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“The title of this book, unChristian, reflects outsiders’ most common reaction to the faith: they think Christians no longer represent what Jesus had in mind, that Christianity in our society is not what it was meant to be.”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