

Whether any of these legal remedies will be invoked is not clear. But that they exist should give some pause to employers who espouse “diversity” but ignore diverse views on important religious and moral issues held by their employees.