Equal Opportunity Law Revisited

This Thursday the Equal Opportunity Bill 2010 passed through the upper house of Victoria's Parliament, the Legislative Council.  It has now passed into law.  The following day I read some of the Upper House speeches with particular interest.  Members of the Legislative Council reported that they had received thousands of submissions from members of the public who were concerned about the new Bill.

The major focus of public concern has been whether Christian organizations will be able to employ like-minded people to their organizations, for example:  Can a Christian school favour Christians when filling teaching staff vacancies? Can a Christian aid agency favour Christians in senior management roles?

The issue is particularly pointed for Christian schools, because thousands of students in Victoria attend schools where up until now every member of staff has been required to adhere to religious and ethical principles as part of their employment contract.  Tens of thousands more attend schools where there has been a tradition of favouring teachers who share the religious and ethical values of the school. Since the passing of this new bill, it is unclear whether these employment arrangements have now become unsustainable.

The crux of the controversy is just a few paragraphs relating to employment, which mean that a religious organization can discriminate on any grounds at all in employing someone if

a) "conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position," and
b) the person's "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that he or she does not meet that inherent requirement."  

This means that if someone does not meet a religious test related to the position – defined in terms of 'inherent requirements – they will have no protection from discrimination. 

Something about this puzzles me greatly.  Let me explain.  If being a Catholic is an 'inherent requirement' of a position, and someone occupying the position renounces Catholicism, then the employer could discriminate against this person on the basis of their age, or physical impairment, or indeed any other attribute.  This seems unfair.  As another example, if being a Buddhist is an inherent requirement of a particular position, but parental status is not, then a Muslim single mother who happened to occupy the position could be discriminated against on the grounds of her parental status, but a Buddhist woman in the same position would have full protection from discrimination on grounds of parental status.


I expect that the Government intended something else.  They probably meant that discrimination would be allowed on the basis of the attribute which caused the person not to meet the inherent requirement of the position.  Unfortunately, this is not how the law has been written.

However the reason for the general public's sense of alarm over the law is not the issue I have just raised of clumsy drafting, but that the 'inherent requirement' test will be interpreted narrowly by our courts, and in a very secular way. 

An 'inherent requirement' of a position is a core essential component.  The concept of 'inherent requirements'  developed in relation to accommodating people with disabilities.  Someone with an impairment might need to do a task in a different way, but the important thing is whether they can do the task, not how they do it.

Disabilities are one thing.  What is really very unclear is how the concept of 'inherent requirements' will be extended to religious requirements of positions.  In the Legislative Council speeches there seemed to be confusion around this subject.  For example Labor Member, Mr Johan Scheffer, speaking in favour of the Bill, confusingly stated that:

Where a religious body or school wishes to discriminate in the employment of a person on the basis of the person’s conformity with the relevant religious doctrines or their religious belief, sexual orientation, marital status or gender, they will be required to demonstrate that the basis of the discrimination is an inherent requirement of the religion.

This is not correct.  The test is not whether the basis of the discrimination is an inherent requirement of the religion, but whether it is an inherent requirement of the position.

The problem is, no-one really knows what this will mean in practice.  I have had some interesting conversations with a lawyer friend who is confident that:

If there is clear evidence that the way in which a school or church group is conducted is genuinely informed by faith-based principles on the sanctity of marriage or some other matter, so that those values are taught by maths teachers as well as religious studies teachers,  then I don’t see why we need worry that they would be found to be unlawful if they insisted on such matters in their employees.

The multi-million dollar question here is what does 'taught' mean?  Does it mean, for example, that if a school wants to employ teachers who believe the Nicene Creed, that this will only be possible if the mathematics or chemistry teachers actually 'teach' the Nicene Creed as a formal part of the mathematics or chemistry curriculum?  If a school wishes to prefer to employ Christian teachers, must they make every teacher a religious education teacher?

I paid particularly careful attention to the statements of Mr Brian Tee, Labor party member of the Legistlative Council:

... what it demands is a degree of transparency and a degree of accountability. What it says is that if you are going to discriminate on those grounds, then that discrimination must be justified or must be in conformity with the religion, and it must be an inherent requirement of the job. So if we are going to allow a school to deny a job to a woman, to a mother, to a wife, then I think that discrimination should have been justified by reference to the nature of the job and by reference to the religious doctrine.

If you are going to deny someone a job because they are gay, if you are going to deny them that opportunity, then what the bill does is say you need to demonstrate that that decision is made in accordance with the religious doctrine; and the nature of the employment means that the person is not suitable.

Talk about having it both ways. This is quite clever.  Those who are concerned about being discriminated against – for example gay people or single mothers – will hear that this can only happen if it is justified because the nature of the employment means they are unsuitable for the work.  How attractive this sounds! On the other hand the religious employer is meant to hear that discrimination will be possible if it is justified by their religious beliefs. Again, how attractive this sounds!

