The State as Hire Authority

church and stateThe difference between religious and government schools in matters of faith-based conviction and conscience is being blurred by the Equal Opportunity (Religious Exceptions) Bill recently introduced by the Andrews government in the Victorian Parliament. The amendment will override the principles and wishes of many parents for their children to be educated in the tenets of a particular faith, as well as in an environment that encourages and models a distinct way to live.

Also under the spotlight, religious organisations other than schools — from soup kitchens and aged care to aid organisations and churches — will be banned from using religious beliefs as a valid prerequisite for many jobs they seek to fill. While attempting to confront discrimination, but in effect compelling social uniformity, the bill will see the reintroduction of an ‘Inherent requirements test [which] will limit the ability of a religious body or school to rely on a religious defence to discriminate in the area of employment because of a person’s sex, sexual orientation, gender identity, marital status or differing religious beliefs.’

In other words, the Bill prohibits religious organisations from refusing to hire an individual if their beliefs, sexual choices or lifestyle are contrary to the organisation’s religious doctrine, unless the State finds that conformity with religious doctrine and practice is inherent to the performance of the role. It falls to the state, therefore, to determine whether a Jewish school can legally refuse to hire a Buddhist maths teacher, a Christian school a librarian who promotes atheism, abortion and polyamory, or an Anglican church a proselytising Muslim groundsman. The crux of the matter is discrimination. What does the word mean? Is it ever permissible? Should Christian schools and churches discriminate?

A catch-all indictment labelling an act as discriminatory immediately triggers an emotional response as the perceived injustice is exposed. This reaction, however well intentioned, is misguided: it often results from a poor understanding of discrimination and reflects the misappropriation of the term, especially by the media wherein “discrimination” invariably carries strongly negative connotations. At its most basic, however, discrimination merely means ‘to treat differently’. People discriminate all the time, usually based on taste and conscience: voting for one candidate over another, following Jesus not Buddha, worshipping as a Catholic not a Baptist, employing the most intelligent candidate for a job over others, and so on. By demystifying the word, we can then get past the emotion that muddies the discrimination-debate water, to consider some issues raised by the Andrews government’s bill.

Several problems with the ‘inherent requirements test’ need studying. Firstly, the test challenges the freedom of citizens to form and participate in voluntary associations. These associations typically represent people who share ethnicity, language, culture, sports, politics, or religious values. Participation or membership in these associations usually requires that individuals are at least sympathetic to the distinctive features or values of the association. A failure to do so can result in the group discriminating against those who do not fit its membership conditions. In most cases, this differentiation in treatment is unremarkable. We do not, for instance, insist that outspoken climate change deniers be employed to hand out ‘how to vote’ cards for the Greens. Nor do we feel they have been unfairly discriminated against when they are barred membership from the party after singing the praises of the coal industry.

Specifically targeting discrimination by religious organisation, the Bill limits the freedom of association—and by extension freedoms of conscience and religion—by effectively considering some religious beliefs inappropriate. This is despite the fact that international human rights law explicitly protects the rights of parents to choose religious education for their children in conformity with their own convictions (ICCPR article 18(4)). Likewise, the UN Declaration on the Elimination of All Forms of Intolerant and of Discrimination Based on Religion or Belief 5(2) states: ‘Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his or her parents.’

Secondly, the motivation for the Bill is revealed by Attorney General Martin Pakula: ‘When the former Coalition Government scrapped the inherent requirements test in 2011, they left many in Victoria’s LGBTI communities vulnerable to discrimination in the job market.’ This is a legitimate concern and the claim needs to be taken seriously. Apart from the reality that the job market is inherently competitive—and thus discriminatory—however, there is no reason to believe that members of the LGBTI community would be unable to find a job elsewhere were they to be refused employment at a religious organisation. Individuals with non-conforming views to a religious school, for example, would be free to apply at all government schools, or any independent schools which do not require staff to conform with their views on religion, personal conduct, or sexual activity.

