For example, the general rule against discrimination on the basis of age has multiple exceptions making it lawful e.g. to keep footballers over 18 out of the under-12s competition, to permit lower youth wages for people under 20 than adult wages. Despite the general rule against discrimination on the basis of political belief or activity, political parties can lawfully discriminate against an employee if the employee doesn’t stay in line with the political beliefs and activity of the party – it is hard to see how parties could maintain their policies otherwise.

Of the 45 exceptions in the Victorian law, two of them permit religious bodies and religious schools and colleges to lawfully discriminate in employment and other matters if their actions are in conformity with the doctrines, beliefs or principles of the religion. So a church or school or charity can make decisions about a member, employee or board member based on:

• whether the person’s religious beliefs and activities conform to the religion (that is lawful discrimination on the ground of religion)
• whether their conduct conforms to the conduct standards of the religion (accepting that no human is perfect and Christians should be showing grace, in practice the issue will be about continuing and repeated failures to comply with conduct standards).

The Victorian ALP Government has introduced the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, to be debated from 16 November. It will severely restrict these 2 religious exceptions and hence the freedom of religious bodies, schools and charities to make decisions in conformity with the doctrines, beliefs or principles of the religion. The Bill creates 4 major restrictions on the freedoms of religious bodies, schools and charities. This article discusses the first two and a second part will address the others.

Employment actions

1. Employment actions of religious bodies and religious educational institutions in relation to a person are only protected when based on the person’s religious belief or activity, but not their conduct.

The Bill will permit religious bodies, education and charities to take adverse employment action against an employee or contractor because the religious belief or religious activity of the person does not conform to the religion, but not because their other conduct does not conform to the religion.

The government completely ignores the fact that all religions have conduct standards which believers are asked to comply with e.g. to care for the poor and the sick, to seek justice for all, to honour and care for their spouse and children and their parents when they are old, to avoid greed and lust and gambling, to only have sexual intercourse in man-woman marriage and abstain from sexual activity outside marriage, to be honest in business dealings and not exploit people, to be generous and a good steward.

Under the Bill religious bodies and religious education authorities cannot take adverse employment action against an employee or contractor because the conduct of the person contravenes a moral conduct rule of the religion if the person’s conduct falls within another protected attribute under the Equal Opportunity Act (e.g. marital status (includes de facto relationships), lawful sexual activity, or profession, occupation or trade (which will be added as a protected attribute by the Sex Work Decriminalisation Bill 2021 which has passed the lower house).

In effect, the Bill elevates secular progressive views of relationships, sexual activity and occupations over different religious views and prevents religious bodies and religious education authorities from applying their different religious views in employment actions.

Take some examples. A religious body or religious school or college or charity employs or contracts a person to work as a pastor or teacher or employee and later discovers that the person:

(a) has a (legal) second occupation which is contrary to the moral conduct rules of the religion (e.g. payday lending to people who can’t afford it, sharp business practices like aggressive debt collection, production or sale of legal pornography, sex work, providing services for a brothel, or for some religions, producing or selling pork for human consumption).

(b) is living in an unmarried de facto relationship (whether opposite sex or same-sex) contrary to the moral conduct standards of the religion; or

(b) is engaging in any lawful sexual activity such as sexual relations outside marriage (whether opposite-sex or same-sex) including adultery or a serial one night stands contrary to the moral conduct standards of the religion.

If the person does not alter their conduct and the religious body or religious school or charity seeks to take adverse employment action against the person (e.g. demote them or reduce duties or hours or terminate them) because of (a), (b) or (c), that will be unlawful discrimination unless the body can show that it took the action because of the person’s religious belief or religious activity rather than their conduct. That will be very difficult to show in many cases because people may say they still hold the relevant belief, they just can’t live it out in their conduct in current circumstances.

