The Victorian Parliament is conducting a review of exemptions to Victoria’s Equal Opportunity law. An Options Paper for changing the law has been produced. This review arises out of the introduction of the Victorian human Rights and Responsibilities Charter in 2006. As such it offers an important practical test of the impact of human rights laws.

Human rights can conflict with each other. If one right is to be fully granted, another may need to be limited. For example the right to privacy can impinge upon the right of a community to live in safety, and the right to equal opportunity in employment can conflict with the need of a faith community to employ a leader who shares their beliefs.

These tensions can be mediated by legislation, in a process which has been called ‘balancing’ of rights. For example, the exemptions for religious groups in Equal Opportunity legislation mean that religious freedom rights can overrule equal opportunity rights, under specific circumstances. This allows religious groups to employ staff using a faith test.

The balancing process can result in a ‘hierarchy’ of rights, in which some rights trump other rights, depending upon the circumstances. Up until now, religious rights, through the exemptions system, have tended to rank high in the hierarchy of rights. However, there is growing pressure from secularists to downgrade this status. In other words, there is a demand for religious freedom to be limited, and equality of opportunity to be enhanced.

The argument to downgrade religious rights is essentially twofold. There is a view that religious groups have resorted to special pleading to avoid their human rights responsibilities and this now needs to be corrected. Furthermore, since religion is essentially a private matter—or so it is claimed—full religious freedom should be granted only to those functions which are thought to be ‘internal’ to the religion, such as worship.

For example, it is claimed by secularists that when a church offers a public service, such as a playgroup, a hospice, a counselling centre, or an adoption agency, then religious considerations should give way to other more ‘public’ rights. For example, a parish church might not be allowed to insist on having a Christian playgroup coordinator, as playgroups are—it could be claimed—not a core ‘internal’ function of the Christian religion. A church might also be required to take religious slogans off the walls of the playgroup space, because this would discriminate against non-Christians accessing the service.

The pressure to downgrade religious rights will be felt most by ‘public authorities’ (defined in the Victorian Charter). These are basically bodies providing a service to the public, and especially those in receipt of government funds to meet what is regarded as a responsibility of the state. (At present religious schools are not considered to be public authorities, but this could change.)

These developments are significant, and the impact of changes could be far-reaching. In the UK and parts of the USA the Catholic Church has moved out of adoption services altogether, because submitting to equal opportunity regulations for adoption, including the requirement to adopt out to same-sex couples, would have violated their conscience.

In a worst-case scenario, church agencies might have to withdraw from providing certain services, or else surrender their Christian character to stay in the sector.

Whether or not an agency comes under the direct control of a religious body could be a crucial factor. For example, one of the options before the Victorian parliament is to award a higher level of religious exemptions to schools which are under the direct control of a religious body. A parish primary school might be able to insist on its Christian character in employing staff, but an independent church school might not.

Also under pressure are churches and other faith groups which require employees to sign a code of conduct with conditions relating to faith or sexual ethics. You may still be permitted to ask your parish priest to believe the Creeds and adhere to the principle of no sex outside of marriage, but it could become illegal to require the same of your youth worker or receptionist. (Such is the case in the UK.)

We in Victoria are facing a very real challenge to our religious liberties. It would be an irony if human rights legislation – in the form of the Victorian Charter – creates a trigger to downgrade religious liberty.

With the support of the Greens, the Brumby Government has the numbers in both houses to limit religious freedom in Victoria. It has also now been made clear how and why this could be done. Whether the Government has the will to act, and how far it might be inclined to go, still remains to be seen.

 

The Rev Dr Mark Durie is an Anglican minister and writer. He is the Vicar of Caulfield (Vic), and has served as a member of a General Synod taskforce on Human Rights and Religious Liberty. See his blog at www.smac.org.au