Australian inter-State vilification orders overturned

In a very significant decision with wide-reaching Constitutional implications, the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (3 Feb 2017) has overturned two findings of “homosexual vilification” made by a NSW Tribunal against residents of Queensland and Victoria. The complainant in both cases, Mr Garry Burns, alleged that Mr Gaynor and Ms Corbett had breached s 149ZT of the Anti-Discrimination Act 1977 by committing public acts which vilified homosexuals. The NSW Civil and Administrative Tribunal (NCAT) had made orders against both defendants. In this appeal the NSW Court of Appeal rules that the Tribunal had no jurisdiction to make such orders.

While the specific allegations involved vilification on the grounds of sexual orientation, the cases are significant for religious freedom in two ways. One is that such complaints, if made against persons or organisations with religious beliefs on the topic of homosexuality, may be subject to specific balancing clauses designed to accommodate religious freedom. If a resident of one State of Australia may be sued under such a law from any other State in the country, then the standard of protection of religious freedom will be reduced to the lowest common denominator around the country. The second reason that the case is important is that some states have specific religious “vilification” laws, and again if actions under such laws can be taken against residents of other States this may risk reducing the protection given to religious freedom across the whole country.

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Why proposed same-sex marriage balancing clauses would be constitutional and right

Last week I had the privilege of giving evidence to the Australian Senate Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill. (To read my submission, and others, see the pdf links on this page; my submission was considered on 24 January 2017.) The Committee was considering the terms of an Exposure Draft Bill which had been released last year by the Commonwealth Attorney-General, as the sort of legislation which might be introduced were Australians to support change of the law in this way in a plebiscite. (See here for my previous comments on the Exposure Draft.)

While the proposal for a plebiscite on the issue was defeated in Parliament last year, the Senate obviously considers it worthwhile discussing the merits of the Exposure Draft, as it represents to some extent Government thinking on what the change might look like. In particular the terms of reference of the Select Committee were concerned with the protections for religious freedom provided by the Bill. This was the focus of my submission.

I appeared on a panel before the Committee with two other legal scholars, Professor Patrick Parkinson from Sydney University Law School, and Dr Luke Beck from Western Sydney University School of Law. It became apparent that Dr Beck and I did not entirely agree on a number of points. In particular, following his submission, Dr Beck published an opinion piece in The Age, “Why proposed same-sex marriage exemptions would be unconstitutional” (25 January 2017). I would like here to explain why I disagree with that comment.

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Three controversial Victorian bills defeated

A brief update on the status of some proposed Victorian legislation I have previously mentioned as being a bad idea. It is good to see that all three bills have been defeated in the Victorian Parliament. Two of them would have interfered with the running of religious schools, as well as other religious organisations. The third would have created a range of problems in its interaction with Federal marriage law. 

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Freedom of Religion and Balancing Clauses in Discrimination Legislation

An article of mine on “Freedom of Religion and Balancing Clauses in Discrimination Legislation” (2016) Oxford Journal of Law and Religion, doi: 10.1093/ojlr/rww045, has just become available. Those who are interested can download it from the Oxford website here.

The law moves quickly in this area- the article notes the Ashers Bakers case but when it was written the appeal had not been handed down. For those who want an update on that decision it is available in my previous post, “The Ashers “Gay Cake” appeal- one of these things is not like the others” (Oct 25, 2016). The criticisms of the trial decision I make in the article are still applicable to the unsatisfactory appeal decision, which I hope will be overturned if taken on further appeal.

Draft Australian Same Sex Marriage legislation unveiled

Today the Federal Attorney-General, Senator the Hon George Brandis QC, released an Exposure Draft of the legislation that would, if it were to pass the Federal Parliament, introduce same sex marriage to Australia- the Marriage Amendment (Same-Sex Marriage) Bill. There is a good summary of the provisions of the legislation in a press release issued by the Attorney-General. This follows the introduction on 14 September 2016 of an enabling Bill to allow a plebiscite, a popular vote, on the matter to be put to the Australian public, the Plebiscite (Same-Sex Marriage) Bill 2016. That Bill has not yet received any substantive consideration by the Parliament.

