Thursday, 28 October 2021

 Ms HUTCHINS (Sydenham—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:11): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Equal Opportunity (Religious Exceptions) Amendment Bill 2021.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Equal Opportunity (Religious Exceptions) Amendment Bill 2021.

In my opinion, the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Equal Opportunity Act 2010 (EO Act) prohibits discrimination on the basis of specified personal attributes in certain areas of public life, such as employment, education and the provision of goods and services. The EO Act also sets out exceptions to discrimination protections, which recognise that discrimination may be justified in certain circumstances. These exceptions set out circumstance in which conduct that would otherwise fall within the definition of discrimination is lawful.

Sections 82(2), 83 and 84 of the EO Act currently provide for exceptions from anti-discrimination protections for the conduct of religious bodies, schools and individuals in all areas of public life covered by the act. These exceptions allow religious bodies, schools and individuals to discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

The Bill will:

• introduce a narrow ‘inherent requirements’ test into sections 82(2) and 83, to limit the ability of religious bodies and educational institutions to discriminate in the area of employment, and to allow reasonable and proportionate discrimination only on the basis of a person’s religious belief or activity;

• narrow the religious exceptions for religious bodies that provide government funded goods and services (section 82) and religious educational institutions (section 83), to allow reasonable and proportionate discrimination based on a person’s religious belief or activity; and

• remove section 84, which provides an exception from discrimination that religious individuals can rely on.

Human Rights Issues

The Bill engages several rights under the Charter.

The Bill promotes the right to recognition and equality before the law (section 8); the right to life (section 9); the right to privacy (section 13); and the right of children to protection in their best interests (section 17).

The Bill limits the right to recognition and equality before the law (section 8); the right to privacy (section 13); the right to freedom of thought, conscience, religion and belief (section 14); the right of children to protection in their best interests (section 17) and cultural rights (section 19(1)).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited in order to protect other rights. The Charter is a ‘living instrument’, and limitations that may once have been viewed as compatible with human rights may become incompatible over time as community attitudes and standards change.

The Bill involves a balancing of rights recognised by the Charter. By narrowing yet retaining key aspects of religious exceptions, the Bill strikes a fairer balance between rights protected by the Charter.

Right to recognition and equality before the law

Section 8 of the Charter provides that every person has the right to enjoy their human rights without discrimination. It also provides that every person is equal before the law, is entitled to the equal protection of the law without discrimination, and has the right to equal and effective protection against discrimination.

Justice Bell, in Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 [277] noted the equality rights in section 8 are ‘the keystone in the protective arch of the Charter’, and the fundamental value underlying the right to equality is the ‘equal dignity of every person’. To treat somebody differently because of a specified attribute can undermine personal autonomy and self-realisation.

The Bill promotes the right to equality by amending the religious exceptions in the EO Act to remove the ability for religious bodies and educational institutions to discriminate on the basis of a person’s sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity in employment, education and the provision of goods and services.

This will mean that religious organisations and educational institutions will be unable to fire or refuse to hire LGBTIQ+ people, single parents or women based on these attributes. It will also mean that educational institutions will be unable to discriminate against LGBTIQ+ students (and other students with protected attributes), including in admission, expulsion and suspension. Religious organisations will not be able to discriminate on these attributes in the provision of government-funded goods and services. This will ensure that LGBTIQ+ people can access government funded goods and services, including essential services provided by faith-based charities, without discrimination, promoting and protecting the right to equality.

Finally, the Bill removes the ability for religious individuals to discriminate on the basis of religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity. This exception is rarely relied upon, but the potential breadth of the exception fails to adequately balance the right to equality with the right to freedom of religion. Removing this provision ensures that the law recognises the right to equality of LGBTIQ+ people and other individuals who currently face discrimination.

However, the Bill also limits the right to equality by allowing religious organisations and educational institutions to continue to discriminate against individuals on the basis of a religious belief or activity (a protected attribute under the EO Act) in employment, education and the provision of government-funded goods and services.

The purpose of this limitation is to protect the ability of religious organisations and educational institutions to demonstrate their religion or belief as part of a faith community, and exclude individuals who do not share their faith. The formation of religious schools and organisations is an important part of an individual’s right to enjoy freedom of religion with other members of their community.

