On 22 November 2017, the Federal Government announced a review into religious freedom in Australia in the context of the marriage equality plebiscite. The Final Report of the Expert Panel on Religious Freedom outlined a number of legislative and non-legislative recommendations to enhance the protection of religious freedom. The Religious Discrimination Bill 2019 (Bill) is part of a package of reforms that aims to give effect to a number of these recommendations. As part of public consultation on the Bill, the Commonwealth released an exposure draft for public comment. Submissions are now closed. There have been a large number of public comments on the Bill as well as a vigorous political debate, and amendments are possible both before the Bill is presented to Parliament and as a consequence of the Parliamentary debate that follows.
Prohibiting discrimination
The stated objects of the Bill are to eliminate, as far as possible, discrimination on the ground of religious belief or lawful religious activity, in a range of areas of public life, ensure as far as practicable equality before the law, and to allow people (subject to specified limits) to make statements of belief (think of Israel Folau and Rugby Australia, discussed below).
As with other anti-discrimination laws, the Bill prohibits both direct and indirect discrimination.
A person directly discriminates against a person on the ground of their religious belief or activity, if they treat, or propose to treat, a person less favourably than a person who does not have that religious belief or engage in that religious activity, in similar circumstances. For example, direct discrimination could occur if an employer chose to dismiss or not employ a person because of that person’s faith.
Indirect discrimination occurs where a person imposes a condition which is facially neutral, but which has the effect of disadvantaging persons who have or engage in a particular religious belief or lawful religious activity. The Bill provides that a person discriminates against another person on the ground of the other person’s religious belief or activity if:
- they impose (or propose to impose) a condition, requirement or practice;
- that condition, requirement or practice has (or is likely to have) the effect of disadvantaging persons who have or engage in a particular religious belief or lawful religious activity; and
- the condition, requirement or practice is not reasonable.
Reasonableness will be assessed having regard to all relevant factors, but will require specific consideration of the extent to which the condition impedes the person's ability to practice their religion. These factors include (but are not limited to):
- the nature and extent of the disadvantage resulting from the requirement;
- the feasibility of overcoming or mitigating the disadvantage;
- whether the disadvantage is proportionate to the result sought by the person imposing the requirement; and
- if the requirement relates to an employee’s standard of dress, appearance or behaviour, then the extent to which it would limit the ability of the employee to engage in their religious belief or activity.
An example provided by the explanatory memorandum to the Bill is a requirement for an employee to attend a recurring meeting on a Friday afternoon, which could discriminate against persons of Jewish faith who leave early to observe the Sabbath. A similar issue may arise in an education context, if a student is required to attend classes, in person, on a Friday afternoon and a recording of the class is not available for the student to access at another time. This aspect of the Bill, coupled with the fact that the definition of religious belief includes the absence of religious belief (ie everyone has a religion for the purposes of the Bill and therefore is intended to have protection under it) is likely to lead to legal complexity, particularly in dealing with indirect discrimination claims.
Religious beliefs and activities
The Bill defines a religious belief or activity as holding a religious belief/engaging in a lawful religious activity, and not holding a religious belief/engaging in a lawful religious activity. Consequently, Atheism and Agnosticism are considered religions for the purposes of the Bill.
Further, the concept of a religious belief is not defined in the Bill, but the explanatory memorandum indicates that it is intended to capture genuine religious beliefs, including the beliefs of small and emerging faith traditions. It is not intended to capture beliefs caused by mental illness or that are motivated by criminal intent.
The Bill also protects ‘statements of belief’ that are made in good faith and which may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of a religion, which is seen as a direct response to the issue raised in the Israel Folau litigation. This is discussed in greater detail below.
Prohibiting discriminatory employment practices
As part of the prohibition on indirect discrimination, the Bill outlines that conditions imposed by an employer that relate to standards of dress, appearance or behaviour (referred to as an ‘employer conduct rule’) may not be considered reasonable (and may therefore constitute unlawful discrimination) in certain circumstances. A relevant factor in this assessment, specific to an employer conduct rule, is the extent to which the rule limits the ability of an employee to have or engage in the employee’s religious belief or activity.
For example, the explanatory memorandum indicates that a uniform requirement applying only to employees involved in food preparation (for example, within a cafeteria at student accommodation) may be reasonable if it is necessary to satisfy food safety requirements, notwithstanding that it may disadvantage persons who wear religious dress. This can be contrasted with a dress code which prohibits all employees from wearing any form of religious dress whilst in the workplace, which would not be reasonable.
The definition of ‘employment’ in the Bill incorporates not only paid work, but also unpaid work. This means, for example, that students who undertake an internship, practical placement or volunteer with a third party will be covered by the protections against religious discrimination provided by the Bill.
Further, in the employment context, the Bill deems certain conduct by private businesses with revenue in excess of $50 million (‘relevant employers’), as unreasonable, and therefore discriminatory. For these businesses, if they impose an employer conduct rule that would restrict or prevent an employee from making a statement of belief outside of work hours, there is a presumption that this restriction on religious expression is not reasonable unless it is necessary to avoid unjustifiable financial hardship to the employer. This is an issue which would arise directly if a matter similar to the Israel Folau case arose under this Bill. In its defence in those proceedings, Rugby Australia has pointed to the impact of Israel Folau's social media posts on the retention of key sponsors. The Bill does not, however, define what constitutes ‘unjustifiable financial hardship’.