Earlier today the leader of the Australian Labour Party Opposition, Bill Shorten, announced that his Party would be voting against the enabling Plebiscite Bill when it reaches the Senate: see “Same-sex marriage: Plebiscite would harm gay and lesbian people, Bill Shorten says” (ABC News). It seems clear, at least if all the cross-bench members who have indicated their intentions maintain those intentions, that the Bill will be defeated in the Senate.

The ALP and the Greens will presumably now be urging the Government to put its legislation directly to a Parliamentary vote. The Government, however, has steadfastly maintained that it went to the recent Federal election with a promised plebiscite as the only route to introduction of same sex marriage, and that if there is no plebiscite, the matter will have to be dealt with by some future Government after the next Federal election. 

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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. 

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“Exemptions” in discrimination laws applying to churches

Australia is in the midst of a Federal election campaign at the moment (thankfully, one which will end on July 2, unlike the one being endured by our friends in the United States, which seems to stretch on interminably!) But law and religion has now emerged as one of the election issues.

This time the question is not about same-sex marriage (SSM), although the various parties’ views on that topic are well-known (at the moment, the Australian Labour Party (ALP) has promised to introduce SSM within 100 days if elected, and the Liberal-National Party Coalition, currently in power, has promised to put the matter to a plebiscite after the election if they are returned.) But the latest question has been raised by a minority, but increasingly influential, Greens Party, which has included as part of its election platform a promise to remove “religious exemptions to federal anti-discrimination law“.

At the moment the Opposition ALP (which is fairly closely aligned to the left-wing Greens on many points) has not made a similar promise, but has noted that it will

review the carve-outs in Australia’s anti-discrimination laws, with [Opposition Leader] Bill Shorten leaving open the door to removing further exemptions for religious institutions.

The official ALP electoral platform contains the following promise (in Chapter 9, on p 139):

196. Labor believes that no faith, no religion, no set of beliefs should ever be used as an instrument of division or exclusion, and condemning anyone, discriminating against anyone, vilifying anyone is a violation of the values we all share, a violation which can never be justified by anyone’s faith or belief. Accordingly, Labor will review national anti-discrimination laws to ensure that exemptions do not place Australians in a position where they cannot access essential social services.

In this post I want to briefly review what “exemptions” are being mentioned here, and argue that watering down or removing this provisions (these “balancing clauses”) would be unnecessary to achieve the ALP’s stated aims, and in general a bad idea.

Balancing Clauses in Discrimination Law

Since the current issue has arisen in a Federal election, I will mainly focus on Federal law (although the issues and their resolution are similar in most States and Territories.) In fact, the primary “exemptions” that the Greens and the ALP are referring to are those contained in one Act, the Sex Discrimination Act 1984 (Cth) (SDA). (Interestingly, there are few if any religious balancing clauses in the other Federal discrimination legislation, prohibiting discrimination on the basis of race, disability, and age. These have not been areas where mainstream religions have usually sought exemptions.)

Terminology

First, a question of terminology. What their opponents tend to call “exemptions” to discrimination law are, in my opinion, best described another way. To explain this I would like to quote some extracts from a paper I presented at a conference in Oxford in 2015:

 [R]eligious freedom is recognised in the International Covenant on Civil and Political Rights (art 18):

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his [or her] choice, and freedom, either individually or in community with others and in public or private, to manifest his [or her] religion or belief in worship, observance, practice and teaching.

While it is clear that the “internal dimension” of religious freedom is absolutely protected, it is equally clear that the “external dimension” of the freedom, that is, the freedom to manifest one’s religion and act on one’s religious beliefs, may be subject to limitations in certain circumstances. A fundamental feature of “rights” of any sort, of course, is that, where they are given to more than one person, there is the potential for conflict. Any “freedom” given to a person to do something, will usually involve a “duty” on another person’s part to allow them to do it, even if it interferes with some other freedom or right of that person. Whether it is appropriate for one person’s right to be protected over and above another person’s right or interest requires a consideration of how competing rights and interests are to be appropriately balanced. The need for limitations in certain circumstances on the right to externally manifest one’s religious belief and the need for freedom of religious freedom rights to be balanced with the rights and interests of others is reflected in the ICCPR (art 18(3)):

