Two Bills currently before the Victorian Parliament are directly related to religious schools, including members of Independent Schools Victoria (ISV).
The Bills highlight the complexity of issues surrounding human rights – how one person’s rights might conflict with another’s, how rights have limits, and how none is absolute.
Because of this complexity, it’s worth considering whether the Bills are the best way of achieving their stated aims – to protect the rights of those who work and study in religious schools.
One Bill, introduced by the Government, would amend the Equal Opportunity Act 2010 to limit exemptions for religious schools in hiring employees. It seeks to do this by reinstating the ‘inherent requirements test’ for schools that want to rely on a religious defence to discriminate in employment.
It would mean that a school could insist a staff member conform to its religious doctrines, beliefs and principles, when this is an ‘inherent requirement’ of their job. So, the argument goes, the requirement might apply to a religious instruction teacher, but not to a gardener or a cleaner.
A separate Bill, introduced by the Greens, would insert a new section in the Act so that religious schools can’t discriminate against students on the basis of their sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.
It goes without saying that school staff and students are entitled to work and study in an environment free of discrimination and other unfair treatment.
At the same time, ISV is committed to the principles underpinning Independent education. These include the right of parents to seek to educate their children in schools that match their values and religious beliefs, their expectations and the individual needs of their children.
This is where the Government’s Bill risks bringing into conflict two fundamental human rights – the right to freedom of religion; and the right of individuals not to suffer discrimination.
Both of these rights are important and should be protected. That means there’s a need to seek a fair and workable balance in any laws designed to ensure equal opportunity and prevent discrimination.
The existing Act seeks to achieve this balance. Religious schools currently do not have a blanket right to discriminate in employment. Instead, a school can discriminate only if it is ‘reasonably necessary’ to protect its religious sensitivities. Unless a school can prove its actions are reasonable and necessary, employees are already protected.
Given the current qualified right to discriminate, it’s fair to ask whether there is a demonstrated need to change the law, based on evidence that religious school staff face unreasonable and unnecessary discrimination.
So far, no evidence has been presented to prove that this discrimination takes place to such an extent that it requires a change in the law.
The Act already defines discrimination very broadly. It includes direct and indirect discrimination, and includes acting and omitting to act. The motive and intentions of the person allegedly discriminating are not relevant, and the burden of proof rests with the defendant to show that their action was not discriminatory. The amendment would make it even more wide-ranging.
The Bill states that ‘the nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement’ of a particular position.
Ultimately, this will have to be determined by the Victorian Civil and Administrative Tribunal (VCAT) on a case-by-case basis.
Given the uncertainty and ambiguity as to what defines an inherent requirement of a position, the categories of employees covered by the requirement, and the fact the tribunal will have to make an assessment of religious beliefs, schools face the risk of becoming engaged in protracted, expensive and unpredictable court actions.
In raising these concerns, I’m not advocating that freedom of religion should have absolute primacy over other freedoms and rights. Instead, I’m calling for an appropriate balance. I’m not convinced that changing the law is necessarily the best way to achieve this balance.
Similar issues and principles apply to the Bill introduced by the Greens to provide that religious schools can not discriminate against students on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.
Our Member Schools are obliged by law and committed as part of their duty of care to provide respectful, safe and inclusive school environments for all students, in schools that are free of discrimination, harassment, bullying, vilification, victimisation and otherwise unlawful and unacceptable behaviour.
But as with the Government’s Bill, the Greens’ amendment implies that the sort of discrimination which it seeks to outlaw currently takes place in religious schools, and that legislative change is the best or the only way to deal with it. Again, no evidence has been presented to prove that this is the case.
Dealing with issues of adolescent sexuality and gender identity is complex for students, parents, teachers and school principals, requiring a sensitive, sympathetic and sophisticated response. Certainly modern schools have a greater awareness of these issues and are better able to respond to them in a way that meets the needs of individual students.
Issues raised by both these Bills relate to sensitive and complex matters, requiring informed and sympathetic judgement. These are issues that might not be easily dealt with by legislation or the ruling of a legal tribunal.
Photo of the Victorian Parliament House, by Hartmann, Carl Reinhold, courtesy of the State Library of Victoria, slv.vic.gov.au