Hansard debates

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.