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The nature of any human rights system, then, is that it must allow the appropriate “balancing” of rights which may occasionally come into conflict. But there is under international law no “hierarchy” of the fundamental rights protected in the ICCPR, all are equal, including both the right to free exercise of religion, and the right not to be unlawfully discriminated against. So it is not helpful to speak of provisions designed to balance these rights as “exemptions” or “exceptions”. As I go on to say in the paper I mentioned above:

Rather than seeing these “defences” as concessions “wrung out” of a reluctant legislature by some powerful lobby group, as they are sometimes painted in the press, it seems to be a better analysis to see the limits drawn around discrimination laws as an integral part of a structure designed to reflect the relevant human rights as a whole.

Balancing provisions in the SDA

What, then, are the “balancing provisions” contained in the SDA? There is a good summary of these in the report of the Australian Law Reform Commission on “Traditional Rights and Freedoms”. In Chapter 5 the Commission sums up the relevant provisions in the SDA as follows:

5.80     Commonwealth anti-discrimination laws contain exemptions for religious organisations and religious educational institutions. These exemptions apply where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. For example, in the SDA, the exemptions include the following:

  • s 23(3)(b), which allows discrimination in the provision of accommodation by religious bodies;
  • s 37, which allows discrimination in the ordination or appointment of priests, ministers of religion or members of any religious order, the training or education of persons seeking ordination or appointment, the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes 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’; and
  • s 38, which allows discrimination by educational institutions established for religious purposes in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’.

These balancing clauses will operate to delimit the area of unlawful discrimination under the SDA, so that behaviour which falls within those provisions will not be unlawful.

The purpose of the various provisions is not spelled out in the legislation, but seems to be as follows:

  • The s 23(3)(b) provision for accommodation recognises the fact that certain religious bodies have a tradition of running single-sex colleges and residential institutions. They do so partly because they have a conviction, based on their religious beliefs, that sex between men and women outside the bond of marriage is wrong, and hence they provide single-sex accommodation to reduce the temptations to engage in wrongful sexual conduct.
    • (It is worth noting in passing that since amendments in 2013, s 23(3A) provides that the exemption of religious organisations in para 23(3)(b) “does not apply to accommodation provided by a religious body in connection with the provision, by the body, of Commonwealth-funded aged care”. Hence a religious aged care institution cannot choose to offer single sex residential accommodation, nor can they choose to decline to accept a couple who are living together but not married, or a same sex couple. It is fairly clear that these changes represented an attempt to undermine the general balancing clause provisions by focussing on a purported problem which, to be frank, does not seem to have actually been causing any issues. Still, this “exemption to balancing” provision is now there.)
  • The s 37 provision has mainly been seen as allowing the Roman Catholic Church, and those branches of other churches who read the Bible’s teaching on the point in this way, to decline to appoint women as priests or pastors over congregations. It would also have allowed a religious organisation to decline to appoint to a position of spiritual leadership an unmarried person in a “de facto” relationship (an action otherwise forbidden as “marital status” discrimination), again on the basis of the Bible’s prohibition of sex outside marriage. Since amendment of the SDA in 2013 to add “sexual orientation” and “gender identity” as protected grounds, it will allow a church to decline to appoint to such a position a person in a same sex sexual relationship (based on the Biblical teaching that homosexual activity is sinful), or someone who is of one biological identity but “identifies” as of another gender. (For a recent overview of why many Christians regard transgender identification as theologically problematic, see this piece by Russell Moore from the Ethics & Religious Liberty Commission of the US Southern Baptist Convention.)
    • (Note again that s 37(2) now qualifies this balancing clause in relation to “acts or practices” where the “act or practice is connected with the provision, by the body, of Commonwealth-funded aged care”. Since most of the examples given in the debate on this issue revolved around the provision of accommodation in aged care institutions, it is hard to know whether s 37(2) adds anything above s 23(3A).)
  • The s 38 provision specifically applies to religiously based private schools, and would allow such schools to decline to engage teachers or staff (either as employees or contractors) where doing so would cause injury to injury to “the religious susceptibilities of adherents of that religion or creed.” Putting aside the somewhat patronising reference to “susceptibilities”, which one may assume is intended to refer to religiously based conscientious objection, this would seem to allow a Roman Catholic school to decline to hire (or to fire) a teacher who was in a de facto relationship, a same sex relationship, or was actively pursuing a gender transition. Under s 38(3) the school would also be allowed to decline to accept an application for enrolment from a student in one of these situations. It would also, presumably, be entitled to insist that students conduct themselves in accordance with Roman Catholic moral standards in behaviour at the school.

