1. The respondent said the reason it had refused the applicant's applications for an exemption from the breathing apparatus policy was because the need for safety and security in the prison meant it could not afford to grant a large number of exemptions from the breathing apparatus policy.
2. Mr Selisky referred to his responsibility under section 20 of the Corrections Act 1986 (Vic) ('Corrections Act') for the safe custody and welfare of prisoners and the management security and good order of the prison. He also referred to his responsibilities under the Occupational Health and Safety Act 2004 (Vic) ('OHS Act') to provide a safe working environment for employees and others entering the prison.[13]
3. Mr Selisky said in his statement that to ensure MRC staff can respond safely to fires in the prison, there is a breathing apparatus policy[14] which requires prison officers to comply with an instruction that men be completely shaven (except for allowing a small moustache). The statement recorded that relevant Australian and New Zealand Standards and the manufacturer's instructions indicate that this is necessary for wearing the breathing apparatus.
4. Since men who grow beards cannot wear the breathing apparatus, they are unavailable to secure prisoners in the event of fire. This is important because in the event of a fire, emergency workers do not have the powers and duties of prison officers and cannot (and do not) respond to fires until prison officers have cleared prisoners from the affected area.
5. The policy says exemptions will be considered for staff who 'wish to maintain facial hair/headwear for religious reasons or have a medical condition which precludes them from donning breathing apparatus'. It says a request for exemption must be supported by documented evidence that would satisfy a reasonable person.
6. At the hearing, Mr Selisky (with permission) provided evidence in addition to his written statement. He said the breathing apparatus policy had been in place since 2018. At that time, he said about 60 to 70 % of prison officers were males and perhaps 25 to 30 % of them had beards, so introducing the policy was difficult for a lot of staff. He said he recalled that the Deputy Commissioner had obtained advice from central religious bodies namely the Islamic Council of Victoria and from a Sikh council and each had confirmed that men of that religion were obliged to maintain their facial hair. He added that no issue had been raised at that time by Catholics about the policy.
7. Mr Selisky said that of the 570 prison officers at MRC, he had granted exemptions from the breathing apparatus policy on religious grounds to perhaps 10 or 12 officers. He said Muslim and Sikh officers must provide evidence - the exemption is not automatic. Similarly, medical exemption applications must be supported by evidence and are given only where the officer is affected by a particular condition that precludes them from being clean-shaven or from wearing breathing apparatus.
8. Mr Selisky said he sometimes refuses requests for exemption. Recently, he said he refused a request from someone whose religion was paganism and who claimed that this required he grow a beard. He said MRC carries very high risks and he needs to have a high bar to ensure the safety and security of the prison and the safety of prisoners.
9. Mr Selisky said MRC is a maximum-security prison and that prisoners in such a place are often unpredictable and emergency responses not uncommon. He added that fire services responding to emergencies do not enter areas where prisoners are unsecured and that prison officers perform the task of securing prisoners in those circumstances as they have the relevant powers under the Corrections Act.
10. He said that at MRC over the last five years there had been 59 fire-related incidents, of which 16 were classified as a major fire. Prison officers had required breathing apparatus for 22 of those incidents. As recently as April 2024, a prisoner died at MRC following a fire in his cell.
11. 'Prison officers who are granted an exemption from the breathing apparatus policy cannot be rostered on high-risk units', Mr Selisky explained. He said that to accommodate exemptions the General Manager can designate certain posts as exempt from the policy, but this can be subject to operational needs, so that any exemption reduces the pool of officers available for the roster in high-risk units, where demand for prison officers is typically high. It also requires shift supervisors to undertake extra planning.
12. In relation to Mr Cassar's applications, Mr Selisky said he refused the first request because he formed the view that it was based on Mr Cassar's personal belief and preference, as opposed to being an absolute requirement of the Catholic faith, which he considered would warrant an exemption. He said his evidence about the prison and safety requirements were matters he took into account in deciding about the request.
13. Mr Selisky said that Father Kurisingal's first letter referred to Mr Cassar's wish to 'express his faith freedom' and overall conveyed that Mr Cassar's desire to maintain a beard was a personal conviction based on beliefs held by his relatives and his own desire to express his interpretation of Roman Catholic texts, rather than an obligatory requirement of the Roman Catholic faith. He said this was different to other requests he had granted for religious exemptions where faith leaders stated that a beard was an obligation of practising male members of the faith.
14. In relation to the second request, he still had only the first letter from Mr Cassar's parish priest which he considered did not satisfactorily demonstrate a beard was a requirement for men of the Roman Catholic faith.
15. In his letter of 4 May 2023[15] refusing the second request, Mr Selisky said: 'I acknowledge that your desire to grow a beard is genuinely due to your religious beliefs and that this is not the outcome you were seeking. An exemption to wearing a breathing apparatus is an important safety consideration and I must assess any exemption requests against my obligations under the OHS Act and the Corrections Act 1986. Exceptions are made in only very limited circumstances'.
16. Following Mr Cassar's email of 17 May 2023 which was accompanied by a new letter from his parish priest[16], Mr Selisky again rejected the exemption application, in an email dated 18 May 2023[17]. He said the new letter stated, 'the growing of facial hair is in fact a requirement of men of the laity'. Mr Selisky said he saw this as conflicting with the earlier letter which indicated that growing a beard was a way for Mr Cassar to express his faith freedom and follow the beliefs of his father and grandfather. He said, 'I am now in a position where I cannot be clear which letter is the more dependable'. He again invited Mr Cassar to obtain guidance from the archbishop.
17. Mr Selisky said his personal understanding of Roman Catholicism was that growing a beard was not a common religious practice for Roman Catholic men. I accepted that evidence as consistent with my own observations.
18. Ms Shae Trevaskis who is a 'Senior People Management Partner' employed by the respondent department also gave evidence and provided a witness statement. Ms Trevaskis has worked on policies and guidance material for Corrections Victoria since September 2022.
19. Ms Trevaskis recently worked on a review of the breathing apparatus policy and said she was responsible for consultation about it with the Community and Public Sector Union ('CPSU'). Ms Trevaskis said the revised policy was provided for comment to the department, nominated management representatives and 'other occupational health and safety stakeholders' and copied to the CPSU. Minimal feedback was received Ms Trevaskis said, and none of it raised any concerns or objections to the proposed requirements for officers seeking exemptions, which are similar to the current policy.