The Bill narrows the tests for discrimination on the basis of religious belief or activity, to ensure that this limitation does not extend further than is reasonably necessary to protect the right to freedom of religion.

In employment, the Bill provides that a religious organisation or educational institution can only lawfully discriminate on the basis of religious belief or activity if conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position, the person cannot meet that inherent requirement because of their religious belief or activity, and the discriminatory action is reasonable and proportionate. This replaces the current blanket exception with an exception that is tailored to the specific position and restricts the discrimination to only those positions where it is necessary.

The requirement for the proposed discriminatory action to be reasonable and proportionate also means the test balances the rights and interests of the individual and the religious organisation or educational institution. This flexibility ensures the test is the least restrictive means to achieve the purpose of protecting the right to freedom of religion.

Right to life

Section 9 of the Charter provides that every person has the right to life and has the right not to be arbitrarily deprived of life.

In PBU & NJE v Mental Health Tribunal (2018) 56 VR 141, 169 Justice Bell noted that this right encompasses a positive obligation to protect individuals from arbitrary death. Under international law this includes taking adequate measures to prevent suicide, especially among individuals who are particularly vulnerable.

Young LGBTIQ+ people experience more bullying and have a much higher risk of mental illness and suicidal behaviours than their peers. Discrimination and prejudice are key factors in increasing the risk of mental illness and undermining well-being. The Bill promotes the right to life of LGBTIQ+ students by removing the ability for religious schools to discriminate on the basis of sexual orientation or gender identity.

Right to privacy

Section 13(a) of the Charter provides that every person has the right not to have their privacy unlawfully or arbitrarily interfered with. The right to privacy protects individuals from unjustified interferences with their private lives and social identity, including their sexual identity. The value of this right focuses on the protection of a person’s private sphere from unjustified intrusion by public authorities.

In ZZ v Secretary, Department of Justice [2013] VSC 267 [87], Justice Bell noted that there is an ‘intrinsic connection between employment, dignity and the private life of individuals’. Restrictions on employment could limit the right to privacy if they impact sufficiently on the personal relationships of an individual and their ability to experience a private life.

The Bill promotes the right to privacy by removing the ability of religious organisations and schools to discriminate on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity in employment. Teachers and other employees at religious organisations and educational institutions should not need to hide their identity in order to avoid risking their livelihoods.

However, the Bill also limits the right to privacy by allowing religious organisations and educational institutions to continue to discriminate against individuals on the basis of a religious belief or activity (which could also form part of a person’s private life) in employment.

The purpose of this limitation is to protect the ability of religious organisations and educational institutions to demonstrate a religion or belief as part of a faith community, and exclude individuals who do not share their faith. The formation of religious schools and organisations is an important part of an individual’s right to enjoy freedom of religion with other members of their community.

The Bill narrows the test for discrimination on the basis of religious belief or activity, to ensure that this limitation does not extend further than is reasonably necessary to protect the right to freedom of religion. The test ensures that the interests of the individual and rights of the religious organisation or educational institution are both considered. This flexibility ensures that that test is the least restrictive means to achieve the purpose of protecting the right to privacy.

The right to freedom of thought, conscience, religion and belief

Section 14 of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief. This includes the right to adopt a religion or belief and to demonstrate religious belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private. The formation of religious schools and organisations is part of an individual’s right to enjoy freedom of religion with other members of their community.

While the right to have or adopt a religion or belief is a matter of individual thought, and considered to be absolute, the right to demonstrate religion or belief impacts others and is therefore subject to reasonable limitations.

As the Victorian Court of Appeal noted, in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256, the structure of the EO Act reflects the fact that the right to demonstrate a religious belief may be limited where it is necessary to protect the rights of others. The balancing of these rights does not involve privileging one right over the other, but a recognition that rights coexist.

The religious exceptions in the EO Act are intended to limit the right to equality in circumstances that are justified and reasonable. The purpose of these religious exceptions is to protect the right to freedom of religion and belief, and, in particular, the freedom to demonstrate a religion or belief in practice and teaching, as part of a community. This protection is important in a pluralistic society that values freedom of religion.

However, the current breadth and scope of the religious exceptions go further than is reasonably necessary to protect the right to freedom of religion and belief.

