Victorian AG answers questions about Christian schools affected by a new law

Victoria plans legislation that will narrow religious exemptions to anti-discrimination laws “making it unlawful for religious bodies and schools to discriminate against an employee because of their sexual orientation, gender identity, marital status or other protected attribute.”

Eternity described the proposal as providing “More opportunities for LGBTIQ persons and less freedom in hiring for Christian schools and other institutions are the aim of new Victorian laws foreshadowed by the Andrews government.”

We put a series of questions to the Attorney-General’s department with the aim of getting more clarity, and they have given us a very detailed response.  Eternity’s questions are in bold. As expected there are questions left over for the government’s consultation process. We hope this takes the process forward. John Sandeman

At the outset, we want to make clear the scope and intent of these reforms. Specific answers to questions are set out below.

Your readers should feel confident that, as a faith-based school or service provider, this legislation will not take away their right to establish a faith-based culture in the organisation by hiring and promoting adherents of their religion.

The vast majority of religious schools and organisations will be able to continue operating as they do now. They will still be allowed to hire principals and other leaders who are adherents to their religion if this is part of establishing a culture of faith throughout the school or organisation.

The overarching intent of these reforms is to prevent discrimination based on gender identity, sexuality or other aspects of a person’s identity, where this is unrelated to the person’s religious beliefs or the nature of their role. It is about eliminating practices that exclude particular individuals – whether based on gender identity, sexuality, marital status, etc – where this has no bearing on the person’s ability to do their job.

The legislation will effectively say to religious organisations that when they make decisions about hiring, firing and so on, they can preference adherents of their faith, but cannot dismiss someone because a protected aspect of their identity conflicts with the organisation’s religious views. They can only fire such staff if the views they hold fundamentally undermine their ability to serve the school or the organisation in accordance with its faith.

More specifically, schools will be able to fire a teacher if, for example, the teaching of religious ethos is a core part their job (an “inherent requirement”) and they cease to be an adherent to the school’s religion, such that it is not possible to keep them on (i.e. the dismissal is “reasonable and proportionate”).

However, they will not be able to fire, for example, a non-teaching staff member who has no contact with students and is not otherwise involved in religious worship at the school (i.e. conformity with religious belief is not an “inherent requirement” of the role). Equally, schools won’t be able to use religious belief as a way to fire someone because of their identity. For example, if a school is aware that several teachers don’t hold their requisite religious beliefs but only takes action against a gay teacher, this would be unlawful.

Importantly, the reforms won’t affect religious bodies such as churches and mosques in their appointment of ministers, training and education of ministers, and in relation to who participates in religious practices. These organisations currently have special protections in these areas, which are not changing.

Will religious schools be able to hire heads and other executive staff based on the religious convictions of the school? The press release only refers to religious studies teachers.

Religious schools will continue to be able to employ adherents of their religion and require employees to support the religious ethos of the school. This applies not only to chaplains and the like but also to principals and other executive staff.

The ability of religious schools to unlawfully discriminate against staff on certain grounds will require a clear connection between the role of the employee and a religious belief. This connection is known as an ‘inherent requirement’ and means that the person legitimately cannot do what the job requires. For example, in other contexts, discrimination is allowable where:

  • A person under 18 years of age may not be able to meet the inherent requirements of a delivery job if they are not yet eligible for a driver’s licence
  • If a government agency is looking for an Aboriginal liaison person, they can say that they will only hire an Aboriginal person.

Some schools require teachers to reflect religious convictions across the syllabus, and hire believers on that basis. These schools may not have a separate category of “religious studies teacher”. Will those schools have to stop doing that or restructure their staff?

Religious schools can continue to recruit and hire staff who support the religious convictions of the school. The school will need to give thought to working out which roles require teachers to communicate the religious ethos of the school, as those are the roles where adherence to the religion can be required. For some schools, this may include more than a religious studies teacher.

Schools based on religions that do not affirm LGBTIQ persons’ sexual orientation will have teaching that contradicts LGBTIQ staff identity. Will this mean that the staff will not be able to push back against the school’s teaching?

The proposed changes provide protection for staff against adverse treatment on protected grounds under the anti-discrimination laws, including sexuality, gender identity, marital status, disability and so on. The changes mean that religious beliefs which permit adverse treatment unrelated to the person’s role may not be covered by an exception.

Example: A school becomes aware that a staff member is gay after they attend a Pride event in their own time, with no direct connection to their school duties. The teacher remains willing to promote the views of the school’s religion to the students. The changes mean that it may be unlawful for that school to take adverse action against the staff member.

Whether adverse treatment (such as firing a staff member) is protected by an exception for religious belief will depend on whether conformity with religious doctrine is an inherent requirement of the teacher’s role, whether the teacher is unable to meet that requirement because of their religious belief, and whether the school’s action was reasonable and proportionate in the circumstances.

Example: A teacher whose role includes a substantial amount of religious instruction, converts to another faith or cannot continue to promote the view of the religion to the student, and is unsuitable to continue in another role. The school will be able to dismiss the teacher.

Will this legislation mean that local churches have to hire staff who might wish to live in opposition to the church’s teaching?  

The Equal Opportunity Act currently has broad exceptions for churches in relation to the ordaining or appointment of priests or other ministers of religion, training or educating people seeking to be ordained or appointed ministers and choosing people to participate in religious practices. We are not changing these provisions.

In relation to other staff, religious bodies, including churches, will still be able to hire adherents of faith where this is an inherent requirement of the role.

Would a religious bookstore have to hire staff who might wish to live in opposition to the bookshop’s views as a religious organisation?

If a religious bookstore is considered a ‘religious body’ under the Act, it will have the same exceptions available to it in relation to staff as applies to other religious bodies such as schools and welfare agencies. The bookstore may be able to lawfully discriminate against a staff member on the basis of the staff member’s religious belief, if conformity with the religious beliefs is an inherent requirement of the role and the proposed action by the bookstore is reasonable and proportionate in the circumstances.