'HOT POTATO': Religious Freedom, the Victorian Equal Opportunity Act and the Inherent Requirements Test

Tuesday, 3 May 2011  | Angus McLeay

Over a three year period the previous Victorian State government consulted with the community about revising the Equal Opportunity Act (1995). Revised legislation was enacted in 2010, including changes affecting religious bodies, who were extensively consulted. The Baillieu State government has indicated it shortly intends to reverse some changes.

“The title of this book, unChristian, reflects outsiders’ most common reaction to the faith: they think Christians no longer represent what Jesus had in mind, that Christianity in our society is not what it was meant to be.”

– David Kinnaman & Gabe Lyons, UnChristian: What a New Generation Really Thinks about Christianity... And Why It Matters

“Maintain a good reputation with outsiders.” 1 Timothy 3:7

What does an “inherent requirements test” have to do with the advancement of the gospel? Apart from wondering what an “inherent requirements test” actually is, most Christians - indeed most ministers - will probably draw a blank. It is a section of Victoria’s Equal Opportunity Act (2010) which the new State Government has indicated it wants to remove in response to lobbying by some Christian groups. It is also part of a larger puzzle forming an impression of Christianity as a faith which is uncharitable, self-serving and secretive. To the extent that those perceptions continue to crystallize they hamper our efforts to commend the faith to the wider community.

The inherent requirements test was one of many amendments made to the 1995 Equal Opportunity Act in 2010 after extensive public consultation. The aim of the changes was to promote equality. “Equality” does not mean “sameness” – as some mistakenly imagine - but involves being treated with equal dignity and respect regardless of our attributes or religion. The most strident opposition to amendments to the Act came from Christian lobbies. Their argument was that the changes would compromise Christian communities, schools and ministries. The changes were, it was claimed, a serious threat to religious freedom itself. One of the changes in the 2010 Act was the removal of an exemption for religious groups permitting discrimination against disabled people. Maintaining the right to discriminate against disabled people strikes one as a strange way of protecting religious freedom.

These sorts of broad-ranging exemptions were the kind that had been preserved from the original legislation drafted in 1977. Back then, protection against discrimination was very limited compared to what we take for granted today. For example a famous case which applied the then newly minted legislation involved a female trainee pilot named Deborah Lawrie. For two years she had repeatedly applied to Ansett’s pilot school. In that time ten male applicants were accepted. Finally, using the Equal Opportunity Act, she took Ansett to court over sex discrimination. At the time Ansett’s owner, Reg Ansett, stated that he didn’t trust women to be pilots, and besides, their menstrual cycles meant they couldn’t do the job anyway. Lawrie eventually won and went on to have a successful career as a pilot. It is this kind of unfairness that the Act was designed to address. But as times have changed so have legislative needs.

Those who opposed the recent changes claim that the true motivation for updating the Act was simply to harass Christians and enforce radical secularism. This caricature is good at evoking fear of some insidious threat to our interests. But the mundane reality is that most people in the community (who aren’t religious) aren’t devoted to the destruction of the church or its good work. Most are no more ‘die-hard secularists’ than most Christians are extreme American-style ‘Fundamentalists’. Just as it’s easy enough for atheist Richard Dawkins to find loony Christians to represent the weird Christianity he wants to present, it’s also possible to find extreme secularists to represent a ‘god-hating’ agenda. The truth is that those who want better legislation are motivated by ideals of dignity and a fair go for all, such as Deborah Lawrie needed. They’re ideals most Australians value, not the fringe agenda of a tiny minority.

So what’s the problem with the proposed amendments? There are two obvious ones: transparency and fairness. The issue of accountability is really at the heart of the inherent requirements test. It simply asks religious bodies to be clear about which roles have an inherent requirement involving the faith and why. For example, if a maths teacher in a Christian school is required to share the faith of the school community, that would be stated upfront and there would be some reasonable justification. In public consultations prior to the amendments in 2010 Christian schools gave compelling reasons why roles such as maths teachers might have an ‘inherent religious requirement’. Such arguments would enable schools and other faith groups to choose who to hire.