The Bill addresses this by narrowing and removing exceptions for religious bodies and educational institutions, limiting their ability to discriminate when making employment decisions, providing government-funded goods and services and in relation to students.

This limits the right to freedom of religion—in particular, the freedom of individuals to demonstrate a religion or belief in practice and teaching, as part of a community, by restricting their ability to maintain a social setting based on their religious beliefs. However, as outlined below, these limitations are reasonable and justified, as they are necessary to protect the rights of others.

Importantly, the Bill does not affect section 82(1) EO Act, which provides an exception in relation to appointment to a religious order, training for that purpose, and the selection of people to perform/participate in religious functions. Section 82(1) offers considerable protection for freedom of religion.

Narrowing religious exceptions in employment

The Bill removes exceptions allowing religious organisations and educational institutions to discriminate in employment on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity. This amendment is necessary to protect the rights to equality and privacy of staff and is consistent with contemporary community attitudes and standards, which support removal of discrimination against individuals on the basis of attributes such as sexual orientation and gender identity.

The Bill retains the ability for religious organisations and educational institutions to discriminate in employment on the basis of a person’s religious belief or activity, where it is an inherent requirement of a particular position and the proposed discriminatory action is reasonable and proportionate in the circumstances. This allows religious organisations and educational institutions to select staff based on their religious beliefs, where the particular role requires this, preserving their right to freedom of religion.

The Bill’s approach, which requires a religious organisation or educational institution to determine whether proposed discrimination is necessary to the particular role, reasonable and proportionate in each instance (as opposed to the current blanket exception), is a more appropriate balancing of competing rights. It places the focus of the test on the particular position and the need for the exception, rather than an application of a general policy which allows broad discrimination. It is the least restrictive means available which protects both the organisation’s right to freedom of religion with the rights of individuals to non-discrimination.

In the area of employment, it is fair and reasonable to ask religious bodies and schools to demonstrate the necessary connection between their religious beliefs and the need to discriminate against a person based on their religious beliefs or activities. Restricting a person’s ability to obtain or retain employment on the basis of personal attributes is a substantial limitation on that person’s right to non-discrimination and privacy.

This Bill’s test will require consideration of whether an employer’s decision, for example, to terminate a person’s employment is a reasonable and proportionate response, having regard to the particular facts and circumstances of the case, including the impact of the decision on the employee, the nature and extent of the person’s non-conformity with the religious beliefs, doctrines or principles and whether there are alternative and more appropriate options available to the employer.

The inherent requirements test better balances the rights to equality and privacy with the right to religious freedom, so that all can be appropriately recognised and enjoyed. While continuing to recognise the important role played by religious bodies and educational institutions in Victoria, the inherent requirements test will ensure that the large number of people employed by, or seeking to be employed by, these organisations are better protected from discrimination.

Narrowing the religious exception for government-funded goods and services

The Bill also narrows the operation of the religious exception available for religious bodies in the provision of government-funded goods and services, so that discrimination is only allowed on the basis of a person’s religious belief or activity (and not their sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity); and where it is reasonable and proportionate based on the circumstances of the case.

The exception is only proposed to be narrowed in relation to government funded goods and services, not services generally.

In Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256, 365 the Victorian Court of Appeal noted that, under international law, restrictions on commercial activities, such as the provision of goods and services, are less likely to unjustifiably interfere with the right to demonstrate a religious belief than other activities which form part of the core element of the right, such as religious worship.

This amendment removes the ability of religious bodies to discriminate in the provision of government-funded goods and services on the basis of other attributes, including sexual orientation or gender identity. This will mean, for example, that a religious body that receives government funding to provide counselling services could not refuse to provide counselling services to people based on their sex, sexual orientation, and other protected attributes (only on the basis of the would-be recipient’s religious belief or activity).

This amendment will ensure that Victorians can access government funded goods and services, including essential services provided by faith-based charities, without discrimination, promoting and protecting the right to equality. As the Victorian government cannot rely on any exceptions in its provision of goods and services it is reasonable that organisations that provide goods and services on the government’s behalf be held to similar standards.

Religious organisations will continue to be able to discriminate in the provision of government-funded goods and services on the basis of belief, so the amendments will not require organisations to provide services to people of other religious if it conforms with the religious doctrines, beliefs or principles or is reasonable necessary to avoid injury to religious sensitivities and it is reasonable and proportionate in the circumstances.

