By the mid to late 20th century, increased diversity and the horrors of state-sanctioned religious and racial hatred led Australia to exempt religious institutions from more secular laws than taxation and property laws. The rise of anti-discrimination laws in the 1970s gave them immunity from the duty not to discriminate against members of vulnerable groups.
In Victoria the Equal Opportunity Act exemptions are under review generally; amendments proposed to the religious ones have caused a predictable opposition.
The exemption from the duty to discriminate was meant to protect (initially) individual religious people's human right to believe, worship, demonstrate and promulgate their faith. The Victorian Discussion Paper acknowledges that state's Charter of Human Rights and Responsibilities requires finding a balance between the individual right to freedom of thought, conscience religion and belief, and the right of all human beings not to be subjected to discrimination on any ground at all.
The Equal Opportunity Act allows religious and quasi-religious groups and individuals to 'discriminate' lawfully. The Paper proposes to remove the blanket exemption for 'religious' activities which appear to be really secular, leaving intact total exemptions for 'core' or intrinsic religious practice, such as appointing persons to be involved in religious ceremonies and responsibilities — ministers/priests, preachers and ceremonial participants.
Not so, however, for exemptions protecting Church-established schools. Section 75 (3) of the Act, first passed in 1977, allows religious institutions to discriminate (on any ground) in employing their staff if the school is directly under, 'a body established for religious purposes'.
The Discussion Paper suggests limiting this exemption, together with the 1994 amendment in Section 76, which extended the same broad exemption to schools established 'to be conducted in accordance with religious beliefs or principles', but not directed or governed by a religious institution.
It's worth mentioning that this amendment came after an intelligent, well-behaved year 12 student successfully complained of sex discrimination because he was excluded from one of these 'para-religious' schools for wearing a neat haircut no longer than an average female student's. The Supreme Court ruled against the immunity claim of the publicly funded, private school that was not, but wanted to appear to be, Anglican.
Religious bodies argue that limiting blanket exemptions will destroy religious freedoms. Actually, many of 'their' activities are now run by separately incorporated entities, governed and managed like any business, publicly funded to provide services subject to rigorous contractual obligations that don't include 'God'.
Both sorts of organisations have been able to refuse to employ or dismiss any staff for an otherwise discriminatory reason, such as living in de facto relationship, out-of-wedlock pregnancy, sexual orientation, or unacceptable marital (i.e. divorcee) status.
This is still defended on the basis that any service can be a religious vocation and that a 'religious environment' requires certain pureties of everyone in employment. With respect, it is difficult to see the relevance of the beliefs or lifestyles of, say, a cleaner, gardener or clerk, in an independent, para-religious school.
The paper suggests broad exemptions for 'core' (that is, in-house) religious functions and a limited one for extended or 'non-core' activities, such as service-provision, which the organisation should have to prove is of an 'inherent religious nature'.
It's suggested that provision of services to the public is not 'core' to the observance of religion. But this won't work. Most major religions require believers to act out their faith in daily life: Christians and Jews alike believe that God requires them to 'act justly, love mercy, and walk humbly with your God'. A believer's spiritual and temporal life should be indivisible.
But should that entitle that individual to disobey a secular law not to discriminate? And what is it about the 'cold steel' of proving the 'reasonableness' of proposed discrimination in 'para-religious' institutions that causes offense?
One great leader said, 'Render unto Caesar that which is Caesar's, and unto God that which is God's'. If the activities are 'inherently religious' surely it would be easy to provide the evidence that religious values and faith drive the services rather than meeting a contractual arrangement.
After all, it was the same leader who bantered with a Samaritan womanl, respected and placed women among his disciples, socialised with 'sinners and publicans' some of whom became his apostles, welcomed children, wept over the dead, and embraced and healed society's lepers and other outcasts, without discrimination.
Distilled from the paper Religious freedom and secular society by Moira Rayner. Futher reading: Freedom of religion important for Catholic social services, by Denis Fitzgerald, Executive Director of Catholic Social Services Victoria.
Moira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.