One would think that stating and explaining how a faith community works would be a plus for our witness. Certainly the apostle Paul was happy to give an account of his faith in various fora, and Peter called Christians to “always be prepared to give an explanation for the hope you have in you.” (1 Peter 3:15) But the campaign against changes to the old Act would rather us not be upfront about why staff in Christian organisations need a faith-based foundation for their roles. The campaign which now has political support from the new Government portrays the church as unwilling to be open and accountable about the very thing we should be most open and accountable for, our faith.

The other problem with the proposed amendments is fairness to employees – or its lack thereof. The Government’s proposed changes will mean the law is vague for everyone but the religious employer. The staff of Christian organisations will be in a more invidious position because of the scope employers would have to treat them differently without reasonable explanation. Employers have a responsibility to employees to inform them what policies may affect their position and prospects. Removing the inherent requirements test reduces that responsibility. Christian employers want to do the right thing by their staff. Legal obligations help reinforce what we should do, as Paul says in Romans, the State is given power by God in order to preserve a good society (Romans 13:4). Greater transparency and accountability will help, not hinder, faith-based organisations maintain the standards they want to uphold.

The dire predictions that the inherent requirements test will result in turmoil for Christian organisations is built on the unsupported and wild assumption that Parliament and / or the courts are intent on destabilising faith communities such as Christian schools and social services. As with any legislative change some adaption may need to occur. But Parliament is able to monitor and appraise this. If we put these normal processes to one side, a mission-based concern for Christians should be what message is conveyed by the campaign against the Equal Opportunity Act. It is creating an impression of Christian self-interest, an unwillingness to be transparent and fair, and a Christianity that is falling short of its calling to represent Jesus to society. We are being unChristian.

© Rev Angus McLeay  amcleay@gmail.com

Angus McLeay is an Anglican minister who recently started a small business in the hospitality industry. Last year he formed an organisation to educate on human rights within the Church, IsaiahOne, following the Federal Government's national consultation on human rights.

Comments

Mark Durie
May 6, 2011, 2:11PM

It is disappointing to see name-calling and misrepresentation in McLeay's article "HOT POTATO': Religious Freedom, the Victorian Equal Opportunity Act and the Inherent Requirements Test"

Using emotionally charged terms such as 'strident', 'lobbies' and 'unChristian', he claims for himself the moral high ground while regarding it as a virtue that in doing so he will win favour in the eyes of some non-Christians. But at the same time he misrepresents and vilifies fellow-Christians who disagree with him. For example:

1. It is not true to claim that religious groups have opposed the removal of the right to discriminate on the grounds of disability. I know of no Christian group who put such an argument forward.

2. It is a gross exaggeration to claim that "Those who opposed the recent changes claim that the true motivation for updating the Act was simply to harass Christians and enforce radical secularism". Some may take that view, but to attribute it to all opponents of the Act is to promote a falsehood. For example, I am someone who has vigorously opposed some specific feature of the new Act, and believe that it WILL encourage a climate in which secularism is enforced, do not and have not claimed that such an outcome is the 'true motivation' of the Act. I would acknowledge that even many of those who would wish, for example, that Christian schools should not be able to make faith a criterion when employing teachers of secular subjects are "motivated by ideals of dignity and a fair go for all". But I disagree with their conclusions in pursuing that agenda, and also with their assumptions about what constitutes a fair go.

3. It is also misrepresentation to claim that "the campaign against changes to the old Act would rather us not be upfront about why staff in Christian organisations need a faith-based foundation for their roles". As a counter example, the argument against the 'inherent requirements' test, which the Anglican Diocese put in 2009 to the former Labor government, was that a "genuineness" test was better suited to the need for transparency. In making this proposal, there was absolutely no desire that Christians not be upfront about the grounds for appointing people. The genuineness test, if accepted, would have encouraged both transparency and accountability.

4. It is quite false to claim that opposition to the inherent requirements test is based upon an 'unsupported and wild assumption' about how it would apply. For example, the Anglican Diocese's submission opposed this test based upon a legal opinion prepared by a senior barrister (who soon after was appointed to the supreme court of Victoria). This opinion considered in detail how the 'inherent requirements' test has been applied in other legal contexts. The opinion pointed out multiple problems with this section of the act. One issue was ceding to a secular tribunal the right to decide which jobs within a religious organisation legitimately (in its view) require some sort of religious adherence or moral/ethical standard over and above the mere functional capacity to perform the job.