1. I find that Mr Cassar has a religious belief that he should retain his facial hair. There was no reason to doubt his evidence about this. His religious belief is an attribute of his which is protected by the EO Act.
2. I also find that no one authoritative has supported the respondent's assertion that growing facial hair is an obligation for men of the Roman Catholic faith. There was no evidence about the standing of the texts produced by the applicant and no evidence about whether the Roman Catholic Church generally regards them as of a binding nature.
3. I find also that the applicant's belief is not supported by the Roman Catholic Church to which he belongs. There was no evidence that it is a requirement for men of that faith to maintain facial hair. The lack of facial hair on a Roman Catholic man would not mark him out publicly as someone who does not follow the dictates of his faith.

1. Direct discrimination is defined as treating a person unfavourably because of a protected attribute of that person.
2. The respondent submitted that there had been no direct discrimination because the applicant had not been treated unfavourably, and the treatment accorded him had not been 'because of' his religious views. It said the exemptions were refused because there was no satisfactory independent evidence that growing a beard was a requirement of the applicant's religion.
3. The applicant did not argue that being required to comply with the breathing apparatus policy was unfavourable treatment, but rather that the respondent treated him unfavourably by refusing him an exemption from that policy.
4. I accept the respondent's contention that requiring prison officers to comply with the breathing apparatus policy is not unfavourable treatment. For present purposes, I will assume that refusing an exemption was unfavourable treatment.
5. Mr Cassar submitted that like the Muslims and Sikhs who had obtained exemptions when their application was supported by a letter from a local faith leader, he should have been granted an exemption when his parish priest said that growing facial hair was a requirement of men of the laity. This he said was the same level of evidence as had been provided by the men of Muslim and Sikh beliefs. He said the refusal treated him unfavourably because of his religious views.
6. I accept the respondent's unchallenged evidence that when the breathing apparatus policy was put in place, the respondent had consulted with recognised leaders of the Muslim and Sikh religions and had been told that maintaining facial hair was a requirement or obligation of men of those religions.
7. On the question of whether the applicant's application for an exemption was refused because of his religious views, it is necessary to consider the meaning of 'because of'.
8. Section 8(2)(b) of the EO Act provides that to establish direct discrimination, the protected attribute must be a substantial reason for the treatment.
9. In Aitken & Ors v State of Victoria, Judge Ginnane, vice president at VCAT (as he then was) relied on the High Court's consideration of the expression 'because of the disability' in Purvis v NSW.[18] There the Court said '...the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably, was it "because of", "by reason of", that person's disability?'
10. Ginnane J decided in Aitken that the causal requirement was not met. As the respondent pointed out in submissions, the Court of Appeal declined leave to appeal from that decision.
11. In Bashour v ANZ,[19] VCAT vice president Judge English distinguished between facts which were 'a cause' of alleged unfavourable treatment and facts which were a substantial cause. In that instance, VCAT found that the applicant was asked to undertake an independent medical examination so that her employer could ascertain how her underlying medical condition (the protected attribute) affected her ability to attend the workplace and how the employer could accommodate any required restrictions. The medical examination was not sought 'because of' the attribute even though the 'real reason' was related to the attribute.
12. Mr Selisky's evidence shows that he refused to grant an exemption for the applicant because he could not verify that maintaining facial hair was a requirement of the applicant's religion. He said in his witness statement 'given the discrepancy between the new letter and earlier letter, I was reluctant to accept the new letter's position as I could not determine which view was more reliable or authoritative and I was not satisfied Roman Catholicism requires men to retain their facial hair'[20].
13. The evidence does not show that the exemption was refused because the applicant has a particular belief. It was refused because the second letter in support was not accepted and because the respondent could not verify the religious requirement by any objective standard such as an authoritative statement that members of this religion generally behave in this way or that it is a generally applied church teaching.
14. The applicant also says he was discriminated against in the sense that he was treated differently from men of other religions who were granted exemptions seemingly on the basis of a letter from their local faith leader.
15. I accept Mr Selisky's oral evidence that the respondent had ascertained from central bodies of those religions that men of each religion were obliged to maintain their facial hair. I also accept his evidence[21] that he still requires each officer seeking an exemption to apply and provide evidence to satisfy him that an exemption is warranted in their particular case.
16. Taking all that into account I find it was not because of Mr Cassar's religion of Catholicism that he was treated differently from other officers who had produced a letter of support from a local faith leader. He was treated differently from the Muslim and Sikh officers who had gained exemptions because the respondent had a different level of evidence in relation to the obligations of Muslim and Sikh men.
17. Even though the respondent's reason for refusing an exemption was related to the applicant's religious beliefs (his protected attribute) the respondent did not refuse the exemption because of those beliefs.
18. Since the evidence does not show Mr Cassar's exemption application was refused because of his religious views or because he belonged to a particular religion, the refusal was not direct discrimination.

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(b) that is not reasonable.

(2) The person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.

(3) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following -

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(c) the cost of any alternative requirement, condition or practice;

