Significant reforms to religious exceptions to discrimination have come into effect – is your organisation compliant?

In December 2021, the Equal Opportunity (Religious Exceptions) Amendment Act 2021 (EOA Amendment Act) was passed.  The EOA Amendment Act amends the Equal Opportunity Act 2010 (Vic) (EOA) to significantly narrow the exceptions to discrimination that may be relied upon by religious organisations and religious educational institutions  in Victoria.

The majority of the amendments contained in the EOA Amendment Act came into effect on 14 June 2022.  In this alert, we summarise what your organisation needs to know in order to ensure compliance with the reforms.

Changes to the religious exceptions

The EOA Amendment Act has broadened the religious bodies’ and religious schools’ exceptions so that the exceptions can be relied upon by more organisations.  Religious organisations that receive Victorian government funding to provide goods and services are now subject to the religious bodies’ exception and the religious schools’ exception has been broadened to capture all religious educational institutions.

However, the EOA Amendment Act has significantly narrowed the circumstances in which the religious exceptions can be relied upon by religious bodies, religious educational institutions and individuals.  Broadly speaking, the key changes are as follows:

  • Introduction of new employment exceptions for religious bodies and religious educational institutions, the effect of which is that these organisations can no longer rely on the general religious bodies’ or religious educational institutions’ exceptions in the context of employment;
  • Narrowing of the religious bodies’ and religious educational institutions’ exceptions, the effect of which is that these exceptions can only be relied upon in very limited circumstances;
  • Removal of the 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.

Click here for a more in-depth summary of the effect of the amendments.

What does this mean in practice?

The implications of these changes for faith-based organisations and religious educational institutions are significant and wide-ranging.  In particular, it will no longer be lawful:

  • for religious bodies and religious educational institutions to discriminate against a person in employment on any grounds except religious belief or activity (and only in limited circumstances);
  • for religious bodies and religious educational institutions that receive funding from the Victorian government to discriminate against persons in the provision of goods and services on any grounds except religious belief or activity (in limited circumstances);
  • for religious educational institutions to discriminate against current or prospective students on the basis of their sexual orientation, gender identity, marital status, parental status or lawful sexual activity;
  • for individuals to make discriminatory statements against other persons for religious reasons.

What steps should religious bodies and religious educational institutions take to prepare for the reforms?

If your organisation would like to understand the impact of the reforms on its operations, we recommend that it:

  • Consider the extent to which a religious exception may apply to its operations;
  • Assess the inherent requirements of relevant positions;
  • Review their policies and procedures for recruitment and enrolment;
  • Consider implementing guidance on screening prospective staff and students, and the types of questions or statements that can and cannot be made during job or enrolment interviews;
  • Review their job and enrolment advertisements for discriminatory statements;
  • Seek legal advice before relying on the new religious exceptions.

How Moores can help

Moores has a wealth of experience navigating the complex landscape of anti-discrimination laws, and assisting faith-based clients to grapple with the intersection of law and faith.  If you’re not sure whether your employment practices, enrolment practices or service arrangements are consistent with the reforms, please contact us.

Q&A Webinar

Faith on the (Front)line in Victoria – a special Q&A with the Victorian Equal Opportunity & Human Rights Commission

In this webinar, Moores’ Practice Leader, Skye Rose, will speak with Emily Howie, General Counsel and Director of Dispute Resolution at the Victorian Equal Opportunity & Human Rights Commission (VEOHRC), and ask your burning questions about what these changes mean in practice. To find out more and to register click here.

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