Thorburn church pastor regrets ‘sloppy analogy’; legal options against Essendon grow

Mason also said he wished Victorian Premier Daniel Andrews had been able to learn about his City on the Hill church before he criticised the group for “rampant homophobia” and “bigotry”.

In a separate sermon, another City on a Hill leader said practising homosexuality was a sin.

City on a Hill pastor Guy Mason.

“It would have been nice I think for the premier … to get to know us before perhaps making labels and statements like that, which can be unhelpful, I think, in a discussion like this,” Mason said.

The pastor added he didn’t “personally feel persecuted” and respected the premier’s right to share what he thinks, but said he worried if faith limited a person’s ability to express themselves.

Australian employment lawyer Mark Fowler said the association of Thorburn’s religious views with those expressed in City on a Hill sermons could offer legal grounds for a religious discrimination claim.

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Thorburn could take action for discrimination based on his personal religious views, assuming that they were the basis of his forced resignation, but he could also separately argue that he was discriminated against because of his association with the church.

Fowler, an expert on religious discrimination law, was first to suggest rugby player Israel Folau had legal grounds to sue for religious discrimination after Rugby Australia terminated his contract for his public comments about homosexuals as sinners. He said Thorburn’s personal association as church chairman arguably provided him with separate grounds for claiming discrimination.

Essendon president David Barham said he asked Thorburn to choose between being the Bombers CEO and his chairmanship of the church a day after his appointment on Monday. Thorburn picked the church.

Fowler, an adjunct associate professor at two NSW university law schools, said it was not only unlawful to discriminate against a person because of their religious belief under the Victorian Equal Opportunity Act 2010, but also because of their “personal association” with the church under section 6 of the Act.

“It is not a defence to say that Thorburn agreed to step down. An ultimatum from the club to do so (presuming that this is what was issued) would amount to constructive dismissal. A person cannot consent to discrimination against them,” he said.

A potential exception to section 6 of the Act is that an employer can argue it was a legitimate occupational requirement of the job for Thorburn to not be associated with a church that preached a particular message.

“There is no exception in the Act that would apply, as it cannot be said that the requirements that have been imposed fall within the very strict definition of a ‘genuine occupational requirement’,” Fowler said.

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The exception only applies if experience in a particular profession is relevant, he said.

Fowler said provisions within the proposed Commonwealth Religious Discrimination Bill that passed the Lower House with bipartisan support in February clarified that, in the context of professional appointments, organisations could not seek to impose a “secular” stance on the extra-work activities of their employees unless such reflected an “essential requirement” of the role.

“Thorburn’s situation accentuates the importance of Labor’s election commitment to legislate a federal protection against religious discrimination,” he said.

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