'Inherent requirements' test will undermine, not strengthen, pluralistic society

Proposed amendment to Equal Opportunity Act could create social uniformity, not harmony, say critics

By Mark Sneddon and Pete Mulherin

October 20 2016The distinction between faith-based independent schools and government schools in matters of religious conviction and conscience is being undermined by the proposed Equal Opportunity (Religious Exceptions) Bill introduced by the Andrews government in Victoria. The Bill will override the deeply held wishes of many parents for their children to be educated in the tenets of a particular faith, as well as in an environment that encourages and models a distinct way to live. Similarly, religious organisations other than schools, from charities to churches, will be prohibited from applying a test of conformity with the group’s faith in many employment decisions. Seeking to compel cultural uniformity in the name of addressing discrimination the Bill will see the reintroduction of an:

‘[I]nherent requirements test [which] will limit the ability of a religious body or school to rely on a religious defence to discriminate in the area of employment because of a person’s sex, sexual orientation, gender identity, marital status or differing religious beliefs.’

Put simply, the Bill disallows faith-based organisations from refusing to hire an individual if their beliefs, sexual choices or lifestyle are contrary to the organisation's religious doctrine, unless the State finds that conformity with religious doctrine and practice is inherent to the performance of the role. It falls to the State, therefore, to determine whether a Jewish school can legally refuse to hire a Buddhist maths teacher, a Christian school a librarian who promotes atheism, abortion and polyamory, or an Anglican church a proselytising Muslim groundsman. The crux of the matter is discrimination. What does the word mean? Is it ever permissible? Should Christian schools and churches discriminate?

Understanding discrimination

A catch-all indictment, labelling an act as discriminatory, immediately triggers an emotional response as the perceived injustice is exposed. This reaction, however well-intentioned, is misguided: it often results from a poor understanding of discrimination, and reflects the misappropriation of the term, especially by the media wherein discrimination invariably carries strongly negative connotations. At its most basic, however, discrimination merely means to treat differently. People discriminate all the time, usually based on taste and conscience: voting for one candidate over another, following Jesus not Buddha, worshipping as a Catholic not a Baptist, employing the most intelligent candidate for a job over others, and so on. By demystifying the word, we can then get past the emotion that muddies the discrimination-debate water, to consider some issues raised by the Andrews government’s Bill.

Objections to the Bill

Several issues with the “inherent requirements test” warrant consideration. Firstly, the test challenges the freedom of citizens to form and participate in voluntary associations. These associations typically represent people who share ethnicity, language, culture, sports, politics, or religious values. Participation or membership in these associations usually requires that individuals are at least sympathetic to the distinctive features or values of the association. A failure to do so can result in the group discriminating against those who do not fit its membership conditions. In most cases, this differentiation in treatment is unremarkable. We do not, for instance, insist that outspoken climate change deniers be employed to hand out “how to vote” cards for the Greens. Nor do we feel they have been unfairly discriminated against when they are barred membership from the party after singing the praises of the coal industry.

Specifically targeting discrimination by religious organisation, the Bill limits the freedom of association — and by extension freedoms of conscience and religion — by effectively considering some religious beliefs inappropriate. This is despite the fact that international human rights law explicitly protects the rights of parents to choose religious education for their children in conformity with their own convictions (ICCPR article 18(4)). Likewise, the UN Declaration on the Elimination of All Forms of Intolerant and of Discrimination Based on Religion or Belief 5(2) states: “Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his or her parents.”

Secondly, the motivation for the Bill is revealed by Attorney General Martin Pakula: “When the former Coalition Government scrapped the inherent requirements test in 2011, they left many in Victoria’s LGBTI communities vulnerable to discrimination in the job market.” This is a legitimate concern and the claim needs to be taken seriously. Apart from the reality that the job market is inherently competitive — and thus discriminatory — however, there is no reason to believe that members of the LGBTI community would be unable to find a job elsewhere were they to be refused employment at a religious organisation. Individuals with non-conforming views to a religious school, for example, would be free to apply at all government schools, or any independent schools which do not require staff to conform with their views on religion, personal conduct, or sexual activity.

Furthermore, while the Attorney General uses the example of the LGBTI community as a group experiencing discrimination, it is important to remember that there are many others who could also be refused employment. They might include atheists, agnostics, pro-choicers, Muslims, Jews, Christians, Buddhists, and so on, depending on the religious organisation in which they are seeking employment. Thus focusing exclusively on the LGBTI community is a misleading way of gaining support for the Bill; it will affect a greater number of non-LGBTI citizens than members of that community. A Jewish, Muslim, atheist or agnostic teacher, when refused employment at a Catholic school based on the applicant’s non-compliance with the views of the organisation, can go elsewhere to find work. The organisation cannot: its very purpose is to promote a distinct ethos based on religious conviction and to represent the wishes and views of students and parents.

This brings us to the third criticism: the Bill itself is unfairly discriminatory. By singling out the practices of religious organisations, but leaving exceptions in Victoria’s Equal Opportunity Act for other groups like political parties intact, the Bill discriminates against religious organisations, and by extension the individuals they represent. As it currently stands, the law allows religious groups to:

‘[D]iscriminate on the basis of a person’s religious belief or activity, sex, sexual orientation … where the discrimination conforms to the doctrines, beliefs or principles of the religion.

The Act also allows political groups, for instance, to refuse to hire those who do not conform with their views. Similarly, a LGBTI empowerment club may legally discriminate against a heterosexual person by not accepting them as a member, or a Greek men’s, seniors’ club may disallow a 30-year old Chinese woman from being club president. The reasoning behind this legal discrimination is that by being selective, these organisations are protecting their distinctive views, values, culture, ethnicity, or politics. Their discrimination, therefore, is in fact enabling greater societal diversity by defending the unique views of its members. So why then are the actions of religious organisations to protect their values different? Why legislate against religious groups for their discrimination and yet leave non-religious groups untouched?

Despite praising multiculturalism and diversity, proponents of the Bill undermine pluralistic society by suggesting that some diversity — in this case religious — is inappropriate. Aiming to foster social harmony, the reintroduction of the “inherent requirements test” will succeed only in creating social uniformity. Made up of numerous ethnicities, cultures, and religions, a live-and-let-live attitude is vital for preserving harmony in society and the “inherent requirements test” will not encourage Victorians to get along with each other. Deep differences of morality and religion will not be resolved by legislating one view to supremacy at the expense of another. True tolerance, rather, in this context means accepting that there are diverse views, defending each other’s right to live according to them, and committing to respectful communication and a civil public dialogue.

Mark Sneddon is the Executive Director of the Institute for Civil Society (ICS) and formerly a legal academic and senior government official. Pete Mulherin is a PhD candidate in international relations and a Research Officer at ICS.

The Institute for Civil Society is a new think tank which:

1. Promotes recognition and respect for the institutions of civil society which sit between the individual and the State such as clubs and associations, schools, religious bodies, charities and NGOs.

2. Promotes recognition and protection of traditional rights and freedoms such as freedom of association, freedom of speech and freedom of conscience and a sensible and civil discussion about how to balance competing rights and freedoms.

For more information on the Institute for Civil Society, please visit www.i4cs.com.au 

A version of this article was published on the ABC Religion and Ethics website on 22 September, 2016.