Victorian proposals to further limit religious freedom rights

Associate Professor Neil Foster

The Victorian government has recently announced proposals to further limit important protections for religious freedom currently applicable to religious persons, bodies and schools in that State. The recent proposals have been put forward as dealing with the problem of religious schools sacking gay teachers, or expelling gay students: see this comment from The Age: “Religious schools in Victoria to lose the right to sack LGBTQ staff” (Sept 16, 2021). However, the details of the proposals hinted at in the recent “Fact Sheet” provided by the government go much further than this. In short, if the government pursues these proposals, they will

• remove the right of any religious schools to make staffing decisions based on whether or not the staff member agrees with fundamental moral values being taught by the school, by narrowing the grounds on which a staff member can be hired or fired to “religious belief” alone (and it seems from the way this is worded in the document, to mean that this will apply even to someone hired as a “religious studies” teacher!) This rule will also apply to any organisation “providing services funded by the Victorian Government”.
• impose on all schools and “religious bodies” (however that is defined) a rule that any staffing decision based on religious beliefs must be justified by demonstrating that the “inherent requirements” of the position require such a criterion; the implication being that a secular Victorian tribunal or court will have to determine whether such requirements are applicable by examining the religious beliefs of the body or school for themselves;
• remove completely the current right enjoyed by private Victorian citizens under s 84 of the Equal Opportunity Act 2010 not to be sued for discrimination where they can demonstrate that their action was “reasonably necessary… to comply with the doctrines, beliefs or principles of their religion”.

I described these as “further” limits on religious freedom because the Victorian Parliament has recently enacted provisions concerned “conversion practices” which will substantially interfere with the rights of religious persons to teach the doctrines of their faith. (These provisions are due to commence in February 2022). Victoria, despite being one of only a few jurisdictions in Australia to have enacted apparently broad protections for religious freedom in its Charter of Human Rights and Responsibilities Act 2006, s 14, continues to treat this right as one which can be downplayed and minimised.

Background

Religious freedom is protected in Australia by a patchwork of laws in different jurisdictions dealing with different topics. There is no over-arching federal protection of this right at the moment, s 116 of the Commonwealth Constitution applying only to laws passed under authority of the Commonwealth Parliament, and not to State laws. (See this book chapter where I review the overall topic in Australia at the moment.)

One of the ways in which this right is protected at the moment is that various laws forbidding unjust discrimination in different jurisdictions, contain specific provisions designed to balance out the right not to be discriminated against, with the right of religious freedom. These “balancing clauses”, or “exemptions” as they are often called, recognise that, especially in light of the corporate aspects of religious freedom, the right of a religious body to operate in accordance with the faith that justifies its existence, may mean that it needs to only accept workers who agree with the ethos of the faith. (For a paper I wrote which provides a table listing the religious balancing clauses in operation around Australia in 2017, see here. For a survey of the area see this more recent article by Sarah Moulds.)

The Current Victorian Law

Presently the relevant Victorian law is to be found in the Equal Opportunity Act 2010 (Vic) (“the EOA”), and in particular in sections 82-84 of that Act. Briefly, s 82 (1) provides an exemption from the operation of all of the provisions of the EOA forbidding discrimination to religious bodies in connection with the employment of clergy and others appointed to carry out specifically “religious” functions. Section 82(2) provides a slightly narrower exemption, limited to the “prohibited grounds” of “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity“. This exemption applies to “religious bodies” and allows what would otherwise be discriminatory decisions to be made so long as each decision:

(a)     conforms with the doctrines, beliefs or principles of the religion; or 

(b)     is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

Section 82(2) EOA

The set of “prohibited grounds” to which s 82(2) applies are described by the Victorian government’s Fact Sheet describes as “personal characteristics”. I am reluctant to accept this terminology as it is clearly designed to paint all of these matters as elements of “personal identity”, perhaps implying that they cannot be changed. But each of these grounds will show itself in behaviour of some sort, and at least with some of them it is clear that they can be changed by the person’s own decision. Each of the characteristics in this list (with the exception of “religious belief”) involves issues relating to sexual identity or behaviour. They are all in this list because they represent either behaviour or characteristics on which religious groups have historically made important distinctions (for example, on the gender of religious leaders or the appropriate context for sexual activity). I will adopt the somewhat clumsy but, I think, more accurate phrase “religion or sex grounds”.

Under s 83 of the EOA, religious schools as defined are allowed to take the “religion or sex grounds” into account in decisions made “in the course of establishing, directing, controlling or administering the educational institution”. Under s 84, in a somewhat unique provision for Australian jurisdictions, individuals in Victoria (not only “religious bodies”) are permitted to rely on the “religion or sex grounds” in decision-making if such a decision “is reasonably necessary… to comply with the doctrines, beliefs or principles of their religion”.