Are these provisions justified?

Some will immediately say that the examples provided above show why these provisions should not be allowed to operate. Refusing to employ, or sacking, a teacher because of their private moral choices sounds discriminatory. So does allowing a church to decline to ordain women, or sexually active same sex attracted persons, or transgender persons.

But it seems to me that the provisions are justified on the basis of the strong religious freedom rights recognised in international law mentioned above. If we are concerned about “human rights”, we cannot pick and choose only the ones that make us feel comfortable. Indeed, it is the human rights that have become unpopular and applicable to minorities, which will require all the more careful protection.

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.

Indeed, the strong moral stance of religious schools is sometimes seen as a reason for those schools to be preferred as educational choices, even by those who don’t share their religious commitments. If we believe in true choice and diversity, then we should be supporting different communities reflecting their values in the way that they provide such things as education, or other social services.

Implications for the political platforms

From what I have said above, I clearly do not support the draconian demands of the Greens to remove all balancing clauses reflecting religious belief from sex discrimination legislation. Religious organisations ought to be able to choose who they appoint as leaders, and who will teach at schools they set up to pass on their religious world view to those who attend. As others have pointed out, the Greens should not be required to appoint someone who is a climate change sceptic as a research assistant or indeed a front desk receptionist. In this area they need to accept that religious beliefs can be just as strongly held, and passionately followed, as political beliefs.

The only area of plausibility that is lent to these claims is where the Government may have chosen to provide some essential social service to members of the public through a religious group, which may then decide to not make that available to a member of the public on the basis of a religious belief. But while this would present many problems, it has to be said that it seems to be a classic “straw man” argument. No homeless person has even been turned away from a religiously run shelter because they are homosexual. No transgender person caught in a natural disaster has ever been refused assistance by the Salvation Army on the basis of their “gender identity”. While religious organisations will naturally seek to employ staff that share the ethos of the group, they are not in the business of denying help to needy people.

For this reason, it seems that the ALP policy is already satisfied, and no change to the law is needed to meet their concerns about “essential social services” being provided.

Conclusion

Religious groups, motivated precisely by their deep commitment to transcendent values, regularly engage in service to the vulnerable members of the community. They establish schools to pass on their deeply held values and moral commitments to the next generation. They run hostels and accommodation designed to reflect the moral values of their members and supporters.

If our society makes it impossible for believers to undertake these activities, by demanding that they conform to the majority views on gender equality and the new sexual identity politics which requires “affirming” sexual choices that their religion says is wrong, then we run the risk of driving believers out of the public square altogether. In doing so we will be denying the fundamental human right of religious freedom, and also losing the value added to our community by believers who serve the needy.

Islam, women’s seating and discrimination

In a very interesting recent decision, Bevege v Hizb ut-Tahrir Australia [2016] NSWCATAD 44 (4 March 2016), the NSW Civil and Administrative Tribunal has found that an Islamic group unlawfully discriminated against a female member of the audience for a seminar they were running, by requiring her to sit in a “women only” area.

In my view the decision is somewhat disturbing, and has the potential, if followed in the future, to undermine the appropriate recognition of religious freedom in NSW. The implications may extend beyond Muslim groups to a range of religious groups. 