The difficulty arises that people do not agree on what is justified.  Both sides will have their hopes raised by this law.  But no-one really knows whether a Muslim school will be able favour Muslims in employing its VCE mathematics or science teachers.  In the end, the courts will have to decide, and because their decision will be contingent on the particular doctrines, beliefs and principles of the school, the courts will have to decide on a case-by-case basis. 

This will not be easy.  In each case, at least three doctrinal issues will need to be resolved 

The first doctrinal issue will be to determine what is 'the religion' of the organisation.  For a Catholic body this will be straightforward, but for many Christian agencies it could be quite difficult.  One can think of a recent case involving the Wesleyan Mission in Sydney (in relation to gender identity discrimination).  At first the courts decided the religion was 'Uniting Church', but the Appelate Tribunal decided that the religion was 'Wesleyanism' [(Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 (1 October 2009].  If an evangelical Anglican parish is taken to VCAT, will the religion be 'Anglican' or 'Evangelical Anglican'?  And what about parachurch agencies, with no denominational identity.  What will 'the religion' be in these cases?  'Vanilla Christian?'

The second doctrinal issue will be what are the 'doctrines, beliefs or principles' of 'the religion' as they apply to "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity".  Again, the Catholics will do well on this one.  They have a detailed catechism which dots every i and crosses every t.  But for some 'religions' this will be a big ask.  I say - good luck to them!  A lot of people will be interested to discover from our courts' rulings what is the doctrinally correct Anglican, Baptist, Unity Church or Lutheran position on gay marriage.

The third doctrinal issue will be whether faith-related attributes are an 'inherent requirement' of the particular position.  A key question will be to what extent the religious doctrines, beliefs and principles of the organization can impinge upon the 'inherent requirements'.  Is the religious character of an organization enough to justify the claim that employees should be religious too?

I am grateful to Cameron Macaulay for drawing to my attention a case where the right of the Army to discharge an HIV positive soldier was upheld (McHugh J in X v Commonwealth [1999] HCA 63; 200 CLR 177 at [31] ff).  The ruling includes some relevant comments about the importance of context in determining inherent requirements of positions:

31.   Whether something is an "inherent requirement" of a particular employment for the purposes of the Act depends on whether it was an "essential element" of the particular employment[24]. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee[25] with the result that an employee breaches those requirements or obligations when he or she discloses confidential information[26] or reveals secret processes[27]. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment[28]. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4).

32.   Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely "so obvious that it goes without saying"[29] - which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment[30]. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties[31]. 

33.   It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.

 34.   So much was recognised by this Court in Qantas Airways Ltd v Christie[32]. Although at age 60, Mr Christie undoubtedly still had the physical ability to fly 747's, the age limit of 60 imposed by other countries on pilots in their air space meant that, if Mr Christie were to be continued to be employed by Qantas, he could only be assigned to a restricted number of routes - a situation which would cause great disruption to, and perhaps the ultimate failure of, Qantas' roster system for assigning pilots to routes. In this context, the Court held that Mr Christie was unable to carry out an inherent requirement of his position, namely, the capacity to fly to all (or at least a reasonable number) of Qantas' international destinations. I said[33]:

"It was plainly an 'inherent requirement' of the position of such a Captain that he or she should have the capacity (physically, mentally and legally) to fly B747-400 flights to any part of the world. That was an indispensable requirement of the position." 

35.   Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment. It shows that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded. Far from rejecting the use of such context, s 15(4) by referring to "past training, qualifications and experience ... and all other relevant factors", confirms that the inherent requirements of a particular employment go beyond the physical capacity to perform the employment. 

There is a paragraph in the new Bill which appears to strengthen religious organizations' ability to invoke this idea of context being part of 'inherent requirements':

(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).

However,  even if the religious nature of a body is taken into account, this is not going to ensure that religious principles will take priority in determining what is an inherent requirement.

In any case, resolving this will ultimately require a ruling on doctrine.  A relevant theological question might be:  for a Christian, is teaching mathematics an act of worship? 

I am put in mind of a recent case in the UK where the Master of the Rolls, Lord Neuberger, ruled that requiring a Christian Islington registrar, Ms Lillian Ladele, to officiate at same-sex civil partnership registrations did not in any way interfere with her 'worship' as a Christian:  "the effect on Ms Ladele of implementing the policy [of requiring her to officiate at civil partnerships] did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished." Lord Neuberger decided that Ms Ladele's Christian view of marriage was "not a core part of her religion, and Islington's requirement in no way prevented her from worshipping as she wished."