Proposed changes

The following description of the proposed changes is taken from the official Fact Sheet issued by the Victorian government.

(a) Religious schools and other religious bodies only allowed to take religion into account

The first of the proposed changes, as noted above, will remove the right of any religious schools to make staffing decisions based on whether or not the staff member agrees with fundamental moral values being taught by the school. It will so by narrowing the grounds on which a staff member can be hired or fired to “religious belief” alone. This rule will also apply to any organisation “providing services funded by the Victorian Government”.

To quote: after noting the independent “inherent requirements” changes (noted below), the document continues:

In addition, when running a school or providing services funded by the Victorian Government religious bodies will only be able to discriminate on the basis of a person’s religious belief (not on other personal characteristics).

Note the words “in addition”, making it clear that this is not just a clarification of the “inherent requirements” proposal, but a new restriction. What this will mean, it seems, is that this restriction will apply even to someone hired as a “religious studies” teacher! To start with schools, this means that a Christian school which has been set up to support a Biblical world-view, including Biblical injunctions about sexual morality, would be required to appoint a teacher to run its Biblical studies classes who was openly in a de facto relationship with their boyfriend or girlfriend, contrary to the Bible’s teaching. (The idea that a teacher’s “private life” could be concealed from students for very long simply sounds simply naive when the reach of social media is taken into account, let alone the “grapevine” in the staff common room.) The school may also have clear views based on their reading of the Bible that biological sex is a reality and ought to be reflected in a person’s life, so they may not want someone who identifies as the opposite sex to their biological sex to be teaching the Biblical morality classes. It is very clear in the Christian Bible that “teaching” is not just imparting information, but involves modelling behaviour in accordance with the teachings (see eg 1 Timothy 4:12, James 3:1 ).

This very limited form of balancing clause, where a religious group is obliged to ignore a significant religious principle in hiring and firing decisions, is elsewhere found in Australia only in Tasmania and (more recently) in the ACT. The Anti-Discrimination Act 1998 (Tas) contains only two narrow exemptions for religious bodies. Under s 27(1)(a) such a body may discriminate on the grounds of gender if this is required by religious doctrine (hence the Roman Catholic church may continue only to ordain male priests.) Under sections 51, 51A and 52 religious groups may discriminate in some cases on the ground of religion in hiring and admission to schools, and appointment of religious leaders. But no exemption at all is provided for decisions linked to sexual identity or orientation or marital status.

Under the Discrimination Act 1991 (ACT) the situation is more complicated but still quite narrow. There is a general balancing clause applying to religious bodies making decisions on the “religion and sex” grounds in s 32 of the Act, but it does not apply to staffing or student admission decisions by religious schools. While there is allowance for religious schools to make such decisions in some circumstances on the basis of religious belief (see s 46), there is no allowance for schools in the area of issues relating to sexual morality or gender identity.

This proposed Victorian amendment will also impose on faith-based schools, chosen by parents to allow their children to be educated in a particular religious tradition, a requirement that they employ teachers and staff, even teachers of religion, who live and advocate for moral choices that contradict that religion.

A common trope of support for these amendments refers to the fact that “public money” is being provided to faith based schools. This argument, when analysed, fails. “Public money” is not drawn from some magic pot in the sky- it is largely made up of taxes that have been paid by members of the public, a substantial portion of whom have religious convictions! Australia has long recognised that it is only fair that such taxpayers be given a choice to have their children educated in accordance with their religious convictions, and hence has provided public funding to those children, like all other children in the country. If the government now decides that such schools are not to be allowed to educate children in accordance with the faith of the parents who send their children to the schools, they will soon find that such schools, now an integral part of the educational framework of our country, will simply disappear. The financial burden of teaching those children will fall fully on the taxpayers of Australia, instead of, as now, being supplemented by the payment of fees being provided by religious parents. These are not the primary reasons to be concerned about these changes- the primary reason is that it is the right thing to do, to support religious freedom. But they are consequences that governments will need to take into account.

So far I have not mentioned the interaction of State law with Federal laws, but there is another important consideration to be taken into account. It seems more than likely that State law cannot constitutionally remove religious freedoms given to schools by the Commonwealth Parliament. On this basis the Victorian proposals are not simply bad policy, they will be legally ineffective (though resolving that issue will be expensive and time-consuming for all concerned).

