Equal Opportunity Amendment (Religious Exemptions) Bill 2016
In August this year, the Victorian Labor government tabled a bill to amend the Equal Opportunity Act 2010 (VIC) (“the Act”). The Equal Opportunity Amendments (Religious Exemptions Bill 2016 (VIC) (“the Bill”) proposes reinstating the “‘inherent requirement test’ for employment by a religious body or religious school” which the previous Liberal government removed. The test, according to the current Attorney-General, “was intended to limit the ability of such organisations to discriminate unreasonably against people with particular characteristics.”
The crux of anti-discrimination legislation is the prohibition of discrimination on the basis of a “particular personal attribute”, in certain areas of public life, unless an exemption applies. In short, the amendment to the Act proposes prohibiting a religious body or school (“an employer”) from discriminating against a job applicant on the basis of the applicant’s religious beliefs (or lack thereof), sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity (“the attribute”), unless the employer can demonstrate that it is an inherent requirement of the job that the applicant conform with the employer’s religious doctrine, beliefs or principles and, because of the attribute, the applicant does not meet that inherent requirement.
Dr Greg Walsh, a Senior Lecturer at the University of Notre Dame, commends the “Labor government’s commitment to combatting… discrimination”, however, he describes the inherent requirement test as “deeply flawed” insofar as it requires “secular courts to decide religious questions”. Dr Walsh also argues that the application of the test would make it “extremely difficult for a religious organisation to maintain its religious identity”, which potentially infringes a number of rights, namely religious liberty as well as the freedoms of association and expression.
In his Statement of Compatibility the Attorney General acknowledged that the Bill affects two important rights enshrined in the Victorian Charter of Rights, namely “the right to recognition and equality before the law (section 8) and the right to freedom of thought, conscience, religion and belief (section 14).” The Attorney General argued that the proposed amendment “modifies the existing balance between the right to equality and the right to freedom of religion” in that it better protects job applications from discrimination while “continu[ing] to allow to allow a religious body or school to discriminate in employment in appropriate circumstances”.
In citing the Victorian Court of Appeal in Christian Youth Camps v Cobaw Community Health Services  VSCA (which we have written about previously), the Attorney General stated that “the balance of these rights does not involve the privileging of one right over the other, but a recognition that the rights co-exist. It is up to Parliament to decide how best to balance these rights.”