Reflections on the Proposed Victorian Equal Opportunity Bill 2010

The Victorian Attorney General has put out a new Equal Opportunity Bill which is currently before the Parliament.  This follows on from extensive consultation by the Scrutiny of Acts and Regulations Committee in the second half of 2009.  There is a lot that is new in the Bill, but I am just commenting here on the changes to the religious exemptions. 

Religious exceptions in the 1995 Equal Opportunity Act gave religious groups and individuals a broad freedom to discriminate.  For example, a religious school can select a teacher on the basis of their faith, or a  congregation could reject someone for an ordained position based on their sexual orientation or 'lawful sexual activity'.

It is widely accepted that some level of religious exception is warranted, but the question is now narrow exceptions should be.  The proposed changes to the exceptions achieve a narrowing, but the question is: Have they gone too far? 

The key changes are:

1. Narrowing of areas where exceptions apply
Apart from the appointment of clerics and those involved in religious rituals – where an unlimited exception will still apply – the non-employment areas in which religious bodies can discriminate have been limited to "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity", provided that what is done conforms to the "doctrines, beliefs or principles of the religion" or is "reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion".

For example a synagogue can still choose not to hire their hall out to a Christian group, provided that this decision is in conformity with their doctrines, or is necessary to protected the religious sensibilities of their congregants.

This seems to be an inconsequential change.  The Act has retained particular areas of exceptions precisely because these are the areas where doctrinal considerations apply.  The omitted areas (such as race, disability, age or breast-feeding status) are left out precisely because they are unrelated to doctrinal distinctions:  it seems highly implausible that religious groups would have ever relied on exceptions for other areas under the old Act.

2. Introduction of an 'inherent requirements' test for employment
In the case of employment a narrower exception will apply.  With employment, what is done must additionally must meet two conditions:

"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."

This is a  significant change.  There is a good deal of law on the issue of what is an 'inherent requirement', but I am unaware of much which has addressed faith-related considerations.

An inherent requirement of a position is a fundamental task which defines the work, and which must be carried out in order to get the job done.  This is about achieving results rather than the way of doing a job. For example someone with a disability may be able to do a job in a different way from usual: the means they use is not an inherent requirement – what is important is the outcome.

A number of employment practices of religious groups will have to be reconsidered in the light of this new law, if it is passed.  Positions where religious tests are commonly applied include:

• CEOs and senior staff of church organizations such as schools, missions and welfare agencies.
  For example many church schools include in their constitution a rule that the principal must be a communicant member of a Christian church, or adhere to particular doctrinal positions.  Such restrictions will in future have to satisfy the test that this is necessary to fulfil the 'inherent requirements' of being a principal. 
  
  As another example, World Vision requires senior staff to adhere to a doctrinal statement.  In future such a policy will need to be justified in terms of 'inherent requirements' of the specific positions.  It might be argued, for example, that the head of finance  does not need to hold or follow particular religious beliefs, as this does not impact on their ability to fulfil their core duties.

• Teachers in religious schools are a category of special interest (and likely legal action).  It will, for example, become difficult to require a maths teacher to adhere to certain religious or ethical principles.  

An inherent requirements text was one of the outcomes sought by the Victorian Independent Education Union in its submission to the Scrutiny of Acts and Regulations Committee in 2009:

"The inherent requirements of a job in a religious school should be defined by the fundamental duties that must be carried out in order to get the job done. It is submitted that the inherent requirements of a job in a religious school will vary depending on the role the employee is engaged to perform. Personal lifestyle choices relating to marriage and sexuality, it is submitted, will not be relevant factors in determining whether or not the inherent requirements of a job will be able to be performed or not.

For example, a maths teacher who is living in a de facto relationship in a Catholic school might be required to participate in school mass and prayer assembly with students and will be able to do so. In these circumstances, the maths teacher will still be able to get the inherent requirements of the job done in that he/she can teach the students maths and participate in the religious life of the school in relation to its students. It would, Victorian Independent Education Union Submission July 2009 therefore, be unlawful to refuse to deny that teacher a job simply on the grounds of his/her marital status."

In essence VIEU is saying that requiring a teacher to attend and take part in religious services could be an 'inherent requirement', but requiring them to live by religiously determined sexual ethical principles would not. 

The same could be argued in respect of personal religious beliefs:  a maths teacher could be an atheist or follow some non-Christian religion, but this, it might be argued, should not impact on their ability to fulfil the 'inherent requirements' of their position.

