Tribunal asked to rule that applicants for chaplain positions not be ruled out based on religion

This article is more than 2 years old

This article is more than 2 years old

The school chaplains program has been labelled discriminatory in a test case against rules requiring pastoral care workers to be connected to organised religion.

In a case that could have significant repercussions on the controversial program, the requirement that potential employees of Access Ministries, one of the groups that provides pastoral care, must be Christian will be challenged in the Victorian civil and administrative tribunal.

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Secular and atheist groups have challenged the federally funded program, which is administered by states, on the grounds it harms freedom of religion because the role itself is meant to be non-religious.

The Vcat complaint takes the case of a candidate who had worked as a chaplain in three other schools, including a Catholic school, and was barred from applying from primary school positions because she was not Christian.

The complaint claims Access Ministries is an employer that has advertised employment opportunities, but has discriminated against a potential employee because of her lack of religion.

“The discrimination is not reasonably necessary for Access Ministries to comply with the doctrines, beliefs or principles of the religion associated with Access Ministries, because the work of a school chaplain takes place in a non-religious context and workplace, namely a government school, with a student population made up of students with a variety of religious affiliations and with no religious affiliation,” the complaint reads.

“The work of a school chaplain is non-religious. As Justice Heydon explained in Williams v Commonwealth the work described could have been done by persons who met a religious test. It could equally have been done by persons who did not.”

The Victorian Department of Education and Training is also named in the complaint as having “requested, instructed, induced, encouraged, authorised or assisted” Access Ministries, which applied the employment criteria.

Vcat is being asked to make a finding that will stop potential applicants for the chaplaincy program from being discriminated against, based on their religion, or lack thereof.

The chaplains program was a Howard government initiative and was continued by subsequent Labor governments, and then given almost $250m to continue in Tony Abbott’s first budget in 2014. The most recent budget extended the program with another $250m over four years.

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Advocates for the program argue it provides school students with additional support, while critics have taken umbrage at the religious components in state, secular schools

Associate Prof Luke Beck, who specialises in religious freedom and separation of church and state issues at Monash University, argues Access Ministries is breaking the law with its employment requirements.

“State anti-discrimination law prohibits discrimination against job applicants based on religion just as much as it prohibits discrimination against job applicants based on sex or race,” he said.

“Advertising a job and saying only people from one particular religion may apply is unlawful discrimination. That’s what’s going on with school chaplain job ads. That’s what Access Ministries has done.

“The high court has previously said there is no good reason why school chaplains should be religious. School chaplains provide non-religious student welfare services.

“If the case succeeds, the practical outcome will be that school chaplain jobs will need to be open to all qualified applicants regardless of religious belief. Religious discrimination is wrong. This case seeks to vindicate that important principle.”

The Human Rights Commission had been asked to investigate the chaplains program earlier this year, but declined on the grounds Philip Ruddock was already reviewing Australia’s religious freedoms for the government.

• Additional reporting by Paul Karp