On 23 November 2021, the third draft of the federal government’s long awaited Religious Discrimination Bill 2021 (Cth) (Federal Bill) was released. Some of the more contentious provisions had been removed since the first draft of the bill was released in 2019; however, this was not enough to get it over the line this year, with the bill being put on hold until the next parliamentary sitting date in February 2022.
In this article, we provide an overview of the evolution of the Federal Bill to date, its current status and what it might mean for employers particularly given that the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) (Victorian Bill) was passed last week. The Victorian Bill is expected to receive royal assent in the next few weeks, upon which it will then amend the Equal Opportunity Act 2010 (Vic). Many are awaiting with interest whether the legislation will permit organisations to express and apply religious views in a lawful manner that may otherwise be unlawful discrimination under current law, especially in respect of recruitment and employment decisions.
Background
On 22 November 2017, the then Prime Minister Malcolm Turnbull announced the appointment of an Expert Panel to examine whether Australian law adequately protects freedom of religion. That was at the time of the passing of marriage equality laws, with then Treasurer Scott Morrison stating that the Australians who voted against marriage equality were seeking assurances from the government that their views were not under threat. Following a nationwide consultation process, the Religious Freedom Review: Report of the Expert Panel was released on 18 May 2018. While the Expert Panel “did not accept the argument, put by some, that religious freedom is in imminent peril” it did “accept that the protection of difference with respect to belief or faith in a democratic, pluralist country such as Australia requires constant vigilance” (Report at [1.6]), and recommended new legislative protections against religious discrimination. In response, the Morrison government committed to a ‘Religious Discrimination Act’.
The Religious Discrimination Bill 2019 (Cth) was first released in late 2019, followed by a second draft in early 2020. Both drafts of the bill were heavily criticised. Some religious groups were concerned that it did not give adequate protections to people of faith, whilst some human rights groups were concerned that the bill did not strike the right balance between protecting religious and other freedoms.
What’s in the current draft of the Federal Bill?
The Federal Bill prohibits discrimination on the ground of ‘religious belief’ or ‘activity’ in a range of areas of public life, including work, education, access to premises and the provision of goods, services and accommodation. Religious belief or activity is defined as the ‘holding or not holding of a religious belief or engaging, not engaging or refusing to engage in religious activities. This part of the Federal Bill offers similar protections that currently exist under federal law for race, sex, disability and age and most state and territory anti-discrimination which specifically offers some religious protections.
However, while the Federal Bill states that its main purpose is to prohibit discrimination, it proposes wide exemptions to discriminatory statements and practices that religious bodies in particular can seek to rely on. Religious bodies are defined to include educational facilities, registered charities and any other kind of body other than a body that engages solely or primarily in commercial activities. Under the proposed legislation, they may able to act in accordance with their faith in certain situations without the conduct being considered unlawful discrimination. Key elements of the proposed legislation are:
Statements of belief
The Federal Bill proposes to protect what are termed “statements of belief”. A statement of belief is a statement:
- of a religious belief held by a person;
- made, in good faith, by written or spoken words or other communication (other than physical contact) by the person; and
- of a belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.
Statements of belief also include beliefs held by a person who does not hold a religious belief relating to a belief that the person genuinely considers to relate to the fact of not holding a religious belief.
Currently, under Victorian law, a religious body or school can discriminate on the basis of certain attributes a person has (that is otherwise protected) if the discrimination accords with the doctrines, beliefs or principles of the religion or is reasonably necessary to avoid injury to the religious sensitivities of adherents to the religion. The Federal Bill proposes to expand and override this religious exemption so that any person (regardless of whether they are affiliated with a religious body or school) can make a ‘statement of belief’ that would otherwise be considered discriminatory. Currently, a statement may amount to unlawful discrimination and the effect of the Federal Bill, once enacted, will be to protect that statement against characterisation as unlawful discrimination. This is particularly significant in Victoria, where the State government has recently passed the Victorian Discrimination Bill which intends to narrow the protections that religious bodies and organisations can rely on. Under the Victorian Discrimination Bill, any discriminatory conduct by religious bodies and religious organisations on the basis of a person’s sexual orientation, lawful sexual activity, marital status, parental status and gender identity must be reasonable and proportionate in the circumstances.
Click here for a more in-depth overview of the Victorian Discrimination Bill.
There are some limitations to what kinds of statements will be protected under the Federal Bill. For example, statement of belief will not be protected if it is ‘malicious’ or if a ‘reasonable person’ would consider it would threaten, intimidate, harass or vilify a person or group. However, many academics and public commentators have expressed concern that the measures could wind back important protections for LGBTQIA+ persons, women, people with disabilities and even people of faith.
Religious organisations will be able to preference or prioritise the employment of persons of a particular faith
Under the Federal Bill, religious entities would be able to implement employment policies that ensure all employees are of a particular faith so long as that conduct is in accordance with a publicly available policy.
The Bill provides that it would not be discrimination for a religious body to engage, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents to the same religion as the religious body. The Bill gives an example of a religious primary school requiring all of its staff and students to practice that religion, if such a requirement is necessary to avoid injury to the religious susceptibilities of people of that religion.
This replaces the current, objective test under Victorian law outlined above (i.e. the discrimination must be reasonably necessary to avoid injury to the religious sensitivities of adherents to the religion in order to be permitted) and replaces it with a more subjective requirement that the discrimination be in good faith. This is contrary to the current position under Victorian anti-discrimination legislation that motive is irrelevant to determine if discrimination is unlawful.
What happens next?
Federal parliament adjourned for the year without a vote on the Federal Bill. In anticipation of a federal election next year, the passage of the Federal Bill is likely to be closely watched.
How Moores can help
What constitutes discrimination is a constantly evolving issue, and the state of the law in respect of religious discrimination is currently uncertain. Moores has extensive experience in assisting faith-based organisations working across the education, disability, health and aged care sectors comply with complex discrimination laws and respond to discrimination claims.
For more information or expert advice regarding discrimination matters, please do not hesitate to contact us.