This could mean major changes for those Christian schools which currently require all staff members to adhere to certain religious beliefs and ethical principles.  Currently there are thousands of students who attend such schools in Victoria.

This new Bill will also raise expectations among those who have been unhappy with employment practices of religious groups.  The VIEU, in its submission, has made clear that it would interpret an 'inherent requirements' limitation in a restrictive way.  Hopes will be raised by this innovation, and this means that the issue will be tested in the courts.  A possible scenario could be a group like the VIEU taking a Catholic or independent Christian school to the Tribunal.

Another possible scenario is that the EOC could conduct an investigation of employment of teachers in religious schools.  (The new bill will give the EOC such investigative powers.)  In this scenario, must of the cost of bringing legal pressure to bear on religious schools would be born by the state, through the EOC.

Another possible scenario could be that of a teacher of another faith taking legal action against a religious school.  In 2009 the local Melbourne media publicized a case where a Muslim teacher trainee was unable to secure a placement in a Christian school because of her religion.

 The new bill does provide that:

"The nature of the religious body 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"

However taking doctrines and beliefs into account does not guarantee that the religious consideration in question will be judged to be among the inherent requirements.

• Another significant category is that of non-'religious' appointments by local churches and other religious groups.  In the past congregations have often recruited co-religionists to such positions as administrators, receptionists, playgroup or kindergarten coordinators, finance officers or site managers.  Many congregations have employment contracts or codes of conduct which specify the doctrinal and ethical commitments expected of all church staff.  Such contracts and codes of conduct may become illegal.  They may need to be tested in the Victorian courts.  Legal action is less likely than in the area of educational employment, but the same issues will apply.

One consideration which has perhaps not been adequately covered in the preparation of this new law is the implication of the right to Freedom of Association.  The preference to employ believers by local churches or certain religious schools is a manifestation of this right.  It is striking, by way of contrast, that the exception in the new Bill for political employment does not include the stringent 'necessary requirements' test:

"27 Exception—political employment
An employer may discriminate on the basis of political belief or activity in the offering of employment to another person as a ministerial adviser, member of staff of a political party, member of the electorate staff of any person or any similar employment."

It seems that a politician will be able to employ a receptionist who is a member of their party, but a Catholic priest might not be able to employ a Catholic receptionist.

 3. Introduction of the phrase 'reasonably necessary'
At three points the new Bill introduces the terminology of 'reasonably necessary' in relation to the exceptions.  This is to make the tests more 'objective'.

In law an 'objective' test appeals to the idea of the 'reasonable person', and how he/she would act or think.  English humorist Sir A.P. Herbert wrote:

"[The reasonable person] is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen ... [he] invariably looks where he is going, ... is careful to examine the immediate foreground before he executes a leap or bound; ... neither stargazes nor is lost in meditation when approaching trapdoors or the margins of a dock; ... never mounts a moving [bus] and does not alight from any car while the train is in motion, ... uses nothing except in moderation..., and even flogs his child in meditating only on the golden mean."

But the question to be asked is: "Can the reasonable person 'get' religious doctrines?"

In order to apply this test in courts, theological arguments will need to be put and considered.  Some might say that religion is itself unreasonable, by definition.  My hunch is that the "Australian reasonable person" is an avowed secularist, and either has little patience for religious distinctions, or is overly deferential toward them, but only because they can't understand them.  They are not someone whose opinion I would chose to rely upon in religious controversy.

We have already seen the difficulty caused by an 'objective' test in the case of The Islamic Council of Victoria vs Catch the Fire.  The Racial and Religious Tolerance Act 2001 allows exceptions if conduct is done 'reasonably and in good faith'.  In his discredited findings Judge Higgins was forced to make theological judgments in a number of contexts where an objective test was called for, and his judgment was partly derailed because of this.  Unfortunately Judge Higgins' 'reasonable person' was not very good at understanding theological arguments.

It is a great pity that the Attorney General chose not to use a "genuineness" test instead of a "reasonableness" test.  This could have allowed the genuineness and relevance of a conviction to be tested, without subjecting religious mentalities to the test of essentially secular concepts of reasonableness, as worked out in the mind and worldview of the 'reasonable person'.