5. McLeay asserts that "if a maths teacher in a Christian school is required to share the faith of the school community, that would be stated upfront and there would be some reasonable justification." Is this not a widely naive assertion? On the contrary, submissions by mainstream representative secular bodies to the Victorian parliament's review of the law in 2009 argued for an 'inherent requirements test' because they maintained it would mean quite the opposite, namely that the faith justification would NO LONGER be accepted for a position such as a maths teacher. And they backed the new law for this very reason, and oppose the recently proposed amendments also or this reason. I deplore that McLeay flies in the face of clear evidence, to embrace wild optimism. I also deplore the fact that, on the basis of such naivety, and citing not even a shred of legal analysis to back his view, he vilifies those who disagree with his views as 'unchristian', simply because he is aware of non-Christians who think the worst of them.

In a strange kind of fear-driven logic, McLeay's plight is that his heart leads his head. His heart fears that non-Christian people will think ill of him and especially of his gospel. So his head appeals to his sceptical audience by denigrating other Christians, as if shouting out: 'Look at me, I am not a bad Christian like those other people.'

A better way is to stick to the issues and argue them clearly and simply.

david jackson
May 6, 2011, 8:42PM

This article seems unaware of the Philip Island campsite which did not want to have a homosexual group promoting its ideas on their property.
By the way please delete dwj@chariot.net.au as the above is my new address. Thanks

David Palmer
May 9, 2011, 9:03AM

I agree with substantially with Mark’s criticism of Angus’ article and add the following comments.

1. I find Angus’ argument:

“Those who opposed the recent changes claim that the true motivation for updating the Act was simply to harass Christians and enforce radical secularism. This caricature is good at evoking fear of some insidious threat to our interests. But the mundane reality is that most people in the community (who aren’t religious) aren’t devoted to the destruction of the church or its good work.”

simply naive and misleading.

Yes, most people in the community aren’t devoted to the destruction of the church. But that is not the point. There is a very active core of persons committed to atheism (some) and to anti discrimination cause who most certainly in moulding the church according to their agendas (destroying the church except for the most ardent atheist goes too far). Chief amongst these are the Victorian Equal Opportunity and Human Rights Commission, the former Attorney General, activist judges like Felicity Hampel, and the human rights industry generally. At the 2009 Scrutiny of Acts and Regulations Committee (SARC) hearings into the exception clauses in the Equal Opportunity Act, the human right activists time after time claimed that human rights trumped freedom of religion as if freedom of religion first acknowledged in the 1689 Bill of Rights was not a human right (I was there and heard them say this).

I was one who chose to interpret the new Equal Opportunity Act the way that Angus has done in his article. In fact I wrote in (cautious) support of the changes to the new Act in Australian Presbyterian and Eternity newspaper. People like Mark Durie subsequently unsettled me with their interpretation of “inherent requirements”, so when the Presbyterian Church of Victoria organised a major debate involving Helen Szoke from VEOHRC, Catherine Branson from the AHRC on the one side and Professors Patrick Parkinson, Nicholas Aroney and Nicholas Tonti Filippini on the other at the “Religion in the Public Square” colloquium last year (which was not attended by Angus and very few evangelical Anglicans despite invitations to do so), in question time I put my (and therefore Angus’) understanding of inherent requirements to Szoke, she said that was not the Commission’s understanding and confirmed this in a written paper, that Angus needs to read (I’m sitting in the manse at Wagga doing a locum and do not have access to this paper at present). In the Commission’s opinion, “inherent requirements” means that it is simply insufficient for the Christian School to write into the official school document defining “doctrines, beliefs and principles” adherence to the school’s doctrines as a test for employment as a Maths teacher. In the Commission’s view inherent requirement’s mean the inherent requirements required to teach maths - pure and simple.

Now I think the Commission’s view is wrong but the fact is a) it’s view will impact on a school’s employment decisions – who wants to end up in the Commission/VCAT?; b) there will be some lengthy and uncertain court case(s) required to determine an uncertain law.

In this context it is not unreasonable, in fact entirely appropriate for ACL and others to seek the then Opposition’s agreement to amend the law by the deletion of the “inherent requirements test – which by the way was not in SARC’s recommendation but inserted by the AG.