The former Archbishop of Canterbury, Lord Carey, has objected to Lord Neuberger's 'disparaging' presumption that Ms Ladele's view on marriage was 'not a core part of her religion', and has asked that Lord Neuberger, together with other judges who hold similar views, excuse themselves from further cases to do with religious liberty.  It is extraordinary that a former Archbishop of Canterbury has lost confidence in some of Britain's most senior judges: the judges believe they are giving fair and impartial rulings, but prominent British church leaders believe they are irredeemably biased against Christians.

The theological issue which Lord Neuberger was addressing is what constitutes the 'core' of religious devotion: what determines the boundary between worship and the rest of life.  For a secular person, teaching mathematics has nothing to do with religion.  However, for a religious person – and indeed for a religious organisation – all actions can be considered to be worship.  What distinguishes many relgious organisations is that they see their whole activity as a corporate act of worship, done in devotion and service to God, in accordance with the doctrines and principles of their faith.  One reason they want to employ people of faith is that they want the whole organisation to corporately serve God through its activities. The secular judges regard faith as an essentially personal and individual affair, and cannot understand this perspective because their religious worldview cannot comprehend it.

This same theological issue was emphasized in a recent submission from the Standing Committee of General Synod of the Anglican Church of Australia, entitled 'Freedom of Religion and Belief in the 21st Century' submission.  The Anglican submission responded to a proposal made in the Australian report Article 18: Freedom of Religion and Belief that:

4.1.1. A distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job should not be unlawful. Preference in employment for a person holding a particular religious or other belief will not amount to discrimination if established to be a genuine occupational qualification. 

 In response, the Anglican submission stated:

In many religious contexts (including congregations, schools, missionary organisations and other charitable organisations), R.4.1.1 is not meaningful or relevant.  In these organisations there is no distinction between those positions where religious belief is a 'genuine occupational qualification', and other positions.  The attempt to make such a distinction is not meaningful because:

i. These organizations may seek to maintain their distinctively religious mission, and avoid loss of effectiveness, by employing people throughout the organisation who adhere to the religious purposes, and hold the religious beliefs, of the organisation.

ii. For Christian organisations, all action is done 'to the glory of God'.  This makes it impossible to distinguish between specifically religious activity and other activities.

Clearly the Victorian Labor government disagrees, for it has chosen to make rely upon the 'inherent requirements' distinction, which the Anglicans had declared to be 'not meaningful or relevant'.

I believe, without a shadow of doubt, that both the Victorian Civil and Administrative Tribunal, and higher courts of appeal will have great difficulty ruling on the three doctrinal questions which must be resolved in order to apply an 'inherent requirements' test.  Despite the Victorian Government's blasé confidence that actions which are 'justified' will be protected by the law, determining what is in fact 'justified' will require complex theological rulings to be made by secular courts.

I am particularly concerned about one specific implication of the new Bill in relation to employment.

This is that the concept of 'inherent requirement' is an all-or-nothing thing.  Either an attribute is an 'inherent requirement', in which case discrimination MUST be applied – for a person with the 'wrong' attribute(s) would by definition be unable to do the job, or it is not an inherent requirement, in which case discrimination will be forbidden.

This means an organisation must always discriminate or not at all.  What will be illegal will be to prefer Christians for positions in Christian organisations.

When I was a student at a Christian high school, I observed that the principal employed a considerable number of Christians to teaching positions.  Indeed the Physics teacher, English teacher and French teacher were all ordained ministers.  Under the new Victorian Equal Opportunity Law, if the principal wanted to discriminate in favour of a Christian teacher, the only way he or she could do this would be by declaring faith to be an 'inherent requirement' of the position.  But this would make it very difficult for the school to employ non-Christians, as they would not meet this 'inherent requirement'. The idea of maintaining a balance, where some, but not all, of the teachers are Christians, would be ruled out.

This outcome seems to be an extreme one, which is intolerant of the realities of how religious organisations actually function.  It will force a kind of ghettoization of religious institutions.  In order to maintain their religious identity, they will need to be 100% religious in their staffing practices, or have no religious employment preferences at all.

Clearly religious rights cannot simply trump all other rights.  Some religious practices are illegal and should always remain so. But what the past decade of watching Victoria's attempts to regulate religious manifestations has convinced me of – first through the lamentable outcome of the Racial and Religious Tolerance Act 2001, and now through the Equal Opportunity Bill 2010 – is that the Victorian Labor Government has little clue about the problems inherent in requiring our secular tribunals and courts to rule on doctrinal issues.  There is a desire that religious bodies and individuals be more accountable, but little clue about how to do this efficiently and effectively. 

In watching all this unfold, the weak response of churches to these threats to religious harmony has been, to say the least, disappointing.