(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

1. As subsection 9(2) says, if the requirement condition or practice complained of disadvantages persons with an attribute, then the person imposing that requirement condition or practice, here the respondent department, has the burden of proving that it is reasonable.
2. The respondent submitted that previous cases show the requirement condition or practice complained about must be identified with precision, as the respondent is entitled to know the requirements it is said to have imposed.[22] In the cases on which the respondent relied, the relevant courts were addressing situations where the applicant sought to rely on inaction by an educational authority and were not relying on a pre-requisite set by the respondent as in this case.
3. I was satisfied the applicant's particulars [23] had sufficiently identified the requirement said to be discriminatory. While the particulars do not differentiate between direct and indirect discrimination, they indicate that the applicant is complaining about the respondent's approach to granting exemptions. In paragraph 23 of the particulars, the applicant refers to section 9(1) and 9(1)(a) of the EO Act. In paragraphs 24 and 25 he mentions the possibility of medical grounds and 'bona fide religious grounds' for exemption and says: 'the Department is being unlawful in the application of this policy'.
4. As I understand it, the applicant complains that he is disadvantaged by the respondent's requirement for independent verification of any claim that men have a religious obligation to maintain facial hair.
5. I consider there is no unfairness to the respondent in characterising the complaint as I do here.
6. At MRC, a prison officer can only be exempted from the breathing apparatus policy on religious grounds if he can produce independent verification that the religion obliges him to maintain a beard. As set out in Mr Selisky's oral evidence verification from a local faith leader is insufficient. There must also be verification from a central body of the religion.
7. The applicant's desire to maintain facial hair is founded on his personal religious belief. The applicant did not produce evidence to independently verify that his belief is a religious belief held by Roman Catholics in general. Nevertheless, it is his religious belief.
8. I agree with the respondent's submission that there must be a causal link between the identified requirement, the attribute in question and the alleged disadvantage. Here, the identified requirement is that exemptions allowing facial hair based on religious belief will only be granted when supported by independent verification from a central religious body. The attribute is a religious belief which has not been verified by a central religious body. The disadvantage suffered by the applicant is that his employer requires him to shave his face in contravention of his religious belief.
9. The respondent also submits that as set out in section 9(1)(a) of the EO Act, the applicant must show the requirement he complains about disadvantages not just him but 'persons' with the attribute.
10. The requirement for verification from a central religious body disadvantages any person with a religious belief that is not supported by evidence from such a body. That group of persons includes the applicant. Such persons employed by the respondent as prison officers are unable to obtain an exemption from the requirement to be clean-shaven.
11. The next question is whether the requirement is reasonable, taking into account all the relevant circumstances of the case, including the ones listed in sub-section 9(3) of the EO Act. The respondent bears the burden of demonstrating that its requirement is reasonable.
12. I note that the question of whether the respondent's approach to the granting of exemptions is reasonable is a question of fact, not a question of legislative construction,[24] even though it requires VCAT in this case to decide what weight should be given to the fact that an employee suffers the disadvantage of not being able to observe his personal religious belief.
13. The applicant made no submissions about what weight, if any, I should give to the reasons advanced by the respondent in support of the reasonableness of its approach to granting exemptions.
14. Referring to section 9(3)(a), the applicant gave little evidence about the nature and extent of the disadvantage he suffers by not having an exemption. He mentioned his wish to maintain a beard is 'not merely a matter of personal preference but a reflection of my deep commitment to my faith' and 'following God's instructions, as outlined in scripture and early Christian texts, is essential for living a life that is pleasing to Him. For me, the beard is more than just an outward symbol. It represents my commitment to a life of faith, integrity and obedience'.
15. I am not in a position to form a view about the extent of disadvantage this represents for the applicant. I note the disadvantage is not said to include any external effects such as how he is regarded or treated by other members of his faith.
16. There is no evidence that there is a community of persons with the same religious belief as the applicant and his family - the belief that being a Christian or a Catholic requires men to have beards. There is no indication that there are any consequences within his religious community for the applicant if he is clean-shaven. No evidence that he loses his entitlement to be recognised as a member of the religious community or is seen as an aberrant or non-adherent member of the religion.
17. Paragraphs (c) and (d) of section 9(3) are not relevant in this case. There was no evidence of adjustments or accommodations or of alternative arrangements which could be made to reduce the disadvantage caused to the applicant.
