Part 2: Religious exemptions: the state of play

This is Part 2 in a series regarding religious freedom and anti-discrimination law. To read Part 1 in this series, ‘Anti-discrimination law and religious organisations’, click here.

The relationship between religious freedom and anti-discrimination law is highly topical. It is a complex area that has been the subject of much political debate and some judicial consideration.

In our previous article ‘Anti-discrimination law and religious organisations’, we considered the anti-discrimination law that applies to religious organisations and organisations with religious affiliation.

In this article, we provide a summary of the state of play of the law in Victoria, with specific regard to the Equal Opportunity Act 2010 (Vic) (‘The Act’) as follows:

Religious organisations

The Act provides churches, synagogues, mosques and temples with broad exemption from the anti-discrimination provisions, which is not surprising given that any society that values religious freedom must, as a minimum, allow religious organisations to carry out religious practices in accordance with their own teachings and principles.

Religious schools

The freedom given to schools is also broad, allowing religious schools freedom in deciding who to hire and who to admit as students. Prior to 2011, there was an inherent requirement test in the legislation so that the exemption, in relation to employment, only related to employees who fulfilled a task that inherently required adherence with the organisation’s religious beliefs. This test was ambiguous and Parliament removed the test in 2011.

In 2016, the government attempted to reinstate the test but this was narrowly defeated in the Legislative Council. The proposed amendment did not provide guidance on what roles inherently require adherence with an organisation’s religious beliefs, which would have left the question to be determined by the courts. This remains an area to watch.

Religious accommodation providers and other organisations

On the other hand, organisations such as religious accommodation providers, hospitals and charities may not be exempt from the anti-discrimination provisions of the Act. This is illustrated in the landmark 2014 decision of the Court of Appeal of the Victorian Supreme Court in Christian Youth Camps Limited v Cobaw Community Health Services Limited. In this case, a Christian provider of accommodation services to the general public was found to breach the Act when it refused to hire its facilities to a group running a camp for same-sex attracted youth.

The takeaway from this case is that organisations (other than schools) with religious affiliation but offering services to the general public (and so, in the case of accommodation providers, not falling within the section 60 exemption) generally will not be able to discriminate on the basis of their religious beliefs when it comes to the provision of services to the general public.

Discrimination against another individual on the basis of religious beliefs

On the face of it, the exemption for individuals in section 84 may seem quite broad. However, a similar provision in the pre-2010 Equal Opportunity Act was interpreted narrowly by the Court of Appeal in Christian Youth Camps Limited.

In this case, the Court held that an individual is only free from the anti-discrimination provisions of the Act if the principles of their religion compel them to act in a particular way. The Court did not allow for religious believers to make prudential judgements informed (but not dictated) by their religious beliefs.

The individual employee in Christian Youth Camps Limited who refused the booking, the Court said, could not rely on this exemption because, whilst his religion prohibited him personally from engaging in homosexual activity, it was not a tenet of his Christian faith that he not provide accommodation services to people who did not share his own moral convictions.

There is no doubt that the individual employee refused to take the booking because of his religious beliefs. However, since Christian teaching gives Christians freedom to make their own judgement about how they relate to people who do not share their beliefs, the Court said the exemption did not apply.

Given that applying the principles of a religion to a particular scenario will generally involve some degree of prudential judgement, it is difficult to see this exemption applying in almost all scenarios where religious believers are likely to find themselves in breach of discrimination law.

Religious freedom and anti-discrimination – a balancing act?

Living in a multicultural society where there is a great diversity of people, cultures, religions and beliefs requires everyone to be able to cooperate with those who are different to themselves.

In recent years, the framework in which legislators and the courts have generally approached these issues is to see the right to religious freedom and the right not to be discriminated against as competing rights, which require a balance to be struck between the two.

Based on this approach, the trend is to allow for freedom of conscience for religious people and organisations when acting privately or as part of a religious community, however, requires they put aside concerns of conscience when providing services to the general public. In a sense, society’s multiculturalism is preserved by establishing a monocultural public square.

There is no easy answer to the question of how to best protect both religious freedom and to prevent discrimination in society. Without going into detail concerning the competing philosophical visions on offer, perhaps a better approach to the ‘competing rights’ approach would be to recognise that a multicultural society does not require a monocultural public square. Diversity in public life should be something that a multicultural society should be able to accommodate.

One thing is certain – this is an area that promises to be a significant point of discussion and debate for some time to come, and is a space that organisations with religious commitments will need to watch carefully.

In Part 3 of this series, ‘Practical tips for avoiding discrimination claims’, we provide some practical tips for complying with anti-discrimination law and avoiding discrimination claims.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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