The Bill’s approach, which requires a religious organisation to determine whether the proposed discrimination is reasonable and proportionate in each instance, is a more appropriate balancing of the competing rights of members of the religious organisation to provide its services based on religious beliefs, and the right to individuals not to experience discrimination on the basis of their religious belief. It is the least restrictive means available which protects both the organisation’s right to freedom of religion with the rights of individuals to non-discrimination.

Narrowing the religious exception for educational institutions

The Bill also narrows the operation of the religious exception available for religious educational institutions, so that discrimination is only allowed on the basis of a person’s religious belief or activity (and not their sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity); and where it is reasonable and proportionate based on the circumstances of the case.

This removes the ability of religious schools to discriminate against LGBTIQ+ students in the administration of the school, including admission, suspension and expulsion of students. This promotes the rights of students to non-discrimination and protection in their best interests.

Importantly, the Bill will not prevent single sex religious schools from continuing to exclude students who are not of a particular sex, as the amendments do not affect the operation of section 39 of the EO Act. The Bill will also not prevent single sex religious schools from relying on section 26 of the EO Act, which allows employers to only employ people of one sex if it is a genuine occupational requirement.

Religious educational institutions will continue to be able to discriminate in the course of establishing, directing, controlling or administering the institution on the basis of religious belief, if it conforms with the religious doctrines, beliefs or principles or is reasonably necessary to avoid injury to religious sensitivities and it is reasonable and proportionate in the circumstances. This preserves the ability of religious educational institutions to select students on the basis of the school’s religion, while also incorporating consideration of the impacts of a particular decision on the student involved. It is the least restrictive means available which protects both the organisation’s right to freedom of religion with the rights of students to non-discrimination.

Removal of the religious exception for individuals

Finally, the Bill removes section 84, which allows individuals to discriminate against another person on the basis of that person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, if the discrimination is reasonably necessary for the individual to comply with the doctrines, beliefs or principles of their religion.

The removal of this exception is justified in order to protect the right to equality. Victoria is the only state in Australia to have such a provision. This provision has limited practical effect due to the operation of section 109 of the EO Act, which allows for vicarious liability. Therefore, complaints are most likely to be brought against organisations (to which other exceptions are available) rather than individuals.

The removal of this exception may limit the rights of some individuals who provide goods or services outside of an organisation. For example, doctors may be prevented from relying on this exception to refuse to provide medical treatment on religious grounds based on a person’s personal attributes. However, Australian law allows for conscientious objections through specific, legislated provisions in special circumstances, such as for medical professionals in relation to abortion and voluntary assisted dying, as well as laws relating to religious marriage celebrants who do not wish to perform same-sex marriages. These laws are carefully tailored to the specific circumstances and generally include protections for those impacted, such as requirements to refer a patient to another medical practitioner. It is more reasonable and proportionate to allow for particular religious exceptions for individuals in specific circumstances, rather than a broad exception such as section 84, which does not consider the rights of, or provide protections for, those subject to discrimination.

Section 84 is very rarely relied upon as most forms of discrimination occur in relation to people who work for religious bodies or schools, who will be able to continue relying on the amended sections 82 and 83. Nonetheless, it is important to remove this section, which provides a broad exception to discrimination on a number of attributes to ensure that the law is in line with community standards.

Protecting the best interests of children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests.

This right recognises the special vulnerability of children and requires that the views of the child be taken into account when determining what is in their best interests.

Determining what is in the best interests of the child depends on the individual circumstances of the child and includes protection of their rights, including the rights of LGBTIQ+ children and girls to be protected from discrimination, and promotion of children’s safety and wellbeing, including their mental health.

The current exceptions allow religious educational institutions, including schools, to discriminate against students who are LGBTIQ+, female, or unmarried parents. This overrides other protections in the EO Act preventing schools from discriminating in the admission of students, expulsion and other denial of benefits.

Young LGBTIQ+ people experience more bullying and have a greater risk of mental illness and suicide than their peers. Discrimination increases the risk of mental illness and undermines well-being. The Bill would remove the ability for religious schools to discriminate on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity and would therefore promote the rights of students to protection in their best interests.

