Draft Commonwealth Religious Discrimination Bills Package Released for Comment

Thursday 5 September 2019 @ 2.36 p.m. | Industrial Law | Legal Research

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:

 “. . . an opportunity to further protect and better promote freedom of religion under Australian law and in the community”.

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 Bills

The proposed legislative package is made up of three items of proposed legislation as follows:

  • the draft Bill which is intended to provide comprehensive protection against discrimination on the basis of religious belief or activity in specified areas of public life (implementing recommendations 3, 15 and 19 of the Review);
  • the Religious Discrimination (Consequential Amendments) Bill 2019 which makes consequential amendments necessary to implement the draft Bill (in particular it amends existing Commonwealth legislation to reflect the proposed new prohibition of discrimination on the basis of religious belief or activity, and the new office of the Freedom of Religion Commissioner); and
  • the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 which is to amend existing Commonwealth legislation to better protect the right to freedom of religion (amendments the government says will bring certainty to charities, religious educational institutions, and the community at large, by removing ambiguities in the Charities Act 2013 and the Marriage Act 1961. These amendments will also ensure that existing Commonwealth anti-discrimination legislation gives appropriate weight to all human rights, including the right to freedom of religion).

The Religious Discrimination Bill Provisions

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:

  • person has or engages in a religious belief or activity,
  • person has been subject to direct or indirect discrimination on the basis of their religious belief or activity,
  • discrimination occurs in a specified area of public life, and
  • the conduct is covered by the draft Bill and an exception does not apply.

Religious Belief or Activity

The draft Bill defines the term “religious belief or activity” broadly as:

  • the holding or not holding of a religious belief, or
  • engaging, not engaging or refusing to engage in lawful religious activity.

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:

  • participating in religious observances (such as prayers, fasting, ceremonies or other holidays)
  • wearing religious dress (such as a hijab, kippah or kirpan)
  • not engaging in certain conduct in accordance with religious belief (such as not eating meat or drinking alcohol), or
  • expressing religious beliefs, such as through evangelising, where adherents of that religious group are required, or encouraged, to evangelise.

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.

New Freedom of Religion Commissioner

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:

  • strengthening the understanding and protection of freedom of religion in Australia through community outreach
  • advocating for and inquiring into issues relating to freedom of religion, and
  • promoting understanding and compliance with the Religious Discrimination Act.

The Human Rights Legislation Amendment (Freedom of Religion) Bill

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:

  • recommendation 3 of the Review by updating the objects clauses in existing Commonwealth anti-discrimination legislation including the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004, to recognise the indivisibility and universality of human rights;
  • recommendation 12 of the Review by amending the Marriage Act 1961 to provide protections for religious educational institutions by clarifying that the religious educational institution may lawfully refuse to provide goods, services or facilities for the solemnisation of a marriage; and
  • recommendation 4 of the Review by amending the Charities Act 2013 to clarify that the advocacy of traditional views of marriage by charitable institutions will not disqualify the charitable institution from being a charity.

Attorney-General's Media Release

In a media release dated 29 August 2019 the Attorney-General has stated that the draft Bill reflected:

 “the election commitment to present a Bill which reflects the structure of existing anti-discrimination legislation, . . . Australia has a strong anti-discrimination framework with specific protections for people against discrimination on the basis of their age, sex, race and disability. . . This draft Bill released today extends those protections to provide protection for people against discrimination on the basis of their religion or religious belief, or lack thereof.”

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:

"The laws will protect people from being discriminated against, but will not give them a licence to discriminate against other people, or engage in harassing or vilifying speech."

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.

Reaction and Comment

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:

“it was still to be briefed on the legislation . . . It's apparent from some of the public reaction already that very many other Australians have not been consulted, . . . Almost no religious organisations have been consulted, certainly LGBTI groups do not appear to have been consulted . . . It's time that the debate that the Government's been having internally be allowed to occur with the whole Australian community."

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:

“. . .  very significant concerns . . . I expect there will be minor tweaking around the edges and that there are probably little things that need to be improved . . . But I don’t expect that they will be substantive changes to the architecture of the bill. I think the Attorney-General has made it very clear that the overriding framework is not going to change. . . What concerns me more is what’s not in the bill, and specifically, that the ALRC process is now going to be delayed so that its recommendations can’t be considered in parallel with this bill.

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