I have previously rehearsed the arguments here when commenting on the Tasmanian legislation in this paper (from p 23), but it seems a good occasion to repeat my arguments. (I have adapted those previous comments by reference to the proposed Victorian changes.) Those who are not interested in the fine points of s 109 of the Constitution can pick up the rest of this post under the next heading.

(b) The proposed Victorian law likely to be unconstitutional and invalid

The logic is as follows. The Sex Discrimination Act 1984 (Cth) (“SDA”) forbids discrimination on broadly the same “prohibited grounds” as the Victorian EOA. That Act, in sections 37 and 38 currently allows religious bodies, including religious schools, to make hiring and firing, and admission, decisions in accordance with their religious beliefs.

The Commonwealth Constitution has as one of its functions the allocation of law-making responsibility between the Federal and the various State and Territory Parliaments. Where there are multiple legislative bodies there is always the dilemma of conflicting commands. The Constitution s 109 resolves that clash in favour of the Commonwealth Parliament.

Section 109 renders State law inoperative where it clashes with Federal law. One recognised type of clash is where the Federal law has “covered the field”. This type of clash, however, is not applicable to this case. In Viskauskas v Niland (1983) 153 CLR 280 the High Court ruled that the NSW provisions of the Anti-Discrimination Act 1975 relating to racial discrimination were inoperative due to the covering of the relevant field by the Commonwealth Race Discrimination Act 1975.

To overcome that problem, and allow State law on the area of discrimination to have concurrent operation, since that time all the Commonwealth discrimination laws have contained a “non-covering” clause to make it clear that State law on the matter is to be allowed to operate generally, so long as it does not clash in other ways. Such a provision is to be found in s 10 of the SDA:

SDA 10 (2) A reference in this section to a law of a State or Territory is a reference to a law of a State or Territory that deals with discrimination on the ground of sex, discrimination on the ground of sexual orientation, discrimination on the ground of gender identity, discrimination on the ground of intersex status, discrimination on the ground of marital or relationship status, discrimination on the ground of pregnancy or potential pregnancy, discrimination on the ground of breastfeeding or discrimination on the ground of family responsibilities.

(3) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act. (emphasis added)

This means that Victorian law on discrimination may continue to operate, so long as it is “capable of operating concurrently” with the SDA. But what does this mean? Clearly where a person is bound to do an act under the Commonwealth law, but forbidden from doing it by the State law, that the State law will be inoperative.

But the further question that arises here is, suppose a person is permitted to do something under the Commonwealth law, but forbidden from doing it under State law, is there a relevant clash? In short, the authority of the High Court is that in such a case, the State law is also inoperative. There can be no concurrent operation in such a situation.

One example may be seen, outside the specific area of discrimination law, in Bitannia Pty Ltd & v Parkline Constructions Pty Ltd [2006] NSWCA 238. A defence, which was available under Commonwealth law, would have been precluded from being raised if the relevant State law was operative. The NSW Court of Appeal held that, since this was the case, the State law was inoperative to that extent. This was because of “the existence of a right arising under a Commonwealth law and the direct impairment of its enjoyment, as a result of the operation of a State law”- at [115]. Another, older, example of this sort of principle can be seen in Colvin v Bradley Brothers Pty Ltd [1943] HCA 41; (1943) 68 CLR 151. There Commonwealth law gave a right to employers to employ women on certain machines, but State law prohibited such employment. In the circumstances, the State law was inoperative, as it would have impaired the enjoyment of a right given by the Commonwealth law.

Another case where this issue arose was Dickson v The Queen [2010] HCA 30. There Commonwealth law made a conspiracy to steal Commonwealth property a crime in certain circumstances, but Victorian law imposed criminal liability in a broader set of circumstances. The High Court ruled that the Victorian provision was inoperative. At paras [13], [15] they summed up previous authority on the matter in this way:

[13] The statement of principle respecting s 109 of the Constitution which had been made by Dixon J in Victoria v The Commonwealth was taken up in the joint reasons of the whole Court in Telstra Corporation Ltd v Worthing as follows:

“In Victoria v The Commonwealth, Dixon J stated two propositions which are presently material. The first was:

‘When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.’ …

[15] The passage in Telstra which is set out above was introduced by a discussion of earlier authorities which included the following:

“Further, there will be what Barwick CJ identified as ‘direct collision’ where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided. Thus, in Australian Mutual Provident Society v Goulden, in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question ‘would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act 1945 (Cth)’. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question. But that is not this case.” (emphasis added)

Dickson v The Queen [2010] HCA 30, [13]-[15] (footnotes omitted)

