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Should Discrimination in Victoria's Religious Schools Be Protected? Using the Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance

33 Pages Posted: 29 Nov 2011 Last revised: 30 Nov 2011

John William Tobin

Melbourne Law School

Date Written: November 28, 2011

Abstract

The aim of this paper is to assess whether the capacity for religious schools to discriminate against staff and students on the basis of attributes such as their sexual orientation can be justified under human rights law, specifically the provisions the Victorian Charter of Human Rights and Responsibilities Act 2006. Two conclusions are offered. First, rather than being perceived as a simple conflict between the right to freedom of religion of schools and the right to non discrimination of adults, a proper human rights analysis also requires that the obligation to protect the best interests of children must also be taken into account. Second, an examination of the factors that must be considered when determining whether an interference with a human right can be justified, reveals that the exemption granted to religious schools under the Victorian Equal Opportunity Act represents not only an unreasonable limitation on the right to equality and non discrimination to be enjoyed by staff and students, it also contributes to an educational environment that is inconsistent with the best interests of children.

Keywords: discrimination, religious schools, Victorian Charter of Human Rights

JEL Classification: K19, K39

Suggested Citation

Tobin, John William, Should Discrimination in Victoria's Religious Schools Be Protected? Using the Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance (November 28, 2011). U of Melbourne Legal Studies Research Paper No. 564. Available at SSRN: https://ssrn.com/abstract=1965743 or http://dx.doi.org/10.2139/ssrn.1965743

John William Tobin (Contact Author)

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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