Furthermore, while the Attorney General uses the example of the LGBTI community as a group experiencing discrimination, it is important to remember that there are many others who could also be refused employment. They might include atheists, agnostics, pro-choicers, Muslims, Jews, Christians, Buddhists, and so on, depending on the religious organisation in which they are seeking employment. Thus focusing exclusively on the LGBTI community is a misleading way of gaining support for the Bill; it will affect a greater number of non-LGBTI citizens than members of that community. A Jewish, Muslim, atheist or agnostic teacher, when refused employment at a Catholic school based on the applicant’s non-compliance with the views of the organisation can go elsewhere to find work. The organisation cannot: its very purpose is to promote a distinct ethos based on religious conviction and to represent the wishes and views of students and parents.

This brings us to the third criticism: the Bill itself is unfairly discriminatory. By singling out the practices of religious organisations, but leaving exceptions in Victoria’s Equal Opportunity Act for other groups like political parties intact, the Bill discriminates against religious organisations, and by extension the individuals they represent. As it currently stands, the law allows religious groups to:

‘[D]iscriminate on the basis of a person’s religious belief or activity, sex, sexual orientation … where the discrimination conforms to the doctrines, beliefs or principles of the religion.’

The Act also allows political groups, for instance, to refuse to hire those who do not conform with their views. Similarly, a LGBTI empowerment club may legally discriminate against a heterosexual person by not accepting them as a member, or a Greek men’s, senior’s club may disallow a 30-year old Chinese woman. The reasoning behind this legal discrimination is that, by being selective, these organisations are protecting their distinctive views, values, culture, ethnicity, or politics. Their discrimination, therefore, is in fact enabling greater societal diversity by defending the unique views of its members. So why then are the actions of religious organisations to protect their values different? Why legislate against religious groups for their discrimination and yet leave non-religious groups untouched?

Despite praising multiculturalism and diversity, proponents of the bill undermine pluralistic society by suggesting that some diversity—in this case religious—is inappropriate. Aiming to foster social harmony, the reintroduction of the ‘inherent requirements test’ will succeed only in creating social uniformity. Made up of numerous ethnicities, cultures, and religions, a live-and-let-live attitude is vital for preserving harmony in society and the ‘inherent requirements test’ will not encourage Victorians to get along with each other. Deep differences of morality and religion will not be resolved by legislating one view to supremacy at the expense of another. True tolerance, rather, in this context means accepting that there are diverse views, defending each other’s right to live according to them, and committing to respectful communication and a civil public dialogue.

Mark Sneddon is the Executive Director of the Institute for Civil Society (ICS) and formerly a legal academic and senior government official. Pete Mulherin is a PhD candidate in international relations and a Research Officer at ICS.

10 thoughts on “The State as Hire Authority

  • Lawrie Ayres says:

    The Andrews government spends an inordinate amount of it’s time sucking up to the two percent of non-hetero members of society. They should expect that two percent to vote for them at the next election. Hopefully the ninety eight percent Andrews has alienated will vote for someone else. Should the Libs ever grow a spine and call out Andrews and his socialistic programmes they should romp in. In the meantime it takes little imagination to figure Andrews real agenda; the destruction of the family unit. First he has attempted to drive a wedge between parents and children with Safe Schools and now he is attacking their beliefs and their right to chose who best would promote those beliefs.

    It would be a poor HR person who told a non-believer they couldn’t have a particular job. How could someone complain if a better qualified person got the job and if one of the requirements was a certain belief. This is madness but will the herd stand and be counted or simply let another freedom be taken from them. They have already lost the ability to speak freely. What next? The ability to hire whom they want.

  • Warty says:

    It seems clear to me that neo Marxists ultimately intend the unraveling of all the important institutions in our society, though this legislation is specifically aimed at religious institutions. Many Quadrant readers would no doubt disagree (going by some of their past comments) but the church is perhaps the single most important institution, partly due to its formative role in the evolution of the Western Civilization, but also the strong moral guidance it leant to countless generations of men and women in that civilization.
    It seems the cloudiness with regard to what is right and what is wrong, indeed the reversing of the polarities so that what was once regarded as right, or good is now considered wrong, even bad. The whole issue of homosexuality seems an obvious example, where once it was not only illegal, but regarded with widespread opprobrium. But in a more subtle sense, where a hundred years ago individuals were prepared to suffer restraint, discomfort, even death for the greater good of the community, yet now the individual is of paramount importance, and sentimentality appears to be valued over and above decorum. In fact, ‘decorum’ is almost disappearing from the lexicon.
    The above mentioned legislation before the Victorian parliament reminds me of the adage that contrary to all appearance, considerable growth occurs during the winter months, but it is only in the spring that we begin to see what has been happening underground. We have taken our eye off the ball and will need to work overtime to undo the hitherto unseen, yet harmful effects of the winter months.