There is a small safe harbour – the Bill’s restrictions will not apply to the ordination or appointment of priests, ministers of religion or members of a religious order; or the selection or appointment of people to perform functions in relation to any religious observance or practice. But the Bill will apply to any other employment action in relation to such positions apart from appointment and selection e.g. promotion, demotion, re-assignment, discipline or termination.

2. Religious bodies and religious educational institutions can only take adverse employment action on the basis of a person’s religious belief or activity if it is an inherent requirement of the position that the person conform to the doctrines, principles or beliefs of the religion and the person cannot meet the inherent requirement because of their religious belief or activity

Whether any position has such an inherent requirement is determined by a tribunal or court, not by the religious body. It is to be determined based on the evidence of actual practice, not just by what the employment documents or code of conduct say.

Readers may be aware that the government and the Victorian Human Rights Commission (which handles discrimination complaints) favours the view that the positions of a minister of religion or the principal and religious studies teachers at a religious school will have such an inherent requirement, but probably not administration, maintenance, IT or accounts staff or the mathematics or English teacher. The Minister said in Parliament:  “[I]f a teacher is never required to lead devotions, it is unlikely that the religious beliefs could be shown to be a genuine inherent requirement of their role. This highlights that inherent requirements must be assessed based on how the job is actually performed, rather than requirements which are simply asserted to be necessary.”

A preference for hiring a religious believer doesn’t create an inherent requirement

Some religious organisations have a policy of preferring to hire staff who share the beliefs and practices of the religion for a position where they can but accept that sometimes they cannot find such people in the labour market. The government has made clear that such a policy of preferencing will not make it an inherent requirement of the position that the occupant must conform to the doctrines, principles or beliefs of the religion. Quite the opposite – the fact that a non-believer (or a person of a different belief) might be or has been appointed to the position in the past suggests there is no inherent requirement.

Both of the above changes are a major interference by the State with the employment practices of religious bodies, schools and charities. They are discriminatory against religion, even hypocritical. The politicians and political parties are not imposing an inherent requirements test on their own ability to hire and fire staff based on how much they conform to the party’s political beliefs and activities. The burden is only for religious employers.

Balancing the competing interests

The argument in favour of these changes is that religious employers use the exceptions to deny work to people living by different sexual and relationship standards than the religion’s conduct rules (a point especially made by LGBTIQA lobbyists). True enough that some religious employers do, but certainly not all.

But that is a consequence of the human rights of freedom of association and of a parent or guardian to have their children educated in the moral and religious beliefs of the family (both of which Australia has committed to in the International Covenant on Civil and Political Rights). Organisations formed to promote and model a way of life and a vision of the good need to be able to hire and retain staff who will be ambassadors for the cause, and not be forced by law to hire and retain staff whose conduct undermines modelling the vision and way of life of the organisation. Otherwise, they will dilute and lose their organising purpose and ethos. That is why the Greens Party does not and should not have to hire or keep on staff people who march in pro-coal demonstrations. It is why LGBTIQA lobby organisations do not and should not have to hire or keep on staff those who argue on social media that all same-sex attracted people should live celibate.

Balancing the competing interests by weighing the respective harms to the rights involved leads to the conclusion that the current exceptions should not be restricted further. An individual applicant or employee whose conduct contradict the doctrines, beliefs or practices of the religion of the religious employer will in our secular society be able to find alternative employers where there is no such conflict. For example, a person whose application for a teaching position in a religious body or school is refused because the person’s conduct in sexual activity or relationship status or occupation contradicted the doctrines, beliefs or practices of the religion could move to any government school or a large number of independent schools and find that their conduct raised no concerns at all.

But if this Bill is adopted, the religious body or school cannot go elsewhere. Its ability to require that its ethos and values be modelled by its staff as expected by its other members, students and parents in these matters is denied by the State and, once compromised, cannot be recovered. For the same reasons if the Bill is adopted, the current option of parents to send their children to a religious body or school, all of the staff of which model and live out the values of the religion, is foreclosed by the State.

Mark Sneddon

Executive Director

Institute for Civil Society

www.i4cs.com.au

[email protected]