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Victorian Government Proposes Laws that Strip Parents of Fundamental Religious Freedom Rights
The Victorian government is proposing to remove religious freedom protections from the State’s equal opportunity laws, endangering the religious freedom rights of Christian parents and independent schools. Protections that ensure Christian parents can educate their children according to their faith, and that protect the hiring decisions of religious schools are set out in the Equal Opportunity Act 2010 (VIC). If the government follows through with its proposed changes to these protections, religious schools will be unable to make hiring decisions that preserve the Christian ethos and mission of the school. Christian schools in Victoria will be forced to align their hiring policies with the requirements of a secular state, or cease to exist.
Attorney-General Jaclyn Symes has committed to removing protections for religious schools, maintaining that it will give LGBTQ Victorians rights that they have been denied. The threatened balancing provisions protect religious schools’ capacity to promote their ethos by ensuring that they can decline employment to individuals who do not affirm or support the doctrines, tenets and beliefs of the school.
Australia is a signatory to the International Covenant on Civil and Political Rights. This covenant treats the fundamental rights of parents seriously and sets out in article 18(4) the commitment under international law to ensure the rights of parents to provide their children with a religious and moral education that conforms to their own convictions.
The Australian government has not yet committed to protecting these rights under domestic Australian law in accordance with the ICCPR. One of the few places that these rights are protected is in balancing provisions like sections 81-83 of the EOA. These provisions prevent the steamrolling of religious freedom rights by other rights protected by the legislation and make sure that religious schools and organisations can act in accordance with their beliefs without being subjected to anti-discrimination claims. Section 83, for example, allows a Jewish school to exclusively hire employees who are practicing members of the Jewish faith and to refuse hire to someone who doesn’t fall into this category.
Protecting a school’s rights in this way is essential for ensuring that parents can send their children to a school that guarantees every staff member is committed to the religious and moral formation of a student’s character, recognising that teachers are not merely neutral dispensers of information but function as mentors and role models for the children under their care.
The Attorney General and the Victorian Labor government moving to severely limit the protections in the Act is out of step with international law and Australia’s commitment to protect the rights of parents and religious communities.
The proposed changes to the law will:
Impose an “inherent requirement rule. This rule will restrict the right of any religious school to hire staff who sincerely believe and practice their faith except in very narrow circumstances where the belief is considered an “inherent requirement” of the role.
By the Victorian government’s determination of which roles in a religious school are and are not affected by the religious beliefs of the employee, secular courts and tribunals will be empowered to define and determine the limits of religious beliefs and theology. It is a well established legal principle that courts are not competent to decide theological questions. In the famous constitutional case of Church of the New Faith v Commissioner of Pay-Roll Tax the High Court said that:
“What man feels constrained to do or to abstain from doing because of his faith in the supernatural is prima facie within the area of legal immunity, for his freedom to believe would be impaired by restriction upon conduct in which he engages in giving effect to that belief. The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself”
Limit protections so that the only ground on which a school can insist that an employee share their faith is if they hold a different religious belief. Any other personal attribute like gender identity or marriage status that does not line up with the school’s religious ethos will not be able to be declined.
This means that a traditional Islamic school wouldn’t be able to refuse employment to a religious studies teacher even if they were living with their girlfriend outside of marriage, contrary to Islamic teaching.
Religious schools provide the schooling environment that Australian families want and need to be able to bring up their children in accordance with their convictions. These families are forced to abandon State schools due to the demonstrated and incompatible ideological commitments of those schools. Now they face further obstacles in the form of government interference in the running of private religious institutions.
The Victorian government is eliminating the essential difference between religious and State schools by removing religious protections and imposing a uniformly secular understanding of education on all schools. If this change is implemented, it is difficult to see what options will remain for religious parents to allow them to raise their children according to an educational philosophy that isn’t determined by secular politicians and judges.
It is illogical to suggest that religious schools will be able to deliver the kind of unique faith-based education that parents desire when they are forced to employ individuals who cannot and will not affirm the religious beliefs of the school. In the same way the goals and mission of a church would be hopelessly frustrated and compromised if required to hire employees or appoint ministers who did not affirm the religious beliefs of that church.
Leaders in Christian education have made plain that education is so much more than merely teaching curriculum content. Community relationships and shared beliefs are a vital part of any educational process. Christian schools don’t prioritise hiring Christians to avoid hiring or interacting with non-Christians. Their motive is to achieve their missional purpose to create an educational environment where Christian morals and virtues are modelled by staff to encourage the formation of Christian character.
No one would suggest that the Greens party should be forced to add a fossil fuels advocate to a committee on energy policy. Nor would anyone think it reasonable to force a veterans club to admit a strident anti-war activist into their ranks. But when it comes to religious schools, the government considers it appropriate to apply a different standard, and it has yet to provide any valid reason why.
The majority of Australians aren’t calling for these changes. A recent poll commissioned by the Australian Christian Lobby and conducted by PureProfile in September has shown that nearly two-thirds of Australians support protections for religious institutions. 65% of respondents agree with protections for people of faith. No government who ignores the will of their electorate and their country’s international human rights obligations can be said to be acting in a lawful, responsible, or democratic fashion.
These proposed changes are out of step with the expectations of all Australians. They show a lack of understanding of the value and need for independent religious schools. Victorian parents want the ability to choose what is best for their child and their family. If the Victorian government is to preserve these fundamental rights, then it must continue to protect the independence of religious schools to hire and to teach in accordance with their convictions.
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