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Submission on Religious Freedom in Australia

Recently the Australian Law Reform Commission has had a consultation on Rights and Freedoms in Australia. Just the sort of thing I should have made a submission to, you might think. And so did I; except that, in the rush of getting ready for semester 1 teaching the Feb 27 deadline made a whooshing sound as it rushed by! So I was immensely pleased to discover that Freedom 4 Faith, an Australian group set up to further religious freedom, had put forward an excellent submission; in fact, far better than the one I might have prepared! I encourage you to read it. The submission clearly sets out the international obligations Australia has to protect religious freedom, the various limits on religious freedom, and how they should be approached. In particular it identifies very clearly the fact that there is a lingering tendency in those from the “mainstream” human rights area to cast religious freedom in a secondary role, even if they do so because they are unaware of their own presuppositions. See, for example, the paragraph in the ALRC discussion paper noted on page 4 of the F4F submission, where protection of religious freedom is simply labelled “discrimination” and a warning is issued about the needs of “vulnerable” people. The F4F paper clearly but politely points out some of these issues and proposes a model which would better balance out the right to religious freedom and the right to be free from discrimination. I hope that the ALRC will give it a great deal of weight in coming up with their final proposals later in the year.

Religious organisations and their employees- new US decision

Can a religious organisation hire and fire staff in accordance, not just with their commitment to its doctrinal beliefs, but also on the basis of whether they conform to moral teachings? This was the issue in the background of a recent US decision, and it is interesting to note how this might play out in Australia.

The Conlon decision

The United States (Federal) Court of Appeals, 6th Circuit, has just handed down its decision on appeal in Conlon v InterVarsity Christian Fellowship/USA (No 14-1549, 5 Feb 2015), holding that Ms Conlon, who was dismissed as a “spiritual director” by IVCF, cannot file a Federal (or State) sex discrimination claim against the organisation. IVCF is an organisation that operates on many University campuses in the US, supporting evangelical gospel ministry there. (Full disclosure in case it is relevant: I have been a long time supporter of the Australian Fellowship of Evangelical Students, AFES, a similar organisation in this country which is, like IVCF/USA, a part of a wider global network, the International Fellowship of Evangelical Students, IFES.) Ms Conlon worked from 2004-2011 as a “spiritual director” assisting IVCF staff workers in their spiritual growth. When she started discussing problems within her marriage, and in particular flagged her possible divorce in March 2011, IVCF supervisors put her on paid leave to support her while dealing with this issue. When by the end of 2011 that seemed not to be working, her employment was terminated in December 2011.

The employment conditions for IVCF staff, which were made clear by the organisation from the outset, required that staff annually reaffirm their commitment to the IVCF Purpose Statement and Doctrinal Basis. The court quotes early in their decision a phrase (which I assume comes from the Purpose Statement), to the effect that

IVCF “believes in the sanctity of marriage and desires that all married employees honor their marriage vows.”

Presumably the IVCF leaders, although the decision does not make this clear, took the view that Ms Conlon would, if she were divorced, not provide an appropriate model of Christian behaviour in this area. I want to be clear that I am not making any comment on the rights and wrongs of this decision. Despite my general support for IFES and its affiliates, I know nothing about the decision in this case and whether it was godly, wise or justified. In fact, it somewhat disturbs me that the court notes that Ms Conlon alleges that two similarly situated male employees were divorced while working for IVCF, but were not disciplined or terminated (see p 3 of the decision.) But of course there are divorces and divorces, and difficult decision have to be made in these circumstances.

The fact that life can be so messy, and that decisions about who should be employed in spiritual leadership are so dependent on a number of fuzzy criteria, may be partly what lies behind the doctrine of the “ministerial exception” in US law, which was successfully relied on here by IVCF. Formally the doctrine is driven by the First Amendment to the US Constitution, forbidding the Establishment of a state church (and excessive “entanglement” by the state in religious groups) and setting out rights of Free Exercise of religion. The doctrine has been applied by lower courts for a while, but received endorsement by the US Supreme Court for the first time a few years ago in its decision in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 132 S Ct 694 (2012). I discussed this decision in detail in an earlier paper, but in brief the main relevant part is that the USSC held (somewhat surprisingly for a religion clause decision, unanimously) that Federal employment discrimination laws could not apply to “claims concerning the employment relationship between a religious institution and its ministers” (at 705).