If the Equal Opportunity Bill is as bad as I believe, then possibly the very best thing that can happen now is for a series of high profile Equal Opportunity cases to be started up, making use of the new religious provisions, which pit secularist-minded complainants against religious respondents.  The doctrinal issues will prove to be controversial and divisive, even within religious communities, and the public will be divided as the cases progress through the inevitable appeal processes.  The problem of conflicting and irreconcilable presuppositions about the role of religion in life will cause the government to founder on the shoals of controversy and outrage, as both sides discover that the law has not provided the legal clarity which everyone had hoped for.

I do hope I shall be proved wrong.

Reflections on the Proposed Victorian Equal Opportunity Bill 2010

The Victorian Attorney General has put out a new Equal Opportunity Bill which is currently before the Parliament.  This follows on from extensive consultation by the Scrutiny of Acts and Regulations Committee in the second half of 2009.  There is a lot that is new in the Bill, but I am just commenting here on the changes to the religious exemptions. 

Religious exceptions in the 1995 Equal Opportunity Act gave religious groups and individuals a broad freedom to discriminate.  For example, a religious school can select a teacher on the basis of their faith, or a  congregation could reject someone for an ordained position based on their sexual orientation or 'lawful sexual activity'.

It is widely accepted that some level of religious exception is warranted, but the question is now narrow exceptions should be.  The proposed changes to the exceptions achieve a narrowing, but the question is: Have they gone too far? 

The key changes are:

1. Narrowing of areas where exceptions apply
Apart from the appointment of clerics and those involved in religious rituals – where an unlimited exception will still apply – the non-employment areas in which religious bodies can discriminate have been limited to "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity", provided that what is done conforms to the "doctrines, beliefs or principles of the religion" or is "reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion".

For example a synagogue can still choose not to hire their hall out to a Christian group, provided that this decision is in conformity with their doctrines, or is necessary to protected the religious sensibilities of their congregants.

This seems to be an inconsequential change.  The Act has retained particular areas of exceptions precisely because these are the areas where doctrinal considerations apply.  The omitted areas (such as race, disability, age or breast-feeding status) are left out precisely because they are unrelated to doctrinal distinctions:  it seems highly implausible that religious groups would have ever relied on exceptions for other areas under the old Act.

2. Introduction of an 'inherent requirements' test for employment
In the case of employment a narrower exception will apply.  With employment, what is done must additionally must meet two conditions:

"a) conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position; and

(b) the person's religious belief or activity, sex, sexual orientation, lawful sexual activity,
marital status, parental status or gender identity means that he or she does not meet that inherent requirement."

This is a  significant change.  There is a good deal of law on the issue of what is an 'inherent requirement', but I am unaware of much which has addressed faith-related considerations.

An inherent requirement of a position is a fundamental task which defines the work, and which must be carried out in order to get the job done.  This is about achieving results rather than the way of doing a job. For example someone with a disability may be able to do a job in a different way from usual: the means they use is not an inherent requirement – what is important is the outcome.

A number of employment practices of religious groups will have to be reconsidered in the light of this new law, if it is passed.  Positions where religious tests are commonly applied include:

• CEOs and senior staff of church organizations such as schools, missions and welfare agencies.
  For example many church schools include in their constitution a rule that the principal must be a communicant member of a Christian church, or adhere to particular doctrinal positions.  Such restrictions will in future have to satisfy the test that this is necessary to fulfil the 'inherent requirements' of being a principal. 
  
  As another example, World Vision requires senior staff to adhere to a doctrinal statement.  In future such a policy will need to be justified in terms of 'inherent requirements' of the specific positions.  It might be argued, for example, that the head of finance  does not need to hold or follow particular religious beliefs, as this does not impact on their ability to fulfil their core duties.

• Teachers in religious schools are a category of special interest (and likely legal action).  It will, for example, become difficult to require a maths teacher to adhere to certain religious or ethical principles.  

An inherent requirements text was one of the outcomes sought by the Victorian Independent Education Union in its submission to the Scrutiny of Acts and Regulations Committee in 2009:

"The inherent requirements of a job in a religious school should be defined by the fundamental duties that must be carried out in order to get the job done. It is submitted that the inherent requirements of a job in a religious school will vary depending on the role the employee is engaged to perform. Personal lifestyle choices relating to marriage and sexuality, it is submitted, will not be relevant factors in determining whether or not the inherent requirements of a job will be able to be performed or not.

For example, a maths teacher who is living in a de facto relationship in a Catholic school might be required to participate in school mass and prayer assembly with students and will be able to do so. In these circumstances, the maths teacher will still be able to get the inherent requirements of the job done in that he/she can teach the students maths and participate in the religious life of the school in relation to its students. It would, Victorian Independent Education Union Submission July 2009 therefore, be unlawful to refuse to deny that teacher a job simply on the grounds of his/her marital status."

In essence VIEU is saying that requiring a teacher to attend and take part in religious services could be an 'inherent requirement', but requiring them to live by religiously determined sexual ethical principles would not. 

