Reforms to the Equal Opportunity Act 2010 (Vic) (EOA) were passed in the Victorian parliament on 3 December 2021. Prior to the reforms, the EOA provided an exception for religious bodies and religious schools to engage in conduct which would otherwise be discriminatory under the Act.
General exception for religious bodies
The reforms add an additional limb to the existing general exception for religious bodies, which currently permits discrimination on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity that:
- conforms with the doctrines, beliefs or principles of the religion; or
- is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.
The new limb also requires that the excepted discriminatory conduct must be ‘reasonable and proportionate in the circumstances’. The new limb requires a religious body to consider the consequences that the discriminatory conduct may have for a person or the organisation, and whether that action is harsh or unjust in the circumstances.
General exception for religious educational institutions
Under the reforms, religious schools are now referred to as religious educational institutions, which extends the reach of the exception to include all educational institutions conducted in accordance with religious doctrines, beliefs or principles, not just religious schools.
The general exception for religious educational institutions also adds the third limb requiring that the excepted discriminatory conduct must also be ‘reasonable and proportionate in the circumstances’. However, the general exception for religious educational institutions is narrower than that provided for religious bodies, as it only permits discrimination on the basis of a person’s religious belief or activity. This means that religious educational institutions may not discriminate against current or prospective students based on their sexual orientation, lawful sexual activity, marital status, parental status or gender identity.
Employment exception
The reforms also introduce a narrowed employment exception, which provides that religious bodies and religious educational institutions may not discriminate against a person based on their sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity in relation to employment.
Religious bodies and religious educational institutions will only be permitted to engage in discriminatory conduct in the context of employment on the basis of a person’s religious belief or activity if:
- conformity with the religious body’s or religious educational institution’s doctrines, beliefs or principles ‘is an inherent requirement of the position’; and
- a person cannot meet those requirements because of their religious belief or activity; and
- the discriminatory conduct is ‘reasonable and proportionate in the circumstances’.
The inherent requirements of a position is determined based on the nature of the religious body or religious educational institution and the religious doctrines, beliefs or principles in accordance with which it is conducted.
The provision of goods and services by religious bodies
Religious bodies which receive funding from the Victorian government to provide goods and services (including accommodation services) will only be permitted to:
- refuse to provide goods or services;
- determine the terms on which the goods or services are provided; or
- subject a person to a detriment in connection with the provision of goods or services;
based on a person’s religious belief or activity, and not on the basis of their sexual orientation, lawful sexual activity, marital status, parental status or gender identity.
The exception will only apply where the discriminatory conduct:
- conforms with the doctrines, beliefs or principles of the religious body; or
- is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion; and
- the discrimination is reasonable and proportionate in the circumstances.
General exception for religious beliefs for individuals
Importantly, the Act has removed the religious exception for an individual to discriminate against a person on the basis of the person’s religious beliefs or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, if the discrimination is reasonably necessary for the individual to comply with the doctrines, beliefs or principles of their religion.
What has not been affected?
The reforms will not affect the right of religious bodies and religious educational institutions to discriminate in relation to:
- hiring staff who hold the same religious beliefs of the religious educational institution or religious body, if having the same religious beliefs is an inherent part of the role, such as for a religious studies teacher or school principal; or
- training, ordaining or appointing priests, ministers of religion or members of a religious order; or
- selecting or appointing people to perform functions relating to, or participating in, religious observances or practices.
Religious educational institutions can continue to limit enrolments to students of a particular religion or sex, and enforce reasonable standards of dress, appearance and behaviour. Religious bodies will be able to set and enforce reasonable conditions and standards of conduct for their employees.
The enforceability of these amendments may also be subject to the Federal government’s Religious Discrimination Bill which was introduced in Federal parliament by Prime Minister Scott Morrison. For more information on the Federal Religious Discrimination Bill, see our recent article.
How Moores can help
The majority of the reforms will come into effect six months after the Bill receives royal assent, unless proclaimed earlier, so schools and organisations have some time to prepare. If you’re not sure whether your service arrangements, enrolment or employment practices are consistent with the reforms, please contact us.