    • Rob Brighton says:

      The individual is of paramount importance. It is exactly the opposite that Andrews and his ill-begotten ilk propose. They want to categorise everyone othering those who do not fall into one select group or another.

      Have a snoop at this video, where you will see a Canadian university lecturer calling this out for what it is. The subject is free speech but he talks about what we are seeing from Andrews PC push.


      • Warty says:

        I watched your video clip through to the end, and yes it is appalling, but it also supports the proportion that it is the ‘greater good of the community’ that is under attack, by a deranged minority, and such a tiny minority that the sort of woman thing, whatever it is, was unprepared to give a figure to the number of transgender people she represents. Certainly the Professor Jordan (was it Peterson) is an individual who faces legal action, but he is speaking to the issue, not himself, and he is prepared to ‘fall on his sword’ for the issue. He is a glorious example an individual prepared to sacrifice his own well-being for the greater good viz the society that is under attack by these ideologues who are prepared to take down the underpinnings of our civilisation.

    • Jim Kapetangiannis says:

      I would have to agree with you Warty that the Church has been the singularly most important institution in the evolution of western liberal democracy. In its own growth from minority to majority, it has carried along with it all the fundamental institutions of a society advancing in civility and liberty. Even when it has been the object of derision and abuse, and even when it has slipped into error and bad behaviour, the remnant few have still infused those fundamental institutions with ethical foundations which are the very best available. Chiefly, these foundations are that we are to love others as we would love ourselves, even when those “others” are our mortal enemies. This is the only test of true moral high ground.

      So what then are the alternatives?

      One is the Marxist “figment of the imagination” – the secular utopia. In such a world, ultimately there is no need to love anyone as all the loving will be done by the state who will shower material largesse upon all. The emotion of love is completely wasted – even parental love. There certainly will be absolutely no need to love your enemies as they simply won’t exist. As expendable concatenations of soulless atoms they will have been well and truly taken care of in the evolution of the state.

      Another is the fascist utopia – see above but change flag colour.

      Another is the Islamic utopia where all submit to Allah and any dissenting voice is….well…..see above but change flag colour

      As the Church moves into it’s western old age and dare we say “dotage”, the above alternatives become very real and gain traction in hearts and minds that have become increasing inured to the milk of human kindness. You know how it is, when the light grows dim, the inky darkness will thicken….and when the salt has lost is zing, the meat will rotten.

      So as all of the above combine in their mutual hatred of the “ancient fortress” of the west and seek to put out her light, other lights will spring up elsewhere. Nothing will change about the human condition other than that the centre of gravity of liberty will shift to wherever the moral undergirding of liberty finds a home.

  • denandsel@optusnet.com.au says:

    To discriminate is to choose.
    In some circumstances there may be a valid reason for disallowing a person the chance being able to make a choice. This includes criminals in jail, or infants or even the medically diagnosed mentally insane etc. However, in almost all other circumstances adults should be free to be able to make a choice, i.e. discriminate, according to their judgement and conscience. People who are not allowed to choose for issues of employment or of any other social interaction and who are compelled to obey some dictate/law restricting choice are slaves.
    What comes next? That people will not be able to discriminate/choose at election time?

  • Rob Brighton says:

    “The usurping of the verb “to discriminate” into its strictly negative connotation has yielded cognitive biases that at best result in poor choices and at worst are suicidal in their blissful ignorance of statistical truths.”

    Quote from a Quadrant contributor, sorry I didn’t record the writer’s name at the time I added this quote to my collection.

  • gardner.peter.d says:

    Perhaps it’s a clever ruse to facilitate Christian infiltration of mosques and Koranic schools so we can find out what is being taught and preached in such places. France is avowedly more secular than Australia. How do they manage their discrimination in employment?

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