2. It is not good enough for Angus to write his article and fail to mention the extensive support given to freedom of religion, thought and conscience in the UN instruments, principally ICCPR Art 18, something also that the Victoria Charter of Rights and Responsibilities fails to do, a matter which thankfully the new AG intends addressing.

3. The other matter that Angus fails to mention is Felicity Hampel’s adverse decision against the Phillip Is campsite and her decision was not under the 2010 Act but under the previous 1995 Act.

David Palmer
Church & Nation Committee, Presbyterian Church of Victoria

djpalmer@pcvic.org.au

Rob Kilpatrick
May 9, 2011, 8:06PM

1. Thanks Angus for a very thought provoking article. I for one am glad for the right we have to express opinions and weigh dissenting views - something that has not always been possible in societies dominated by church strictures. Something for us all to bear in mind.
2. I'm interested in the difference of opinion as to what constitutes 'inherent requirements' and has this been tested in law yet. The commission may have a view of what the legislation seeks to do but until its tested its only a point of view.
3. Question for both Angus and David around the inherent requirements issue. If a Christian school employs a maths teacher and has an inherent requirement that the lesson needs to begin with a Christian prayer thanking God for the ordered universe and that the teacher needs to be able to explain the basis of maths as part of the created order is that a kind of self selecting inherent requirement and is it legal? If it is, is this then not the way to both ensure the inherent faith structure of the school and obedience to the law? Just a couple of questions seeking honest answers to aid understanding of the law's limits.
Rob

David Palmer
May 12, 2011, 9:38PM

Hi Rob,

Basically that's the problem. By requiring that the teacher to begin with prayer you are requiring the teacher to be a Christian. A homosexual may be able to pray but an atheist wont.

As I understand what they are saying, Szoke/VEOHRC will contest the schools right to do as you say. I'm up in Wagga until end of June so can't direct you where to find this paper. Perhaps ETHOS has a copy?

Whether they are right or not can only be tested in the courts.

Who is prepared for that? The Phillip Is Christian Camping crowd thought they were safe, but the Court found against them. One reason why they may not succeed in their appeal to the Court of Appeal is the judge determined that they had not acted consistently in not rejecting unmarried couples. We cannot underestimate the determination (and this is really the fault I find with Angus' article) of the human rights/homosexual lobby to break the Church's desire to discriminate according to their religious beliefs.

I hope this helps

David

David Palmer
May 13, 2011, 5:52PM

Further, to the above, this article by Mark Dreyfus in todays The Age gives the way the VEOHRC will be interpreting the inherent requirements test if allowed to stand: http://www.theage.com.au/opinion/politics/blogs/the-dreyfus-files/removing-the-antidisrcimination-shield-20110513-1el4u.html#ixzz1MBgqQ84M..

