Vic Equal Opportunity Bill to Address Religious Exceptions Introduced

On 27 October 2021, the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) (‘the Bill’) was introduced in the Victorian Legislative Assembly. The Bill, introduced by Minister for Crime Prevention Natalie Hutchins (‘the Minister’), is intended to strengthen Victoria’s protections against discrimination by limiting the scope for discrimination in employment and during the provision of services by religious organisations. The Minister specifically referenced LGBTQI+ Victorians as people this legislation seeks to protect in her second reading speech.

The Bill has yet to pass the lower house.

The current law

Currently in Victoria, there is an exception to discriminate under the Equal Opportunity Act 2010 (Vic) (‘the EO Act’). Under section 84 of the EO Act, religious bodies and schools are allowed to discriminate based on a person’s “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” in the course of the establishment, direction, control and/or administration of that religious body or school, according to the Bill's explanatory memorandum.

The Minister commented in regards to this, in her second reading speech, that:

The Bill seeks to narrow this religious exception under the EO Act, particularly with regard to schools and employment in schools. The Minister expressed, in her second reading speech, that the Bill would:

In her second reading speech, the Minister further acknowledged that there is division on this sort of legislation. She said that in consultations with faith groups, LGBTQI+ groups, and educational bodies, “many felt the reforms in this Bill do not go far enough”. The Minister recognised that while some religious groups felt that “forms of discrimination which are permissible under current exceptions are contrary to their religious teachings and principles”, other faith communities have different views.

A new test for religious discrimination in employment

This Bill endeavours to establish that religious bodies or schools cannot discriminate simply on the fact that a person possesses a particular attribute. Instead, the Bill proposes amendments that would only allow discrimination on the basis of inconsistent religious beliefs.

The Bill proposes the introduction of a new test. As summarised in the Minister's second reading speech, an organisation seeking to rely on the religious exception, in an employment scenario, would need to satisfy three elements, being:

1. That “conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the job”;
2. That “a person cannot meet that inherent requirement because of their religious belief or activity”; and
3. That the “discriminatory action proposed to be taken against the person is reasonable and proportionate”.

Element 1: Inherent Requirements

The Minister explained that to satisfy this element, the organisation would need to show that conformity with certain religious beliefs is inherently required as part of the particular role.

Whether a belief is an inherent requirement, must be assessed in relation to the actual performance of the role. The Minister provided the example of a gardener employed by a religious school, where the actual task of gardening would not require conformity with a particular religious belief. In contrast, the Minister argued that it would likely be acceptable for a religious school to discriminate based on religious beliefs when employing a religion teacher. 

Element 2: Beliefs inconsistent with role 

Once it has been established that conformity with certain religious beliefs is an inherent requirement of a role, the second element must be satisfied. The second element requires that a person’s religious belief or activity prevents them from meeting the inherent requirement.

Here, a person could not be discriminated against only because they possess an attribute. The Minister gave several examples of attributes which do not constitute religious beliefs, including a person being gay, a person being pregnant, a person getting a divorce, or a person being transgender.

Element 3: Reasonable and proportionate response 

Finally, in order for the discrimination to be allowed under the proposed exception, the discriminatory action must be reasonable and proportionate, given the specific role.

The Minister explains in her second reading speech:

The Minister gave several other examples of situations which would constitute discrimination under the proposed amendments. She stated that a religious school with beliefs condemning premarital sex could not expel a pregnant student simply on the basis of that student being pregnant. Furthermore, she said that:

Ultimately the Bill seeks to strike a better balance between the right to religious freedom and the right to equality. In concluding her second reading speech, the Minister said:

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Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) and explanatory materials available from TimeBase's LawOne service

Equal Opportunity Act 2010 (Vic) available from TimeBase's LawOne service