The Court stressed, at [19], that this operation of s 109 was important: not only for the adjustment of the relations between the legislatures of the Commonwealth and States, but also for the citizen upon whom concurrent and cumulative duties and liabilities may be imposed by laws made by those bodies. They concluded that the State law was inoperative in the following passage:

[22] The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code. In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of “direct collision” because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law. (emphasis added)

Dixon v The Queen [2010] HCA [22]

These remarks are directly applicable the situation created by the “overlapping prohibitions” which would be set up if the Victorian law were allowed full operation. The Commonwealth SDA s 37 would allow a religious organization to adopt a policy that would involve not hiring a person advocating and living out a policy that favoured sex outside marriage (arguably their “marital status”), because hiring such a person would either inflict “injury to the religious susceptibilities” of believers, or not be in conformity with the “doctrines, tenets or beliefs” of the religion.

However, such an organisation, if the proposed Victorian law were operative, would be acting unlawfully. It seems fairly clear that this would be a “direct impairment” by a State law of a right given by a Commonwealth law. To adapt the language of the Dickson judgment, the Victorian law would “alter, impair or detract from the operation of the federal law by proscribing conduct of the [organization] which is left untouched by the federal law”, and “the State law, if allowed to operate, would impose upon the [organization] obligations greater than those provided by the federal law”.

As a result, it seems likely that these provisions of the proposed Victorian law would be “inoperative” in this sort of case by virtue of s 109 of the Constitution.

To sum up, in general, in those areas where the prohibited grounds of discrimination set out in the Commonwealth SDA and State laws overlap- particularly in the specific areas of sex, sexual orientation, marital status, and gender identity – any State laws which provide a more restrictive set of criteria than the Commonwealth law, would remove a liberty given to religious organisations by the Commonwealth law, to make hiring and firing determinations in accordance with the criteria of their actions “conform[ing] to the doctrines, tenets or beliefs of that religion” or doing what is “necessary to avoid injury to the religious susceptibilities of adherents of that religion”. These State laws would would impair the operation of the Commonwealth law, and in respect of those overlapping grounds would be inoperative in accordance with s 109 of the Constitution.

(c) Imposing an “inherent requirements” rule

Another proposal flagged by the government is that, even in areas where religious bodies are given authority to make decisions based on their faith commitments (essentially, if the first proposal goes ahead, only in the area of “religious belief” discrimination), no requirement can be imposed unless it is an “inherent requirement” of the position. This would mean, apparently, that a Christian school which had decided that it wanted to operate as a holistic community of believers, so that every member of staff would support and model their religious beliefs, might be unable do so if it could not persuade outsiders that the mathematics teacher, or the cleaner, ought to share their faith.

Victorians would be forgiven for a feeling of deja vu at this point. A very similar proposal was put forward, and at that time defeated, back in 2016. I provided a critique of these proposals at the time: see here and here. I recommend perusal of those comments, and linked comments by other colleagues. Here I will simply repeat two paragraphs:

The effect of the amendments, however, is to seriously undercut the religious freedom of many religious schools and charitable organisations, and indeed to undermine the very reason for their existence. While at first it might seem reasonable for an organisation to be required to show that a maths teacher or a janitor being a believer is part of the “inherent requirements” of the position, the crucial question will be: who makes that call? who decides what is important, and what is not, in the religious life of the organisation?

This point has been made well by commentator Murray Campbell in his post “Incoherent ‘inherent requirement’ test” (2 Sept 2016):

“[I]s it reasonable for a Government to determine what constitutes required religious adherence or not? Is it the Government’s role to dictate theology and ministry practice? Does the Government have the necessary skills and knowledge required to adequately understand theology and therefore make the right judgement regarding the question of what is inherent?”

(d) Removing religious freedom rights enjoyed by individuals

Finally, the foreshadowed proposals would, it seems, remove the right currently enjoyed by Victorians under s 84 of the EOA to have their religious beliefs considered when discrimination claims are made against them. To quote the Fact Sheet:

Individuals will not be able to discriminate in the circumstances covered by the Equal Opportunity Act in order to comply with religious beliefs.

While s 84 is fairly unique among discrimination laws in Australia, no serious reason is offered for its repeal. Indeed, the Fact Sheet notes that it is rarely invoked, most discrimination claims being made in a workplace context where an employer will often be an organisation rather than an individual. This seems a classic case for application of the maxim “if it ain’t broke, don’t fix it”!

Conclusion

The proposals put forward here by the Victorian government will compound existing limits being imposed in that State on the religious freedom of individuals and religious groups. There is no evidence of wide-spread discrimination in schools offering education from a religious framework. There are many alternatives for those who do not share these religious views. It is to be hoped that these proposals are not enacted.