Cultural rights

Section 19(1) of the Charter provides that all persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with others of that background, to enjoy their culture and declare and practice their religion.

While this is an individual right, it recognises the importance of individuals being able to enjoy their culture and religion in community with others who share their cultural background. This right protects and promotes Victoria’s cultural, religious, racial and linguistic diversity, which enriches the fabric of society as a whole.

There is significant overlap between this right and the right to freedom of religion. Like the right to freedom of religion, it is unlikely that limitations on the right to declare a religion would be permitted, however, the right to practice a religion impacts others and is therefore subject to reasonable limitations.

The Bill limits cultural rights by limiting the way in which people with a particular cultural, religious, racial or linguistic background can practice their religion as a community through maintaining social settings based on their religious beliefs. These limitations will affect cultural and religious groups that wish to run religious organisations or educational institutions in line with their religious beliefs. The Bill limits the rights of religious bodies to discriminate in employment, the management of religious educational institutions and the provision of government-funded goods and services. In particular, the Bill amends the EO Act to only allow discrimination in these areas on the basis of a person’s religious belief or activity (and not their sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity).

As there is significant overlap between cultural rights and the right to freedom of religion, the limitations discussed in relation to the right to freedom of religion right also apply to this right. The limitations on cultural rights are reasonable and justified, as they are necessary for the important purpose of protecting the rights of individuals who may be subject to discrimination, including their rights to equality and non-discrimination, life, privacy, and the right of children to protection in their best interests.

Religious bodies and educational institutions will continue to be able to discriminate on the basis of religious belief or activity where it is an inherent requirement of a role (for employment matters), and where it is reasonable and proportionate in the circumstances. These exceptions continue alongside other exceptions and exemptions in the EO Act that may apply. For example, single sex religious schools can continue to exclude students who are not of a particular sex under section 39 of the EO Act, employers can continue to only offer employment to people of one sex if it is a genuine occupational requirement under section 26 of the EO Act and organisations can apply to the Victorian Civil and Administrative Tribunal for an exemption under section 89 of the EO Act.

These exceptions ensure that individuals can continue to practice their religion in community with other members of their cultural or religious groups and exclude individuals who do not share their faith. The limitations placed on cultural rights by this Bill therefore do not extend further than is reasonably necessary to protect the rights of others.

As discussed in this Statement of Compatibility, all of the limitations in the Bill are reasonable and justified.

Hon. Natalie Hutchins, MP

Minister for Crime Prevention

Minister for Corrections

Minister for Youth Justice

Minister for Victim Support

 Ms HUTCHINS (Sydenham—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:12): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

I am proud to introduce the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, which delivers on the Government’s election commitment to limit religious exceptions under the Equal Opportunity Act 2010 and better protect Victorians from discrimination.

The Andrews Labor Government is committed to equality for all Victorians. This Bill will better protect LGBTIQ+ and other Victorians against discrimination, particularly in schools and in the workplace. It makes clear that discrimination against LGBTIQ+ Victorians based on who they are, or who they love, is not acceptable.

Currently, our equal opportunity laws give religious organisations broad scope to discriminate when hiring and firing, and when deciding who they will provide services to. It is clear that these exceptions for religious organisations are far too broad and fail to prevent inappropriate discrimination on the basis of a person’s sexuality, gender identity or many other protected characteristics.

The changes that this Bill makes around employment in schools will not only protect staff, but also send a strong message to students and the broader school community that everyone deserves to be treated equally. It’s important for students, including students who may be struggling with their identity, to see that their teachers—all of them—are treated with dignity and respect.

I want to be clear that the Andrews Labor government is committed to preserving the fundamental rights of religious bodies and schools to practice and teach their faith, and to shape their religious ethos. Importantly, these reforms recognise the needs of religious schools to teach the tenets of their religion, set the religious ethos of their school, and support students in their faith. The Bill will limit the ability of a religious school or body to discriminate on the basis of certain protected attributes, when employing staff, running schools and providing services. The Bill will require that decisions made on the basis of a religious belief, and which may amount to discrimination, be justified, reasonable and proportionate.

This legislation follows legislation that we introduced in 2016, to reinstate protections for LGBTIQ+ Victorians that were removed by the former Coalition government. We re-iterated our commitment to remove this discriminatory barrier for LGBTIQ+ Victorians as part of the 2018 election. This Bill delivers on that pledge, and I’m glad to say that this Bill will set a new standard for anti-discrimination protections in Australia.

