The resignation of Andrew Thorburn, 1 day after he was appointed CEO of the Essendon Football Club, has stoked debate about the protections for employees who express views associated with their faith, or are associated with religious organisations that express those views.

Australia has ratified the International Covenant on Civil and Political Rights, which protects and promotes the rights of freedom of thought, conscience and religion. This treaty makes it clear that religious organisations and people of faith have the right to act in accordance with the doctrines, beliefs or teachings of their traditions and faith.

Most Australian state and territory jurisdictions have legislated to provide protection for their citizens from discrimination on the basis of religious beliefs and practice (Queensland, Western Australia, the Australian Capital Territory, Northern Territory, Victoria, South Australia and Tasmania). However, these protections are not absolute.

For example, in Victoria, religious organisations can discriminate based on religious belief if it is needed to respect religious beliefs or is reasonably necessary to avoid offending or harming the beliefs of the religious followers. However, exceptions exist to prevent religious organisations from discriminating against a person because of certain personal characteristics such as sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity.

The state and territory anti-discrimination laws protect against the discrimination of person on the grounds of the religious belief they hold or the lawful religious activity in which they engage. The lack of definition of what constitutes a ‘religious belief or activity’ has been criticised because it leaves it to the courts and tribunals to decide whether a particular belief is part of a religion. The High Court has taken a flexible approach in determining what constitutes a religion, noting that faith traditions may emerge or develop over time.

There is also the question of when the expression of a particular view is a manifestation of a religious belief, such that to discriminate on grounds of the former is to effectively discriminate on grounds of the latter. The European Court of Human Rights has ruled that this requires the view to be ‘intimately linked’ to the religion or belief, or to have ‘sufficiently close and direct nexus between the act and the underlying belief’.

In Kapoor v Monash University and Anor (2001), the Victorian Court of Appeal determined a claim by a Hindu university teacher alleging her contract was not renewed because of her religious customs, which included maintaining a socially reserved nature. The Court found that her reserved personality was not a characteristic of her religion and that her termination was based on her inability to teach in the university’s Aboriginal program. Her reserved personality was “a cause of [her] unsuitability and not the reason for deciding that [her] contract should not be renewed”.

The Fair Work Act 2009 (Cth) (FW Act) prohibits an employer from taking adverse action against an employee or prospective employee because of their religion. However, there are exceptions allowing employers to discriminate on the basis of religious beliefs. For example, if a religion requires certain types of clothing to be worn and this is not safe because of the person’s job, then an employer can discriminate on religious grounds because the person cannot fulfil the inherent safety requirements of the particular job.

Other than the FW Act, federal legislation does not currently provide an avenue for an employee or prospective employee to seek a remedy for religious discrimination. The previous Coalition Government attempted (unsuccessfully) to address this issue by passing legislation that would have prohibited discrimination on the ground of religious belief or activity. There is some support among the current Federal Government for legislation in this area. However, it does not appear that this will be likely in the short or medium term.