Monday, March 14, 2011

Anti-discrimination Law and the Inherent Requirements Test

This piece was published in the March 2011 edition of TMA (The Melbourne Anglican).

It is welcome news that the Ballieu government will review the controversial and ambiguous 'inherent requirements' test introduced in 2010 revisions to the Victorian Equal Opportunity Act. 

A litany of incensed but ill-informed commentary gushed forth in response to this announcement.

Anti-discrimination legislation defines attributes which it is unlawful to rely upon when providing services or offering employment.  For example, it is unlawful in Victoria to employ people on the basis of their race, gender or age.

All anti-discrimination laws allow exemptions. These allow an Aboriginal youth housing service to target its services both to Aboriginals and to younger people: it would otherwise be illegal to discriminate on the basis of race and age.  Without an exemption, a synagogue could not require its rabbi to be a Jew.

Everyone accepts the need for exemptions, but there is disagreement about how to provide them.  Part of the heat in the debate is that some see these laws as a mechanism to push people of faith, especially laypeople, back into their churches.

In July 2009 the Human Rights Law Resource Centre argued that all exemptions should be removed from the EO Act, including the rights of groups to employ religious leaders on the basis of their beliefs. They proposed instead that employers be made to apply on a case by case basis to VCAT for exemptions.

The rhetoric which claims that the Victorian government intends to give religious employers  an "an automatic, pre-determined trump", is drastically overblown. This fantastical claim was put out by Rachel Ball, of the very same Human Rights Law Resource Centre which demanded zero exemptions.

Even before the 2010 amendments, religions did not have an automatic trump, as a recent VCAT case showed, when Judge Felicity Hampel found against Philip Island Adventure Resort for rejecting a booking from a gay suicide prevention group.

The issue at hand is quite specific.  It is the recently introduced 'inherent requirements' test.  This test means that to gain the benefit on an exemption, a religious employer must be able to prove that conformity with the religion is part of the inherent requirements of a position.

This innovation was initially proposed by secular groups who wanted to make it illegal, for example, for Christian schools to make faith a criterion when employing teachers.

At present there are thousands of students in Victoria whose schools require all their teachers to adhere to a faith statement.  These schools would have to radically alter their ethos in order to survive after August, when the Brumby government revisions come into effect. 

Many other organisations will also be impacted. World Vision has long required senior management to endorse a doctrinal position.  But how can they argue that belief in Jesus Christ is an 'inherent requirement' of running a finance department? 

In reality the Brumby government's innovations will lead to much confusion and a good deal of protracted lawfare before Victorians even know how they apply.

The Anglican Standing Committee of General Synod made a well-considered submission on this issue in 2008.  It argued that an inherent requirements test was a poor option, because Christian organisations
  1. 'seek to maintain their distinctive religious mission and to avoid loss of effectiveness, by employing people throughout the organisation who adhere to religious purposes and hold the religious beliefs of the organisation'; 
  2. 'all action is done "to the glory of God"', and this 'makes it impossible to distinguish between specifically religious activities and other activities'; and 
  3. 'the concept of Christian vocation is not limited to clergy or specific ministerial functions within the church, but it includes the work of lay people in whatever capacity they serve.'
There are better alternatives. Diocesan legal experts recommended to parliament in 2009 to define the religious exemption for employment in terms of a 'genuineness' test.  An exemption could then be claimed if done in good faith, in accordance with genuinely held beliefs.  This is no religious 'trump', but would be subject to scrutiny in a tribunal or court. 

As a student at an Anglican grammar school I was grateful that my principal made it his policy to employ Christians throughout the staff.  The character of the school was much better for it. 

Aggressive secularists would be only too glad to see Christian agencies go the way of the YWCA, which has abandoned its Christian identity. The threat to religious institutions in Victoria's EO laws is not that they will be compelled to employ adulterers or gays.  It is that they will have to secularise. 

Those who cite the example of Christ in this matter may recall that he befriended prostitutes and tax-collectors to call them to repentance.  It was the sick, he said, who needed the medicine he had on offer, not the well.   His mode of evangelism does not justify the inherent requirements employment test.

We should be encouraging the Ballieu Government as it seeks a better way to provide the needed religious exemption.

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