The Government has consulted with faith groups, LGBTIQ+ groups, education peak bodies and other members of our community on this Bill. It is not surprising that we heard a range of views on how our anti-discrimination laws should apply to religious organisations. Many felt the reforms in this Bill do not go far enough. Some faith groups said that forms of discrimination which are permissible under current exceptions are contrary to their religious teachings and principles. For these faith leaders, as with many ordinary people of faith, the law should not give credence to any suggestion that their religion endorses discrimination. For them, religious bodies should operate by the same rules as everyone else. However, I recognise that faith communities have different views on what is required by religious principles. This Bill will give religious bodies the ability to operate in accordance with their interpretation of their religion, yet within limits that are reasonable and proportionate.

I will turn now to the specific reforms in the Bill.

Discrimination in employment by religious bodies and schools

The Bill will remove the ability for religious bodies and schools to discriminate against an employee, or potential employee, because of their sex, sexual orientation, lawful sexual activity, marital status, parental status, or gender identity. The ability to discriminate on these grounds has left teachers and other employees at religious schools in fear of being “outed” to their employers, putting at risk their livelihoods and careers. No one who is diligently performing their job should face the stress and anxiety of being discriminated against for reasons that have nothing to do with their work duties.

Religious bodies and schools that wish to discriminate in employment will still be able to do so in appropriate circumstances based on a person’s religious beliefs or activities. The Bill creates a new test for employment by religious bodies and schools, which only allows discrimination if the following three elements are all satisfied:

1. Conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the job;

2. A person cannot meet that inherent requirement because of their religious belief or activity; and

3. The discriminatory action proposed to be taken against the person is reasonable and proportionate based on the circumstances of the case.

I will discuss each of these three elements separately.

Inherent requirements

The first element requires that conformity with the doctrines, beliefs or principles of the religion be an inherent requirement of the job. The inherent requirement test (sometimes called the “genuine occupational requirement” test) is a well-understood concept used in almost all discrimination legislation across Australia, as well as internationally. All employers in Victoria, including religious bodies and schools, already need to apply an inherent requirements test for employment in relation to disability discrimination.

The inherent requirements test provides a flexible approach for religious bodies and schools, recognising the diversity among these organisations in Victoria. Whether conformity with the doctrines of a particular religion is an inherent requirement of a role will depend on the context of the school, how it practices its religion and the nature of the specific role.

In most religious schools it would be an inherent requirement of a religious education position that employees must closely conform to the doctrines, beliefs or principles of the school’s religion. On the other hand, a support position, such as a gardener or maintenance worker, is unlikely to have religious conformity as an inherent requirement of their role.

Religious schools may set the inherent requirements of various roles in accordance with their ethos and approach. For instance, some schools may require a wide range of teaching staff to have religious pastoral roles, in which strict doctrinal conformity is required. Others may designate specific positions as largely responsible for conveying religious beliefs, such as chaplains. Many will require executive staff to conform to the religion more closely than other staff. Religious bodies and schools can meet the inherent requirements test by considering the importance and extent of religious conformity required by each role in the context of their overall operations.

The inherent requirements test must be assessed based on the role in practice, rather than how it is described on paper. For example, a religious school may state in a job description that conformity with certain religious doctrines is an inherent requirement of a role, for teachers who lead religious devotions. However, if 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.

Another important factor in determining whether conformity with religion is an inherent requirement of a role is to consider how the requirement is applied to other employees with similar roles at the religious body or school. For example, a religious school may state that it is an inherent requirement of all teaching positions that conformity with the religion of the school is required because all teachers carry pastoral care duties. However, it may be that for various reasons, the school hires several teachers who are unable to meet this inherent requirement. This would suggest that religious conformity may not be an actual inherent requirement of the teaching roles. While the school may prefer that its teachers conform with the religion, the test is not about preference, but a genuine inherent requirement in practice.

Religious belief is inconsistent with the role

The second element of the test requires that a person cannot meet the inherent requirement because of their religious belief or activity. This is only relevant where it has first been established that conformity with religion is a genuine inherent requirement of a role.