Applying Hosanna-Tabor, the 6th Circuit here held that IVCF clearly qualified as a “religious organisation” (not only its name, but its mission statement and activities were all directed to religious ends), and that the position that Ms Conlon held of “spiritual director” satisfied at least 2 of the 4 criteria set out by the SC for an employee being regarded as a “minister” : the title of her role, “spiritual” director, and the religious functions she carried out, being responsible for assisting the “spiritual growth” of other IVCF staff. (See the discussion at pp 7-8: the court did not explicitly find that the other 2 factors were not present, being formal theological training and use of the title in public contexts; they just held that there was not enough evidence to make a finding. But the other 2 factors were, in this case, sufficient.)

The result was that under the authority of Hosanna-Tabor the court could not entertain a claim for discrimination under federal law; and they also ruled that since the decision was based on the Constitutional rights granted under the First Amendment, and it had long been held that the First Amendment applied to the States as well as to the Federal Congress, nor could a claim under State law be made (see pp 10-11.)

Australian law?

How would this matter be resolved under Australian law? I will comment on the application of the Federal legislation, the Sex Discrimination Act 1984 (Cth) (‘SDA’)- I think a similar analysis would apply under most State laws.

Under the SDA there would be a possible prima facie claim that a decision to dismiss someone because of their divorce would be discrimination based on “marital or relationship status”, which is one of the alternative grounds of unlawful discrimination in employment- see s 6, and the definition of “marital or relationship status” which includes the state of being “divorced”. I am not sure, in fact, whether this is a claim that would be possible under US law- the court in Conlon refers simply to the differential treatment of divorced men as opposed to the claimant, who is a woman. Under the SDA that might also give rise to a straightforward gender-based discrimination claim under s 5(1), whereby by reason of

(a)  the sex of the aggrieved person…. the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

Under s 14(2)(c), in Division 1 of Part II, it is unlawful for an employer to discriminate on the basis of marital or relationship status, or sex, “by dismissing the employee.”

While there is no general Hosanna-Tabor principle under Australian law, there are “balancing provisions” in the SDA designed to protect the religious freedom of certain organisations. Under s 37(1) in Part II:

  (1)  Nothing in Division 1 or 2 affects:

                     (a)  the ordination or appointment of priests, ministers of religion or members of any religious order;

                     (b)  the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;

                     (c)  the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or

                     (d)  any other 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.

Should a local student religious group dismiss a staff-worker in similar circumstances to those in Conlon, then it would need to show that the circumstances fell within s 37. It would probably be difficult to establish that a student staff-worker was a “minister of religion” under paras (a) and (b). It is possible that para (c) could apply but that would depend whether a “religious observance or practice” was broad enough to cover not just “rituals” but also the general practice of evangelism and bible studies, for example. Para (d) would probably apply: a group of this sort would be a “body established for religious purposes”, and the “practice that conforms to the doctrines, tenets or beliefs of that religion” would be arguably the policy of requiring staff members to conform to Biblical standards of sexual behaviour, including practices in relation to divorce. Possibly the bar would be set a bit higher in Australian than in the US: whereas under Hosanna-Tabor the court would not even begin to inquire into the religious criteria used, in Australia the organisation might need to make a plausible case that their decision could be justified by a set of doctrines and beliefs that were at least a possible reading of their religious tradition.

There a number of uncertainties, then, as to how an Australian court would deal with these matters. Those uncertainties are unfortunately compounded by the differing views expressed in the Victorian Court of Appeal decision in Christian Youth Camps v Cobaw [2014] VSCA 75, discussed in a previous post. One reading of Cobaw might suggest that matters of sexual behaviour, even decisions about divorce, were not part of the “doctrines, tenets or beliefs” of a Christian organisation (a view I would disagree with.) Another issue is that whether any disciplinary action taken “conforms” to those beliefs, so that the court would be given the task of coming up with an authoritative interpretation of the Biblical material on divorce! (A matter that mainstream Christian churches, and groups within churches, have disagreed on for the last 2000 years…)

In my view, despite what was said in Cobaw, the best approach is for the courts to grant a wide “margin of appreciation” (to use a phrase drawn from European jurisprudence) to religious groups, so that so long as a decision seems to be made in a good faith and consistent interpretation of their own doctrines (not in a “sham” way to achieve a particular outcome), then courts should recognise their freedom to determine who is suitable to work in key positions in these organisations. But whether this is the way that courts go in Australia remains to be seen.