In November 2014, the Victorian Christian Legal Society published an article on the Victorian Labor party’s pre-election proposal to introduce changes to the Equal Opportunity Act 2010 (Vic) potentially affecting religious freedoms. This article is reproduced here for the benefit of online readers.

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The Victorian Labor party has announced that it will introduce a ‘bona fide occupational requirement’ limitation on the religious exemptions’[1] in the Equal Opportunity Act 2010 (Vic), if it comes into power at the upcoming election on 29 November 2014.

We understand that this would mean a reinstatement of the ‘inherent requirement test’ introduced by the Brumby Labor government in the original version of the Equal Opportunity Act 2010 (Vic) (“2010 Act”). There is a genuine concern about the proposed amendments in Christian circles, refer:

and several other e-mail campaigns have been mailed out by different groups.

Inherent requirement test

The inherent requirement test for religious schools introduced under the 2010 Act reads as follows:

Section 83(1) Religious Schools

This section applies to a person or body, including a religious body, that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles.

Section 83(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 he or she does not meet that inherent requirement.

Section 83(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 of the purposes of subsection (3).

A similar inherent requirement restriction in relation to employment by a religious body was set out in sections 82(3) and 82(4) of the 2010 Act.

From a plain reading of the above provisions, it appears that a Christian school could not, for example, lawfully refuse to employ a person on the basis that he or she is an atheist or non-Christian or in an adulterous or de facto relationship, unless that person was applying to be a chaplain or religious education teacher.

In fact, the provisions cast doubt on whether a Christian school can require its principal to be a Christian. Is being a Christian an inherent requirement of that position? On what basis will this be decided by a court or tribunal?

In the past that the concept of an inherent requirement has been narrowly interpreted by the courts.[2] Furthermore, given the Cobaw cases[3], it appears likely that these the religious exemptions will continue to be interpreted narrowly so as to limit the ability of Christian organisations to rely on them.

Fortunately, the inherent requirement test provisions in the 2010 Act were repealed by the Baillieu Coalition government in 2011 under the Equal Opportunity Amendment Act 2011 (Vic) (2011 Amendment Act). In his second reading speech introducing the 2011 Amendment Act, Attorney-General Robert Clark said:

The 2010 Act proposes to give sweeping powers to the Victorian Equal Opportunity and Human Rights Commission (the commission) and in doing so will, if left unamended, expose businesses and community organisations to the threat of unwarranted and unchecked exercise of coercive powers. [emphasis added]

The test is unnecessarily restrictive and its reintroduction would make it difficult for any Christian organisation or school to continue to require all of its employees to be practicing Christians.

Freedom of Religion

Freedom of religion is a basic and fundamental human right recognised at an international level[4] and at the State level[5]. However, it is no longer viewed as an equal and competing right, but rather a secondary right carved out in an exemption.

This was aptly put by Cardinal George Pell in a press release after his meeting with then Prime Minister Julia Gillard:

We are very keen to ensure that the right to practise religion in public life continues to be protected in law. It is not ideal that religious freedom is protected by so called ‘exemptions and exceptions’ in anti-discrimination law, almost like reluctant concessions, crumbs from the secularists’ table.”[6] [emphasis added]

This reluctant concession approach can clearly be seen in the Law Institute of Victoria’s (LIV) recent Call to Parties 2014 State Election submission[7],which states that:

If religious exemptions are to exist, the LIV submits that the religious exemptions should apply so that religious bodies and schools may only discriminate in the provision of goods and services and in engaging employees and contract workers where such supply or engagement has a role in worship, observance, practice or teaching, and insofar as such discrimination is reasonably necessary to avoid conflict with the tenets of that religion. Additionally, the LIV considers that openness and transparency should be a pre-condition to the granting of an exemption. This may require, for instance, that a religious organisation or body having to publicly state on its website or otherwise that it intends to discriminate on the basis of a specified attribute in relation to specific religious teachings.

It has been noted by our President, Derrick Toh, that the LIV’s submissions on these issues are inappropriate and not representative of the diversity of views within the profession and the membership of the LIV.[8]

Religious schools and organisations should not just live off “crumbs from the secularists’ table”. They should thrive in a free society where the right of Christians and other believers to demonstrate their religion in worship, observance, practice and teaching, as part of a community, in public[9] is respected.

However, freedom of religion is threatened by Labor’s proposal to reintroduce the power of the Equal Opportunity and Humans Rights Commission (“EOHRC”) to deal with systemic discrimination on its own motion.[10]

The Attorney-General Robert Clark, has described this other Labor proposal as giving the EOHRC “more power than the Victoria Police to seize documents and interrogate the staff and volunteers of virtually any business, school or community organisation in the state and slap it with a compliance notice without even having to prove any discrimination has occurred.”[11]

Victoria is a thriving multi-cultural and multi-faith society. The proposed reintroduction of the inherent requirement test and increase in the powers of the EOHRC, if implemented in the form of the provisions in 2010 Act, would be a blow to diversity and multiculturalism in Victoria.

Those proposed changes will deny the religious organisations and schools of the majority of Victorians who identify with a religious faith, the freedom to require that their employees share and abide by their beliefs.

The Christian Legal Society of Victoria encourages its members to prayerfully and actively participate in these issues; engage in robust discussion, individually express your own views and consider these policies when deciding how you will vote at the upcoming election.

References

[1] http://www.viclabor.com.au/wp-content/uploads/2014/05/Victorian-Labor-Platform-2014.pdf p. 69.

[2] Qantas Airways Limited v Christie (1998) 193 CLR 280; X v Commonwealth (1999) 200 CLR 177.

[3] Cobaw Community Health Services v Christian Youth Camps Ltd & Anor (Anti-Discrimination) [2010] VCAT 1613; Christian Youth Camps Limited & Ors v Cobaw Community Health Service Limited & Ors
[2014] VSCA 75.

[4] Article 18 of the Universal Declaration of Human Rights (1948); Article 18 of the International Covenant on Civil and Political Rights (1966).

[5] Charter of Human Rights and Responsibilities Act 2006 (Vic).

[6] http://www.theaustralian.com.au/national-affairs/julia-gillard-reaches-out-to-christian-leaders/story-fn59niix-1226033650529

[7] http://www.liv.asn.au/getattachment/900680f2-0279-42b8-8e25-773bac26ca98/Call-to-Parties-State-Election-2014-key-issues-doc.aspx

[8] http://resources.news.com.au/files/242/850/Letter%20to%20Geoff%20Bowyer_30%2004%2014%20-%20redacted.pdf

[9] Section 14(1)(b) Charter of Human Rights and Responsibilities Act 2006 (Vic) http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt8.nsf/DDE300B846EED9C7CA257616000A3571/87318807B8E7A33ACA257D0700052646/$FILE/06-43aa013%20authorised.pdf

[10] http://www.viclabor.com.au/wp-content/uploads/2014/05/Victorian-Labor-Platform-2014.pdf p. 69.

[11] http://www.csa.edu.au/documents/item/279