There is a difference between a person possessing a protected attribute, as distinct from a person holding a religious belief about a protected attribute. It is useful to provide several examples of what does not constitute a religious belief under the Equal Opportunity Act 2010. A person being gay is not a religious belief. A person becoming pregnant is not a religious belief. A person getting divorced is not a religious belief. A person being transgender is not a religious belief. Under the Bill, a religious body or school would not be able to discriminate against an employee only on the basis that a person’s sexual orientation or other protected attribute is inconsistent with the doctrines of the religion of the religious body.

Many religions have specific beliefs about aspects of sex, sexuality, and gender. For example, some religions believe marriage should only be between people of the opposite sex. If a particular religious belief about a protected attribute is an inherent requirement of the role, and a person has an inconsistent religious belief, it may be lawful for the religious organisation to discriminate against that person. However, in order to be lawful any discrimination would need to be applied in a consistent manner across all employees.

Reasonable and proportionate

The final element of the test requires that the discriminatory action proposed to be taken is reasonable and proportionate based on the circumstances of the case. This element is designed to provide stronger protection against discrimination on the basis of a person’s religious belief than an inherent requirements test alone. A religious body or school must consider whether the proposed discriminatory action—such as refusal to hire, denying access to development opportunities or promotions, or dismissal—is reasonable and proportionate given what is needed in the specific role. In making this assessment, religious bodies or schools will need to think about, among other things, the nature of the role, the nature and extent of the inconsistency of the employee’s belief, the consequences for both the employee and the employer should the discriminatory action happen or not happen, and whether there are any other responses available to the employer. Importantly, this aspect of the test requires employers to consider whether dismissal, for example, is a reasonable and proportionate course of action to uphold a religious ethos.

For example, conformity with religion could be an inherent requirement in a school teaching role where teachers generally lead students in prayer. A teacher may change their religious beliefs so it is no longer appropriate for them to lead prayers. In determining whether dismissal is a reasonable and proportionate action, the school could consider, as part of their assessment, whether another teacher could take on this aspect of the role.

Similarly, there may be a situation where conformity with religion is an inherent requirement in a teaching role at a religious school. The school’s religion holds that marriage is solely between a man and a woman. During employment at the school, a teacher changes their religious beliefs and becomes accepting of marriage equality. They now hold an inconsistent religious belief. The teacher continues to promote the religious views of the school on marriage to students but also tells students that there are those in the broader community that hold different views. Depending on the circumstances, it may not be reasonable and proportionate to dismiss a teacher who is willing to convey the religious views of the school, even if they differ from their own.

Discrimination in running religious schools

This Bill will also prevent religious schools from discriminating in establishing, directing, controlling, or administering their institution on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status, or gender identity. They will be able to discriminate on the basis of a person’s religious belief or activities, where it is reasonable and proportionate to do so in all the circumstances.

This important change will protect students from discrimination that has the potential to do great harm to them—by devaluing their identity, undermining their sense of self-worth and potentially, contributing to mental health issues. This is consistent with the general legal duty of care to students, which requires schools to take reasonable steps to minimise the risk of reasonably foreseeable harm, including preventing psychological harm such as injuries from bullying by other students.

These changes will mean, for example, that a religious school that holds specific beliefs about sex before marriage cannot expel a student who becomes pregnant only on the basis that the student is pregnant. Similarly, a religious school that holds specific beliefs about gender identity could not refuse to allow a transgender student to be on the student council only on the basis that student is transgender. The school could only discriminate against these students if they held religious beliefs inconsistent with those of the school—and only take such discriminatory action as was reasonable and proportionate in all the circumstances. The school would need to consider the student’s vulnerability as a child and the impact of the decision to discriminate on the student to determine what was reasonable and proportionate. And again, the school would need to ensure that the same action was taken against all students holding inconsistent religious beliefs, not only a student who is pregnant or transgender.

These changes will not affect a parent’s ability to send their child to a school of their religion, or for single-sex schools to exclude people of the opposite sex. Section 39 of the Equal Opportunity Act 2010 will still allow schools which are wholly or mainly for students of a particular sex, race, religious belief, age or disability to exclude students who are not of that particular group.