The same could be argued in respect of personal religious beliefs:  a maths teacher could be an atheist or follow some non-Christian religion, but this, it might be argued, should not impact on their ability to fulfil the 'inherent requirements' of their position.

This could mean major changes for those Christian schools which currently require all staff members to adhere to certain religious beliefs and ethical principles.  Currently there are thousands of students who attend such schools in Victoria.

This new Bill will also raise expectations among those who have been unhappy with employment practices of religious groups.  The VIEU, in its submission, has made clear that it would interpret an 'inherent requirements' limitation in a restrictive way.  Hopes will be raised by this innovation, and this means that the issue will be tested in the courts.  A possible scenario could be a group like the VIEU taking a Catholic or independent Christian school to the Tribunal.

Another possible scenario is that the EOC could conduct an investigation of employment of teachers in religious schools.  (The new bill will give the EOC such investigative powers.)  In this scenario, must of the cost of bringing legal pressure to bear on religious schools would be born by the state, through the EOC.

Another possible scenario could be that of a teacher of another faith taking legal action against a religious school.  In 2009 the local Melbourne media publicized a case where a Muslim teacher trainee was unable to secure a placement in a Christian school because of her religion.

 The new bill does provide that:

"The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement"

However taking doctrines and beliefs into account does not guarantee that the religious consideration in question will be judged to be among the inherent requirements.

• Another significant category is that of non-'religious' appointments by local churches and other religious groups.  In the past congregations have often recruited co-religionists to such positions as administrators, receptionists, playgroup or kindergarten coordinators, finance officers or site managers.  Many congregations have employment contracts or codes of conduct which specify the doctrinal and ethical commitments expected of all church staff.  Such contracts and codes of conduct may become illegal.  They may need to be tested in the Victorian courts.  Legal action is less likely than in the area of educational employment, but the same issues will apply.

One consideration which has perhaps not been adequately covered in the preparation of this new law is the implication of the right to Freedom of Association.  The preference to employ believers by local churches or certain religious schools is a manifestation of this right.  It is striking, by way of contrast, that the exception in the new Bill for political employment does not include the stringent 'necessary requirements' test:

"27 Exception—political employment
An employer may discriminate on the basis of political belief or activity in the offering of employment to another person as a ministerial adviser, member of staff of a political party, member of the electorate staff of any person or any similar employment."

It seems that a politician will be able to employ a receptionist who is a member of their party, but a Catholic priest might not be able to employ a Catholic receptionist.

 3. Introduction of the phrase 'reasonably necessary'
At three points the new Bill introduces the terminology of 'reasonably necessary' in relation to the exceptions.  This is to make the tests more 'objective'.

In law an 'objective' test appeals to the idea of the 'reasonable person', and how he/she would act or think.  English humorist Sir A.P. Herbert wrote:

"[The reasonable person] is an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen ... [he] invariably looks where he is going, ... is careful to examine the immediate foreground before he executes a leap or bound; ... neither stargazes nor is lost in meditation when approaching trapdoors or the margins of a dock; ... never mounts a moving [bus] and does not alight from any car while the train is in motion, ... uses nothing except in moderation..., and even flogs his child in meditating only on the golden mean."

But the question to be asked is: "Can the reasonable person 'get' religious doctrines?"

In order to apply this test in courts, theological arguments will need to be put and considered.  Some might say that religion is itself unreasonable, by definition.  My hunch is that the "Australian reasonable person" is an avowed secularist, and either has little patience for religious distinctions, or is overly deferential toward them, but only because they can't understand them.  They are not someone whose opinion I would chose to rely upon in religious controversy.

We have already seen the difficulty caused by an 'objective' test in the case of The Islamic Council of Victoria vs Catch the Fire.  The Racial and Religious Tolerance Act 2001 allows exceptions if conduct is done 'reasonably and in good faith'.  In his discredited findings Judge Higgins was forced to make theological judgments in a number of contexts where an objective test was called for, and his judgment was partly derailed because of this.  Unfortunately Judge Higgins' 'reasonable person' was not very good at understanding theological arguments.

It is a great pity that the Attorney General chose not to use a "genuineness" test instead of a "reasonableness" test.  This could have allowed the genuineness and relevance of a conviction to be tested, without subjecting religious mentalities to the test of essentially secular concepts of reasonableness, as worked out in the mind and worldview of the 'reasonable person'.

4. Will 'the religion' please stand up
There is a difficulty with the meaning of the term 'religion' in the Bill.  There is no discrimination, it is said, when something is done to conform with the 'doctrines, beliefs or principles of the religion.'

Truth be told, the exceptions in the 1995 Act were so broad that the meaning of 'the religion' has not needed to be tested.   However the operation of new Act will be tested, and quite soon.  The issue of who speaks for 'the religion' will quickly emerge as an issue.  This will not always be a straightforward matter.  For example, in the case of a non-denominational Christian school, will 'the religion' be Christianity, the common beliefs held in the school community, the Christian creeds, or the faith statement of the school's constitution?