Angus McLeay
May 17, 2011, 4:10PM

In response to Mark’s comments:
My conclusion (echoing the introduction) uses the first person pronoun about being unChristian: “we” are being unChristian. Like the authors of unChristian I am highlighting a perception which applies to all Christians and for which all of us (me included) have responsibility to counteract to whatever extent possible, eg. “an impression of a faith which is uncharitable, self-serving and secretive”.
The article was not intending to single out individuals (no one is named) nor lay blame for all faults on everyone who lobbied. I am glad, for instance, that Christian lobbies argued that the ‘core / non core’ proposal was flawed.
Mark describes me as “fear-driven” and apparently motivated by winning the favour of others. I think the article itself is evidence that that is not my character. I would also defend on biblical grounds how important perceptions by ‘outsiders’ of Christians are (or should be). The NT makes frequent reference to the perception of the broader community, especially in the context of mission (Matt 5:14-16; 12:33-37; Rom 15:25-28; 2 Cor 8 – 9; cf. Acts 24:17; Titus 2:5; 1 Timothy 3:7; cf. 5:8, 10, 14, cf. 5:20-22; 1 Pet 2:15). That is grounded in the OT vision of God’s people as a light to the Gentiles, a vision classically pictured in the visit by the Queen of Sheba to King Solomon (1 Kings 10; nb. Is 2:2-4).
I ask, are we perceived to be qualitatively different from other interest groups in the community? How do we stand out in terms of character and behaviour? How are we as Jesus put it, a ‘city on a hill’?
My claim that religious groups opposed the removal of the right to discriminate on grounds of disability is based on two observations:
1) The 1995 Act included the right to discriminate against on these grounds;
2) Several Christian groups opposed all changes to religious exceptions in the 1995 Act
The following are quotes from public submissions / websites (more could be added):
“any removal or modification to the sections [of the 1995 Act] protecting them [articles on religious freedom] would unfairly impinge on parents’ right to choose an appropriate education for their child...I urge you to lobby the members of SARC to choose No Change to these sections of the Act” (Christian Education body)
“The suggested changes to the Equal Opportunity Act (1995)...are not only unnecessary but dangerous to the whole community...Religious freedom would become meaningless [if the changes proceeded].” (Catholic organisation)
“Christians have no legitimate grounds to discriminate on the basis or race because we are all one race. And it [the Act] certainly should not discriminate on the basis of colour, but all other characteristics and choices should be matters of freedom of choice, belief, and association.” (Christian lobby group, my italics, seeking retention of right to discriminate on attributes which include disability)
The real point here is that we could have been much clearer that at least some changes could be made without the sky falling in on religious freedom. For example, Catholic Social Services Victoria put down all the grounds on which they did not want to discriminate.
My statement on an “unsupported and wild assumption” was not referring to legal judgments (on which there are differing views). It referred to the motives being attributed to Parliament / courts.
In regard to legal views I was described as “naive” and having “wild optimism”. There is no space to delve into legal debate. I note only that some Christian bodies and individuals supported the principle of an inherent requirements test and, while the details were negotiated in private, the former Government made a deal with the Catholic Church which reportedly accepted the outcome (including the test) as a “fair and correct balance” (The Age, Sept 27 2009).
In regards to non-Christian support for the test, if it was as destructive of religious freedom as widely claimed two implications follow: either those groups are aware of the detriment to religious freedom and don’t care; or they are naive and uninformed. I agree that either or both is true of some groups. It is a stretch to believe that one or both is true of all groups supporting the test.
There is a saying that perception is a form of reality. My article was not judging the accuracy of perceptions by some ‘objective’ measure, eg. whether Christians in this debate really are “uncharitable”. But we must take (more) notice of how we are seen to behave and what messages we appear to send, no matter how well-intentioned or sincere we might be. On that count let me reiterate that the term ‘unChristian’ carries the same meaning as the book of that title which I quoted at the top of the article. It is not an ad hominen term of abuse. It simply says that we are not perceived as representing the Christ whose name we bear. Right or wrong, that is a perception we must wrestle with.

Angus McLeay
May 17, 2011, 4:11PM

Hi Rob. The short answer to your question (2) on whether ‘inherent requirements’ has been tested is no. It’s very hard to say with real certainty how it would work out for many reasons. Nevertheless strong views are held and the main point of my article remains the same whichever view was more accurate (we will never know because the legislation is being amended).
In response to (3) let’s take a maths teacher in a Christian school. The school would need to show the connection between its (religious) ethos and a maths teachers’ job description. An example might be the one you gave: maths teachers are required to lead prayers. That seems to be a persuasive and rational reason why a school could discriminate in hiring applicants for maths teaching.
Without the test no reason or explanation is required – the ability to discriminate is both broader and less scrutable. It seems reasonable to many people that the public have a certain degree of transparency in regard to special exemptions and exceptions for organisations where public money is being used.
David Palmer refers to the speech by Helen Szoke at the public colloquium (which I would have loved to attend but was interstate for). Her speech is on the VHREOC website under . Nothing in Helen Szoke’s speech, nor in Mark Dreyfus’ article later cited by David, contradicts my view. It’s difficult to clarify things by reference to off-the-record comments. Bear in mind that the Commission is an independent statutory body required to act under certain laws. Whatever its views may be, the Commission is not a tribunal and does not have power to define the scope of the test.
Lastly, as the Phillip Island case is on appeal it is premature to draw implications, besides the test would be interpreted in different circumstances and a new law.

David Palmer
May 24, 2011, 9:05AM

Hi Angus,

The problem was not with Szoke's speech but with her response to my question which was then followed up in a paper VEOHRC produced 3,4 weeks later - when I return to Melbourne in 3 weeks I can dig it out for you.

There is a real problem on the basis of VEOHRC interpretation, hence the need to remove the inherent requirements test.

• Your Name
• Email
• Your Comment

Type the code from the image