The Commonwealth Government has released a package of draft legislation, including a draft version of the Religious Discrimination Bill (the draft Bill) for public comment and submissions. The legislation was drafted in response to the Report of the Religious Freedom Review (the Review) which was released by the Prime Minister and the Attorney-General on 13 December 2018. The Review made several recommendations and concluded that there was:
The Federal Government has committed to implementing a number of the Review's recommendations and intends to introduce bills being consulted on into Parliament later this year.
The proposed legislative package is made up of three items of proposed legislation as follows:
The draft Bill intends to make it unlawful to discriminate on the basis of religious belief or activity in “specified areas of public life” but it does not aim to create “a positive right to freedom of religion”. The provisions of the draft Bill are designed to be consistent with existing federal discrimination legislation in areas such as sex and racial discrimination. There are however, some areas that differ from existing legislation.
Under the draft Bill complaints are to be made to the Australian Human Rights Commission (AHRC). The AHRC can inquire into and seek to conciliate complaints, and where conciliation fails, individuals are able to apply to the Federal Court or Federal Circuit Court of Australia. The basis for complaint to the AHRC will be an allegation by a person that they have been subject to unlawful discrimination on the basis of their religious belief or activity if the:
The draft Bill defines the term “religious belief or activity” broadly as:
This broad definition is said to be necessary to ensure the religious beliefs and activities of “all religions are captured by the [draft] Bill”. This approach is said by the government to also “ensure that beliefs that are defined by reference to a lack of religious belief, such as atheism and agnosticism, will be protected by this [draft] Bill”.
Religious belief, as such, is not defined for the purposes of the draft Bill and is intended to include beliefs associated with major faith traditions, including Christianity, Islam, Hinduism, Buddhism or Judaism, as well as the beliefs of smaller and emerging faith traditions. It is not intended to capture beliefs caused by mental illness or that are motivated by criminal intent.
Religious activity as such is also not defined for the purposes of the draft Bill, but for example may include:
It should be noted that the definition of “religious activity” is limited to activities which are lawful religious activities, and that the draft Bill does not protect religious activities that are inconsistent with Commonwealth, state or territory law, including activities which might amount to criminal conduct.
Discrimination on the basis of religious belief or activity for the purposes of the
draft Bill includes both direct discrimination and indirect discrimination.
Direct discrimination being where a person treats another person less favourably than someone in similar circumstances, because of that person’s religious belief or activity.
Indirect discrimination being where an apparently neutral condition has the effect of disadvantaging people of a particular religious belief or who engage in a particular religious activity. However, a person does not indirectly discriminate against another person by imposing a condition, requirement or practice that is reasonable in all the circumstances. Criteria for assessing reasonable are provided for in the draft Bill.
The draft Bill covers indirect discrimination by an employer by proposing additional requirements on large businesses relating to “standards of dress, appearance or behaviour which limits religious expression”. Where a large business imposes a condition relating to the dress standards, appearance or behaviour of its employees, and that condition has the effect of restricting or preventing an employee from making statements of belief in their private capacity, the draft Bill proposes that the business be required to prove that compliance with the condition is necessary to avoid unjustifiable financial hardship to the business. Where this cannot be demonstrated, the condition will be ruled not reasonable and discriminatory. This is regardless of whether or not the condition would be reasonable under a general reasonableness test. It should be noted these provisions only apply to employers with $50 million or more in revenue, but does not include the Commonwealth, state or territory public sector and does not affect small business.
Conscientious objections by health practitioners, especially, indirect discrimination resulting from health practitioner conduct rules, is also covered by the draft Bill.
The draft Bill also propose that certain conduct is not covered, for example, the draft Bill proposes that religious bodies do not discriminate on the basis of religious belief or activity by engaging in conduct, in good faith, that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of their religion. This is qualified by the proposition that the draft Bill does not provide religious bodies with a broader defence or exemption from other Commonwealth anti-discrimination legislation, such as the Sex Discrimination Act for example. It only proposes that certain religious bodies do not discriminate on the grounds of their religious belief or activity when acting in accordance with their faith. Discrimination on the basis of sexual orientation or gender identity continues to be regulated by the Sex Discrimination Act.
The draft Bill proposes the creation of a statutory position to be known as the Freedom of Religion Commissioner in the Australian Human Rights Commission (AHRC). The Commissioner will have similar functions to the existing Commissioners and will focus on:
According to the government this Bill is designed to amend existing Commonwealth legislation to better protect the right to freedom of religion. It will implement:
In a media release dated 29 August 2019 the Attorney-General has stated that the draft Bill reflected:
A key concept expounded by the Attorney-General in the media release was that the draft Bill aimed to deliver a 'shield' against discrimination, and not a 'sword'. That is:
In his media release, the Attorney-General also indicated that he expected the draft Bills to be introduced into Parliament in October 2019 and to be considered by both the House of Representatives and the Senate before the end of 2019, thus also allowing time for a Senate inquiry.
The Attorney-General also indicated that the Australian Law Reform Commission (the ALRC) inquiry into religious exemptions to other discrimination laws across Australia would continue. That review covers recommendations 1 and 5-8 of the Review. The ALRC is due to report in December 2020 and it should be noted the ALRC inquiry Terms of reference were altered on 29 August 2019 by the Attorney-General.
The ABC News has reported that government members of parliament were “ largely satisfied with the draft Bill, saying it is in line with what was presented to them during briefings with the Attorney-General”. The Opposition response, led by Shadow Attorney-General Mark Dreyfus, included concerns that:
Some commentators have expressed concerns that separating the draft Bill and the ALRC inquiry into two separate processes has reduced the ability to properly consider any amendments being made. The Australian reported that Michael Stead, Anglican bishop of South Sydney and Chair of the Religious Freedom Reference Group, said that he and Anglican Archbishop Glenn Davies had:
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DRAFT - Religious Discrimination Bill 2019 [CTH], Religious Discrimination (Consequential Amendments) Bill 2019 [CTH] and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 [CTH] and explanatory materials available from TimeBase's LawOne service
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