In identifying 'the religion', existing diversity within Christian denominations is likely to arise as a problem.  Many denominations have doctrinal documents or principles which may not be followed exactly by individual churches or bodies, and major disputes can exist within a denomination over how  fundamental principles are to be interpreted.  This is particularly the case in relation to sexual ethics, which is one of the areas which the Act will be applied.  (The American Episcopal Church is even now in the process of dividing over the issue of same-sex relationships.) It is absolutely clear that in particular denominations, different congregations will apply different doctrinal principles in the employment of staff.  But which congregation is acting in accordance with 'the religion'? Will VCAT be able to help churches find the answer to their troubling debates over sexual ethics?

Suppose, for example, that a local Anglican parish sacks a lay employee because of their extramarital sexual relationships (gay or heterosexual), but another parish in the same denomination has no problem with employing people in this very same circumstance.  This issue comes to VCAT, or ultimately to a higher court, and testimony is given on the doctrines of 'the religion'.  The evidence is divided.  One side cites the views, say, of Bishop Shelby Spong, whilst another quotes, say, Archbishop Akinola, Primate of Nigeria.   Lengthy submissions are presented on the teachings of the Bible, and how these should be interpreted.  The judge will be asked to make a ruling on what are the 'doctrines, beliefs or principles' of 'the religion'.  This will need to be done with a view to the sensibilities of the 'reasonable person' (the objective test described above).  The judge will find this more than a bit odious.  Perhaps the denominational head could be asked for an official view.  At this point, all hell breaks loose in the denomination, as both sides of the controversy start fighting their theological battles in the public media.

It must be emphasized that the ambiguity in meaning of 'the religion' has existed all along, but because it never mattered, the issue has never arisen.  Now that the government is providing sufficient legal ambiguity for parties to take these matters to VCAT for decision, the issue will emerge from the  shadows.

The new pressures raised by this problem of what 'the religion' means will be felt least by those denominations which are able to assert a high degree of internal doctrinal conformity.  The Catholics and the Presbyterians could  fare better and extract a higher degree of exceptions from the Act than the Anglicans or the Uniting Church.

All in all this Act could have the effect of pressuring denominations to be less diverse in their theology: otherwise they might only receive the 'lowest common denominator' exception, which will be the minimum needed by their least rigorous adherents.

The legal processes triggered off by the new Act could  increase pressures on denominations like the Anglicans or the Uniting Church to divide rather than continue to tolerate their internal theological diversity.  This is a law which – unwittingly – could penalize religious diversity.

Conclusion
This new Bill will raise the expectations of those who have long been seeking to restrict discrimination by religious bodies.  If the Bill is passed, Victoria can expect a fairly active period of complaints and litigation as ambiguities are brought to VCAT and higher courts for clarification.  The months and years ahead will be a time of religious instability and heightened religious tensions.  The government will suffer in popularity, especially in the light of the retention of a more generous exception for political employment.

If this Bill is introduced, religious groups will need to develop defensive strategies to protect their freedom to employ co-religionists with compatible ethical principles.  Playgroup Coordinators will become 'Playgroup Evangelists', and Site Managers will become 'Facilities Ministry Team Leaders'.  But even with such changes, many religious groups could experience real difficulties maintaining their spiritual identity in their workplaces.  Those religious groups with more backbone, and more clearly defined theological boundaries could fare better, because they have a greater chance to extract exemptions based on clearly articulated doctrines.  Those groups which with vaguer and perhaps more 'inclusive' theologies, and greater internal theological diversity, will come under greater pressures to secularization of their employment practices.

The Victorian Labor Government has gone a long way down the track in committing itself to this Bill.  It has already considered extensive advice.  I hope that they will, even at this late stage, reconsider the religious aspects of this divisive law, which will soon incite new levels of legal and spiritual conflict in Victoria.

Jesus the Jew

Someone recently asked me if I had seen "Jesus the Jew" - the Compass episode featuring Howard Jacobson from last Sunday night (May 7).  So with considerable interest I looked up the video and watched it on the internet.

Of course Christianity is absolutely founded on Judaism.  It's no secret. The Christian faith is grounded upon the promises of God communicated and manifested  in 2nd Temple Judaism, including the Hebrew scriptures. Jesus' bible included the Torah and indeed all the Hebrew scriptures, which Christians refer to as the "Old Testament".  Jesus was a Jew - he was not a 'Christian'. The concept of a distinct 'Christian' identity did not arise until after Jesus' death. Jesus did not found a new religion or set out to do so. Also the core rites of Christianity – baptism, the communion, the structure of Christian worship itself – all these are grounded in and developed out of Jewish religious traditions.