18. The respondent submitted its approach is reasonable on the following grounds:
    1. The prison where the applicant works is a high-risk environment where large numbers of offenders and remandees are detained against their will and are both controlled and protected by smaller numbers of prison officers.
    2. As set out in Mr Silesky's evidence, fires regularly occur in prisons and regularly require prison officers to don breathing apparatus.[25]
    3. The breathing apparatus manufacturer and the ANZ standards prescribe that men be clean-shaven in order for the breathing apparatus to work effectively so that prison officers are not exposed to smoke inhalation while responding to a fire in prison.[26]
    4. Compliance with that standard ensures that prison officers can breathe and therefore work when there is a fire, which protects their own lives and allows them to protect the lives and ensure the safety and security of prisoners.
    5. Fire services personnel do not enter an area of a prison where prisoners remain unsecured, and do not have the same powers in relation to prisoners as the prison officer do. Therefore, clearing prisoners when there is a fire is a task that can only be performed by prison officers.[27]
    6. The respondent's approach to exemptions, requiring them to be independently verifiable, allows for only a small number of exemptions in very limited circumstances, and thus ensures that almost all prison officers are able to wear breathing apparatus when there is a fire.[28]
    7. Each exemption negatively affects the operation of the prison and limits the rostering of affected officers to a small number of tasks.[29]
    8. Limiting exemptions on the basis of religious belief to circumstances where the obligation can be independently verified by faith leaders allows those beliefs to be accommodated.
    9. It is reasonable to allow some exemptions given the importance placed on religious requirements in our society.
19. I accept all the above grounds (supported by the respondent's evidence) indicate that the respondent's approach to exemption from its breathing apparatus policy is reasonable.
20. The respondent also provided evidence that its policy in relation to breathing apparatus has been reviewed recently and no concerns were raised about the effects of the policy on Catholics or any religion[30]. Ms Trevaskis' evidence about the review was quite general and did not show that the policy had been circulated widely enough to draw all the comments that might have been made by people with religious beliefs, so I do not give that evidence a great deal of weight in deciding whether the policy is reasonable.
21. The respondent submitted that allowing exemptions for personal beliefs that are not readily able to be independently verified would greatly increase the number of exemptions required to be given, which would lead to significant safety and security risks in the prisons.[31]
22. Mr Selisky's evidence does not show that allowing exemptions for personal religious beliefs would greatly increase the number of exemptions. That is an assumption. It is supported to some extent by his oral evidence (which I have no reason to doubt) that before the breathing apparatus policy came into effect in 2018 up to 30% of prison officers grew beards. I accept it would be difficult to manage distinguishing between staff who seek exemption based on personal beliefs and those seeking exemption based on personal preferences.
23. Mr Selisky said that lowering the evidence threshold for exemptions to include personal belief or grooming preference would compromise the ability of MRC to respond safely to fire incidents. He indicated the prison may need to consider the alternative of withdrawing the opportunity for staff to have exemptions on religious grounds.
24. Mr Selisky referred to the duties of the officer in charge of a prison under section 20 of the Corrections Act - which require him to take all reasonable steps for the security of the prison and to take all reasonable steps for the safe custody and welfare of the prisoners. He also referred to his duties under the OHS Act to provide and maintain a working environment that is safe and without risk to health.
25. Put simply, his evidence was that in order to keep the prison safe and secure, only a limited number of exemptions from the breathing apparatus policy can be granted and requiring independent verification of the reasons for the exemption (be they religious or medical) allows the respondent to give some exemptions while keeping the number of exemptions low.
26. Returning to paragraph (b) of subsection 9(3), there remains the question of whether the disadvantage suffered by the applicant is proportionate to the result sought by the respondent.
27. The applicant is unable, in the course of his employment, to observe an article of his personal religious belief. On the evidence before me, the effects of this are entirely personal and internal to him.
28. The respondent seeks to ensure the security and safety of the prison and prisoners by minimising the number of exemptions to the policy that prison officers to be clean-shaven so they can wear breathing apparatus in an emergency.
29. I accept that in all these circumstances the respondent's approach, namely, only to grant exemptions for religious belief when there is independent verification that the religious belief is recognised in an organised religious group, is a reasonable approach. It is disadvantageous to the applicant but allows members of religious groups with an organised following in the community to have their religious obligations considered without compromising the safety of prisoners or the safety and security of the prison.
30. Since the respondent's approach to exemptions from its breathing apparatus is reasonable, there has been no indirect discrimination.