4. Will 'the religion' please stand up
There is a difficulty with the meaning of the term 'religion' in the Bill.  There is no discrimination, it is said, when something is done to conform with the 'doctrines, beliefs or principles of the religion.'

Truth be told, the exceptions in the 1995 Act were so broad that the meaning of 'the religion' has not needed to be tested.   However the operation of new Act will be tested, and quite soon.  The issue of who speaks for 'the religion' will quickly emerge as an issue.  This will not always be a straightforward matter.  For example, in the case of a non-denominational Christian school, will 'the religion' be Christianity, the common beliefs held in the school community, the Christian creeds, or the faith statement of the school's constitution?

In identifying 'the religion', existing diversity within Christian denominations is likely to arise as a problem.  Many denominations have doctrinal documents or principles which may not be followed exactly by individual churches or bodies, and major disputes can exist within a denomination over how  fundamental principles are to be interpreted.  This is particularly the case in relation to sexual ethics, which is one of the areas which the Act will be applied.  (The American Episcopal Church is even now in the process of dividing over the issue of same-sex relationships.) It is absolutely clear that in particular denominations, different congregations will apply different doctrinal principles in the employment of staff.  But which congregation is acting in accordance with 'the religion'? Will VCAT be able to help churches find the answer to their troubling debates over sexual ethics?

Suppose, for example, that a local Anglican parish sacks a lay employee because of their extramarital sexual relationships (gay or heterosexual), but another parish in the same denomination has no problem with employing people in this very same circumstance.  This issue comes to VCAT, or ultimately to a higher court, and testimony is given on the doctrines of 'the religion'.  The evidence is divided.  One side cites the views, say, of Bishop Shelby Spong, whilst another quotes, say, Archbishop Akinola, Primate of Nigeria.   Lengthy submissions are presented on the teachings of the Bible, and how these should be interpreted.  The judge will be asked to make a ruling on what are the 'doctrines, beliefs or principles' of 'the religion'.  This will need to be done with a view to the sensibilities of the 'reasonable person' (the objective test described above).  The judge will find this more than a bit odious.  Perhaps the denominational head could be asked for an official view.  At this point, all hell breaks loose in the denomination, as both sides of the controversy start fighting their theological battles in the public media.

It must be emphasized that the ambiguity in meaning of 'the religion' has existed all along, but because it never mattered, the issue has never arisen.  Now that the government is providing sufficient legal ambiguity for parties to take these matters to VCAT for decision, the issue will emerge from the  shadows.

The new pressures raised by this problem of what 'the religion' means will be felt least by those denominations which are able to assert a high degree of internal doctrinal conformity.  The Catholics and the Presbyterians could  fare better and extract a higher degree of exceptions from the Act than the Anglicans or the Uniting Church.

All in all this Act could have the effect of pressuring denominations to be less diverse in their theology: otherwise they might only receive the 'lowest common denominator' exception, which will be the minimum needed by their least rigorous adherents.

The legal processes triggered off by the new Act could  increase pressures on denominations like the Anglicans or the Uniting Church to divide rather than continue to tolerate their internal theological diversity.  This is a law which – unwittingly – could penalize religious diversity.

Conclusion
This new Bill will raise the expectations of those who have long been seeking to restrict discrimination by religious bodies.  If the Bill is passed, Victoria can expect a fairly active period of complaints and litigation as ambiguities are brought to VCAT and higher courts for clarification.  The months and years ahead will be a time of religious instability and heightened religious tensions.  The government will suffer in popularity, especially in the light of the retention of a more generous exception for political employment.

If this Bill is introduced, religious groups will need to develop defensive strategies to protect their freedom to employ co-religionists with compatible ethical principles.  Playgroup Coordinators will become 'Playgroup Evangelists', and Site Managers will become 'Facilities Ministry Team Leaders'.  But even with such changes, many religious groups could experience real difficulties maintaining their spiritual identity in their workplaces.  Those religious groups with more backbone, and more clearly defined theological boundaries could fare better, because they have a greater chance to extract exemptions based on clearly articulated doctrines.  Those groups which with vaguer and perhaps more 'inclusive' theologies, and greater internal theological diversity, will come under greater pressures to secularization of their employment practices.

The Victorian Labor Government has gone a long way down the track in committing itself to this Bill.  It has already considered extensive advice.  I hope that they will, even at this late stage, reconsider the religious aspects of this divisive law, which will soon incite new levels of legal and spiritual conflict in Victoria.