Codes of conduct for staff in religious bodies and schools

The proposed amendments will not affect the ability of religious schools to set conduct polices requiring teachers to uphold the religious ethos of the school—and not undermine the school’s religious teachings—provided the policies are not applied in way that amounts to unlawful discrimination. This issue was discussed at length during the consultation process and it is confirmed that religious bodies and schools are able to set staff conduct policies which align with the their religious beliefs as part of the general employment relationship.

However, such policies must continue to comply with all existing legislation, such as workplace safety, industrial relations and anti-discrimination. The proposed legislation will change the scope of anti-discrimination law in Victoria, which each employer will need to take into account alongside their other legal obligations when setting staff conduct policies.

Discrimination in providing government funded goods and services

The Bill will narrow the religious exceptions available to religious bodies who provide government funded goods and services. A religious body will only be able to discriminate in the provision of government funded goods and services on the basis of a person’s religious belief or activity, where it is reasonable and proportionate to discriminate in all the circumstances.

If the Victorian government were to provide the good or service directly, rather than through a religious body, the government would not be able to discriminate on any basis. The same limitations should apply where a religious body is providing the good or service on behalf of the government. For example, if a transgender teenager contacted a religious youth organisation that receives government funding to provide support to kids dealing with bullying, the organisation could not refuse to help the teenager just because they are transgender.

The government acknowledges that it is not aware of discrimination by religious providers in the provision of government funded goods and services. And, religious service providers generally do not discriminate in how they provide privately funded secular services, such as welfare and housing services. As such, the changes are not expected to have significant impacts for religious service providers. However, the changes have great symbolic importance and ensure government funding cannot be used in a discriminatory manner in the future.

Discrimination by individuals on the basis of religion

Finally, the Bill will also remove a general exception contained in section 84 available to individuals (rather than religious bodies or schools) to discriminate on the basis of religion. This provision is not found in anti-discrimination legislation in other Australian jurisdictions. In most cases, the areas of public life regulated by the Equal Opportunity Act 2010 are participated in by organisations, rather than individuals. Australian law allows for conscientious objections through specific, legislated provisions in special circumstances, for example, allowing conscientious objections by medical practitioners in relation to abortion and voluntary assisted dying, or by religious marriage celebrants in relation to same-sex marriages. The removal of this general exception is important to ensure that actions justified on the grounds of religious belief do not undermine equality before the law generally, and equality for the LGBTIQ+ community in particular.

General exemptions for religious bodies are not amended by the Bill

This Bill does not change the general exemptions that exist for religious bodies in relation to the ordination or appointment of priests, ministers, rabbis, imams or other members of a religious order, the training or education of people seeking to be ordained to those positions, or selection, or appointment of individuals to participate in religious practice or observance in s 82(1) of the Equal Opportunity Act 2010.

However, the intention of the amendments is that the employment of a person by religious schools or organisations will be governed by the employment provisions being introduced by this Bill. While employees may be engaged in some aspects of religious observance or practice as part of their employment, any discrimination in relation to that person’s employment will only be permitted on the basis of religious belief or activity, in accordance with the new test.

The bill also does not change the general exception in section 26 of the Equal Opportunity Act 2010, which allows employers to limit employment to people of a particular sex where this is a genuine occupational requirement. This provision would allow single-sex religious schools to continue selecting teachers of the same sex as the students if that practice accords with the school’s religious doctrines, beliefs and principles.

Commencement

The Bill has two separate commencement dates:

1. For all aspects other than government funded goods and services the bill will commence six months after Royal Assent.

2. For the amendments relating to government funded goods and services, the bill will commence one year after royal assent, unless proclaimed earlier.

The commencement for the aspects other than government funded goods and services is set at six months as the potential for the proposed changes have been publicly known since the government made its commitments in 2014 and again in 2018. Also, consultations with religious schools did not indicate any significant implementation issues, with many suggesting their employment practices already align with the proposed amendments.

The government funded goods and services reforms will commence one year after Royal Assent.

Equality is not negotiable in Victoria—no matter your religion, sexual orientation, marital status, gender identity or for any other attribute. This Bill does not privilege the right to equality over the right to freedom of religion. Instead, it balances the rights more fairly, so that both can be appropriately recognised and enjoyed.

I commend the Bill to the house.

 Mr ROWSWELL (Sandringham) (10:12): I move:

That the debate now be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 11 November.