None of this should be controversial.  It is good that the Compass show points out such things.

It is also good that the show pointed out the theological roots in Christian tradition of European anti-semitism.  Good, not because this is a pleasant one – it is indeed shameful and appalling – but because it is true.  The truth is a good thing.

Nevertheless the program is not without  flaws.  It is wrong to claim, for example, that followers of Jesus became known as 'Christians' only after the fall of Jerusalem (Acts 11:26 indicates that this happened much earlier, in Antioch).  It is not true to say that it was Paul who innovated the message that Jesus was Lord and Messiah (Acts describes this message as being first preached by Peter on the day of Pentecost).  It is not true that Christian baptism was a Pauline innovation (the tradition goes back to Christ's command at the end of Matthew to baptize the nations).  A long list of such errors could be drawn up.  So the program is not a reliable source of information on the New Testament, nor on what Christians teach and believe.  This is partly a reflection of the Christian scholars whom Jacobson chose to interact with.

But more serious than such errors was the tendency, all through the program, to speak as if the Jewishness of Jesus, and indeed of Christianity itself, was a hidden thing that Christians did not recognize,  and would be shocked to hear about.  That is not at all my experience of 50 years of worship and study in Christian contexts.  I spent three years studying Biblical Hebrew as part of my theological training: there was no cover up about what the foundations of our faith were.  The Shema is a daily part of the Anglican communion service - I always knew where it came from and what it meant in Judaism.  In recent years there have also been a veritable avalanche of books written by Christians which emphasize the Jewishness of Jesus, and indeed of Christianity.

One can only agree that Christians have struggled with the Jewishness of Jesus, and have often actively  downplayed this.  A good example is the history of 20th century Christian scholarship on the parables, much of which tried to prove that Jesus was different from Jewish rabbis.  In pursuing this track, much of the meaning of Jesus' parables was obscured.  It is good that the Israeli scholar Professor David Flusser debunked this flawed scholarship.  Yes, supersessionist theology IS still a problem in Christian thinking, even to this day.  But such observations do not express the whole story.

I can understand the bitterness of centuries of rejection which Jacobson has brought to the creation of this program.  The way Christians have treated Jews has been terrible.  But the program profoundly misleads the audience when it implies – with all the breathless intensity of a news flash – that Christians do not accept Jesus' Jewishness. 

Yes, Jesus was Jesus.  He is Jewish.  He always will be a Jew.  It is a Jew who sits at the right hand of the throne of God the Father.  It is a Jew who will come again as the Messiah to save people from their sins.  It is a Jew who is the second person of the Trinity.  It is a Jew who will judge the world.

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While I am on this theme, I would like to respond to a passage in the program where the curse 'his blood be on us and on our children' is discussed.  This is reported in the mouths of a mob in Jerusalem by Matthew (27:25).

How do I read this, as a Christian?  Yes, it is a curse on one's generations.  These are terrible words to say, or to put in anyone's mouths.  Yet they are more than counteracted by Jesus' words from the cross 'Father forgive them, for they do not know what they are doing' (Luke 23:34).  That expresses the heart of God.  In my understanding, Jesus' words broke that curse, and it had no applicability at all even from the day after Jesus' death on the cross.  Christians who have invoked those dreadful words against Jews down the centuries have been in rebellion against God's own heart for the Jews, and in rebellion against Jesus' own words on the cross.

In every respect the libel that Jews are 'Christ-Killers' is absurd, wicked and indeed unspeakably evil. It is also nonsensical.  It was the Romans who executed Christ.  Pilate could wash his hands all he wished: that act of moral cowardice doesn't change the fact that it was his command, and Roman soldiers executed it.  So should today's Italians be called 'Christ-killers' because of what Pilate did 2,000 years ago?  The whole idea is contemptible.

There has been a great deal of cooperative theological work done by Jews and Christians together on such issues over recent decades.  It is a great shame that Howard Jacobson did not interact with or even acknowledge this important work. His silence about the positive cooperative advances which have been made in addressing the theological roots Christian anti-semitism is most disappointing.