Discrimination in educational institutions
In addition to the general prohibition on discrimination on the grounds of religious belief or activity in areas of public life, the Bill also sets out some specific prohibitions in relation to the education sector. In this regard the Bill builds upon legislation in some States and Territories that already prohibits certain discriminatory conduct. The Bill provides that it is unlawful for an educational institution (but not a religious educational institution) to discriminate against a person in certain circumstances. This includes refusing, on the grounds of religious belief or activity, to accept a person’s application for admission as a student or in relation to the terms or conditions on which the educational institution is prepared to admit the student. For current students, it is unlawful to discriminate against them on religious grounds by limiting or denying a student’s access to any benefit provided by the institution, by expelling them, or by subjecting them to any other detriment.
Other specific provisions which might be relevant to the education sector relate to discrimination in accessing premises (lecture halls, sporting facilities, functions facilities etc.) and the provision of goods, services and accommodation (student housing).
Conduct that is not considered discriminatory
The Bill provides that conduct engaged in by religious bodies in good faith in accordance with their religion does not constitute unlawful discrimination. However, if an educational institution does not meet the requirements of the exception (eg it is not a religious body as defined, or the conduct is not relevantly 'in good faith' and/or in accordance with their religion) then the conduct will not be deemed to be non-discriminatory. In these circumstances, whether or not the conduct is unlawful will depend on whether the condition, practice or requirement (for the purposes of indirect discrimination) can be shown to be reasonable, or the discrimination relates to the inability of an employee to carry out the inherent requirements of their role.
A religious body includes educational institutions, charities and other bodies that conduct themselves in accordance with the doctrines or beliefs of a particular religion. For bodies other than educational institutions, those bodies will not be considered a religious body, for the purposes of the Bill, if they engage solely or primarily in commercial activity. The explanatory memorandum indicates that, for example, whilst this would permit a religious order to require prospective members to practice a certain religion, or for a place of worship to refuse to hire out its facilities for a religious observance of another religion, but it would not allow a Christian baker to refuse to provide services to a same-sex couple. This is because the bakery is solely or primarily engaged in commercial activities. ‘Educational institution’ is broadly defined to capture schools, colleges, universities and other educational institutions at which training is provided.
The explanatory memorandum to the Bill states that the definition of ‘educational institution’ is designed to capture the same religious educational institutions to which section 38 of the Sex Discrimination Act 1984 (Cth) (SDA) applies. This section of the SDA provides that is not unlawful for a religious educational institution to discriminate against certain persons on the basis of that other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy. This provision, along with religious exemptions contained in other current anti-discrimination legislation, is the subject of a separate review by the Australian Law Reform Commission, with a report due to be provided to Commonwealth Government by 10 April 2020.
The effect of the general exception for religious educational institutions, under the Bill, is that they would likely be permitted to preference the employment of staff members who share the religious beliefs of the educational institution, over staff members who do not. For example, if two candidates had applied for the same position at a religious educational institution, it would not be discriminatory for the institution to preference the employment of the candidate whose faith aligned with the particular religion over a candidate of another faith (or lack thereof). Similarly, this exception would likely permit educational institutions to give preferential treatment to applications for admission by students who share the religion espoused by the educational institution.
How would the Bill, if enacted, interact with other anti-discrimination laws?
The explanatory memorandum states that the Bill is intended to fill in perceived gaps in the anti-discrimination body of law in Australia. It intends to further clarify how religious discrimination may occur in public life and, in doing so, the Bill is similar to the already existing Federal anti-discrimination Acts. The Bill expresses an intention to protect the operation of currently existing state legislation in various respects, although it expressly overrides the Anti-Discrimination Act 1998 (Tas), which contains strong anti-vilification provisions.
The Bill includes exceptions for situations in which the Bill may conflict with other laws, such as in relation to conduct in direct compliance with Commonwealth, State and Territory laws and conduct necessary to comply with court and tribunal orders, determinations and industrial instruments.
The Bill also directly overrides Commonwealth, State and Territory anti-discrimination legislation in certain circumstances. For example, the Bill provides that a statement of belief does not constitute discrimination for the purpose of any other anti-discrimination law. This appears to create a hierarchy of protected attributes under anti-discrimination legislation, such that the protection of a religious belief, in this context, would be prioritised over other attributes such as race, sex or disability.
Complaints handling
Other legislation contained in the proposed package of reforms establishes the Office of the Freedom of Religion Commissioner at the Australian Human Rights Commission (AHRC) and introduces a complaints handling process in relation to religious discrimination. Like complaints under other Federal anti-discrimination legislation, complaints of religious discrimination can be referred to the AHRC for conciliation and, if unresolved at the AHRC, a person can make an application to the Federal Court or Federal Circuit Court.
Enshrining the prohibition on religious discrimination at a national level
The Bill, if passed in its current form, will enshrine the prohibition on religious discrimination at the national level and create a stand-alone piece of legislation that addresses religious discrimination. For educational institutions, the Bill attempts to standardise the law (given the multiplicity of piecemeal provisions in Commonwealth, State and Territory laws) and clarify the circumstances in which an institution may prioritise the admission of a student or the employment of a staff member, who shares the institution’s faith, over a person that does not.
Whilst there appears to be broad community support for the proposition that discrimination on the basis of religious belief or activity ought to be prohibited, given the widespread and divergent public commentary on the Bill, there is no clear consensus as to the form or scope that this should take. We will all be watching with interest.
