Victorian anti-discrimination bill limits religious exceptions

The Victorian parliament recently passed a bill that aims to “better balance” the right to equality with the right to freedom of religion. The amendments are set to remove exceptions to the prohibition of discrimination for religious bodies and religious educational institutions.

Currently, Victoria’s equal opportunity laws give said religious entities “a broad scope” to discriminate when hiring and firing, and when deciding if they will provide services to an individual.

“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,” Jaclyn Symes MP said during the bill’s second reading in the Legislative Council.

The amendments introduced relating to 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,” Symes said.

To address the interests of said religious organisations, Symes said that the 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.”

Specifically, 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,” Symes added.

Religious entities that wish to discriminate in employment would be able to do so in “appropriate circumstances.” Under the bill, a new test for employment by said entities is put in place to allow discrimination if the following elements are 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.

“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,” Symes said.