It's Advent Again

Advent - the start of the church's year, comprising four Sundays before Christmas - is upon us.  'Advent' means 'coming', and refers to the coming of the Messiah, both his first coming in the incarnation, and his return.   These are the first and second Advents.
The service readings set for this season do two things.
On the one hand they take us back to the prophets, to Isaiah, Malachi, Jeremiah, standing with Israel looking forward to her redemption.  The call is to get ready, to prepare for the Day of the Lord, when he will visit and rescue his people.  This is a time of both  liberation and retribution, a season of great joy, and also the most painful regret over sin unrepented.
On the other hand, the set readings take us to Jesus' announcements of future judgment, when he tells of his return as judge, to complete the inauguration of the Kingdom of God.  His reflections are full of foreboding and concern lest his listeners be found unready on that great and terrible day.  These tie back into the prophets, as their culmination.
In Advent the church looks forward to the incarnation – to the first coming of the Messiah –  as if standing with Israel centuries BC,  but the key energy in the season of Advent,  the great power which speaks from the readings, is a focus on his Second Coming.  The  sense of anticipation originates with the Hebrew prophets, and flows through the gospels towards God's future for the world.
The thing is, the Christian church in the West today seems to find it a lot easier to focus on the incarnation and Christmas during Advent, than on  the Second Coming and future judgement.  So Advent gets subverted into a kind of pre-Christmas shopping, cooking frenzy, instead of a season of fasting, self-examination, repentence and solemn reflection, which is where a focus on the Second Coming leads us.  What we end up with is a truncated, frozen-in-time perspective on God's saving plan,  held in suspended animation somewhere near Bethlehem.  It is good - indeed essential - to remember, to reflect deeply on the incarnation, but the amazing event of the birth of the Messiah is a signpost into God's future, to his saving intentions for the whole world.  For this season, let our focus be to look forward at this time, towards Christ's Second Advent.  Let us get our hearts ready, not simply to celebrate Christmas, but to await his Second Coming.  The real question for each heart who follows Christ in this season is not 'Am I ready for  Christmas, celebrating Christ's First Coming' but 'Am I ready for his Second Coming.'

A Seed Sown Bears Much Fruit

While I was in Korea recently, speaking on the contribution of St Mary’s to the Korean church, I had a memorable conversation about mission. This was at a Presbyterian church in Busan founded by Australians, where they have a memorial in the grounds dedicated to J.H. Davies. I pointed out that five young missionaries who went from St Mary’s—including Davies—lost their lives soon after reaching their field of work: two from sickness in India and Korea, and three from violence in China.

At the time St Mary’s vicar, HB Macartney, was criticized by the press for sending these young people as if to their deaths. Even in St Mary’s Jubilee booklet of 1908 there was relatively little attention given to these five, and no mention of the three China martyrs at all. It was almost as though this sacrifice was not something to honor.

How different was the reaction of the congregation to the loss of lives in World War I: the magnificent plaque set up on the back wall records their names for perpetuity. Yet from the perspective of the Koreans, J.H. Davies’ mission to Korea was a remarkable success. Over twelve million Korean Christians today are testimony to the fruitfulness of his vision, as many others were inspired by Davies’ example to follow in his footsteps.

The lives of the five young missionaries from St Mary’s were sown deep into the fertile soils of India, China and Korea, and even today they continue to bear a plentiful harvest for the Kingdom. My heart is grieved that people in Melbourne may have regarded the loss of these lives as a mistake.

Jesus said “The hour has come for the Son of Man to be glorified. I tell you the truth, unless a kernel of wheat falls to the ground and dies, it remains only a single seed. But if it dies, it produces many seeds. The man who loves his life will lose it, while the man who hates his life in this world will keep it for eternal life.” (John 12:23-25)

New Blog and a New Site

I'm reorganizing my blogging. From now on I'll be using this Vicar's blog for issues related to St Mary's, life as a Christian in Melbourne and anything which might be of interest to friends of St Mary's Caulfield.

For issues to do with responding to Islam, and other more general issues, I'll be using markdurie.blogspot.com.

For links to all my blogs, and information on my books, articles etc, visit markdurie.com.

Big Problems, Small Solutions

Sometimes very big problems need only small solutions. I learned of a case in Vietnam, where the horrendous problem of child malnutrition can be substantially solved by encouraging families to add tiny shrimps, small fish and crabs found in the rice fields and ponds to their meals. See Recipes for Success Improve children's nutrition in Vietnam.

Another great example could be the 'ridge blade', a turbine electricity generator which sits on the ridge of a building, and collects the wind using the slope of the roof. The prize-winning ridge blade can generate the electricity requirements of a residence, and works 24 hours, even in light wind conditions.
It is also visually unobtrusive. Surely this clever idea could revolutionize the way green power is generated across our cities.

Spiritually it seems true too, that seemingly insurmountable problems can find profound but 'small' solutions. A good example was the heart-rending persecution of Christians under Communist China, and confiscation of church properties and institutions by the state. The solution? Humble house churches: people meeting to worship, learn and pray in each others' homes. The church in the end didn't need its hospitals, schools, universities and so on to survive. It just needed people meeting together in the presence of God, living Christian lives.

Often we cannot see just what wonderful resources God has placed in our own hands, because our ways of thinking have become tangled with other priorities, or we have just become accustomed to fear and defeat.

Be on the look out for that small solution to your next big problem.

Short Video on the Equal Opportunity Laws

Here is an 8-minute video interview on the Equal Opportunity Law Review.