1. The applicant has not proved that the respondent's refusal to exempt him from the breathing apparatus policy was either direct discrimination or indirect discrimination. Accordingly, his application is dismissed.

[1] The applicant filed this document on 17 September 2024 when his particulars of claim were due. He also relied on this document as his submissions.

[2] Mr Selisky was acting in the position of Assistant Commissioner custodial operations at the time of the hearing. He has been General Manager at MRC since 2019 and held other positions as a General Manager of prisons since 2016 and has worked in prisons since 1990, as set out in his witness statement.

[3] Slaveski v Smith & Anor [2012] VSCA 25 at [24].

[4] The applicant provided a copy of extracts from a text: "The Ante-Nicene Fathers vol.7" edited by Roberts and others, published by Cosimo Classics.

[5] See applicant's statement of 5 November 2024 at [29] to [30].

[6] Letter from Fr Varghese Kurisingal dated 1 March 2022, attachment C to the applicant's witness statement.

[7] Attachment NS6 to the s statement of Nicholas Selisky.

[8] Attachment B to applicant's statement of 5 November 2024.

[9] Attachment E to applicant's statement of 5 November 2024.

[10] Attachment D to applicant's statement of 5 November 2024.

[11] Attachment NS 11 to the statement of Nicholas Selisky.

[12] Attachment F and Attachment G to the applicant's statement of 5 November 2024.

[13] Statement of Nicholas Selisky at [4].

[14] Attachment NS2 to witness statement of Nicholas Selisky.

[15] Attachment E to the applicant's statement and NS 8 attached to Mr Selisky's statement.

[16] Letter dated 2 May 2023 from Father Kurisingal Attachment D to the applicant's statement and NS 10 to Mr Selisky's statement.

[17] NS 11 attached to the statement of Mr Selinsky.

[18] [2003] HCA 62; (2003) 217 CLR at 163 [236].

[19] Bashour v ANZ [2024] VCAT 1197, [389].

[20] Statement of Nicholas Selisky at [44].

[21] Statement of Nicholas Selisky at [34].

[22] Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284 at [204]; Abela v State of Victoria [2013] FCA 832, at [95]-[96].

[23] Filed on 17 September 2024, which were also relied on as his submissions.

[24] See Arora v Melton Christian College [2017] VCAT 1507.

[25] Statement of Nicholas Selisky at [21] and [22].

[26] Statement of Nicholas Selisky at [5]-[7].

[27] Statement of Nicholas Selisky at [23].

[28] Statement of Nicholas Selisky at [28].

[29] Statement of Nicholas Selisky at [28.

[31] Statement of Nicholas Selisky at [29] - [30].