The Religious Discrimination Bill arrives

After a long wait, the Federal government has released the text of the Religious Discrimination Bill 2021 which is about to be introduced into the Parliament. There has been no general Federal law dealing with detrimental treatment of Australians on the basis of their religious faith and activities, and this is a welcome development, implementing a recommendation of the Ruddock Review which reported in 2018.

The government previously released two “Exposure Drafts” of the Bill (see some comments on those in previous posts, here, and here.) Having promised prior to the last election that he would advance this law, Prime Minister Morrison will now introduce it into the House of Representatives. If passed by the House, the Bill will then need to approved by the Senate, where it seems likely to be referred to (yet another) committee before being voted on there, probably sometime in the New Year.

In this post I will aim to provide an overview of the Bill, and also to indicate briefly where it differs from previous drafts.

The General Principles

In broad terms, the legislation is plugging a serious gap in legal protections in Australia against unjust discrimination. Of the 9 jurisdictions around the country (the States, the Territories and the Commonwealth), 6 of them already prohibit religious discrimination. NSW, SA (except in relation to “religious dress”) and the Commonwealth (apart from some provisions relating to employment in the Fair Work Act 2009) do not have such laws at the moment. So in NSW today, you would be perfectly within your rights to run a café and put up a sign outside saying “We do not serve Buddhists” or “Muslims” or “Christians”. (Jewish and Sikh people are protected under the “ethno-religious” category of the Anti-Discrimination Act 1975 but other religions are not). So as a matter of simple fairness we should have a general law on the topic, and the best thing would be to have a clear law that applies across the country.

The Bill (the “RDB”) provides for this as follows.

The core of the Bill is Part 3, where different types of prohibited conduct are defined: direct discrimination (s 13), indirect discrimination (s 14), discrimination by “qualifying bodies” in imposing restrictions on statements of belief (s 15), and discrimination on the basis of “association” with someone who has a religious belief (s 16).

Part 4 then spells out the various areas of public life where such discrimination is unlawful. Division 2 covers the world of paid work: employment decisions (s 19), commercial partnerships (s 20), qualifying bodies (s 21), registered organisations (ie trade unions, s 22), and employment agencies (s 23). Division 3 deals with other areas: education of students (s 24), access to premises (s 25), goods, services and facilities (s 26), accommodation (s 27), dealings in land (s 28), sport (s 29), and clubs (s 30). There are other prohibitions on seeking information to allow discrimination (s 31), on discrimination in Commonwealth laws and programs (s 32), and on “victimisation” (s 33), which involves treating someone badly because they have made a complaint about religious discrimination. These provisions are broadly the same type of model as found in other discrimination laws around Australia.

However, where there is some difference is in the early part of the Bill, Part 2, which starts out by describing what is not unlawful discrimination. While this arrangement is a bit odd, I think it is designed to send a clear message- that not all “differential treatment” is unlawful discrimination. Sometimes it is important to treat people differently on the basis of religion or belief because that is a relevant distinction.

Every law forbidding unjust discrimination needs to deal with the fact that sometimes making distinctions is useful and right, where those distinctions are made on relevant grounds. Race discrimination law, for example, allows people of a specific race to be engaged as actors to play someone of that race. The same is true of religious discrimination laws, which need to be designed to account for the fact that, while religion is usually irrelevant in employing people in secular occupations, from baristas to barristers, sometimes religious conviction is relevant if the organisation concerned is a religious organisation.

To be clear, this fundamental concept is not new. All of the current Australian laws on religious discrimination already have clear provisions which “balance” the right to freedom from discrimination with the rights of religious groups to operate in accordance with their beliefs. We should not force a Catholic youth group to employ a Hindu leader. These are the sort of protections provided by this law. The Bill provides these protection in two ways. It sets out, in Part 2, some general situations where using religion as a criterion for decision-making is not discrimination. Then, in Division 4 of Part 4, it spells out a number of exemptions to the specific prohibitions in that Part, based on situations that arise in relation to religious bodies.

The Bill starts, then, by setting out some behaviour which will not amount to religious discrimination, in Part 2. In broad terms, this allows religious bodies to operate in accordance with their beliefs (s 7), though there are some extra rules for religious hospitals, aged care facilities, accommodation providers and disability service providers (sections 8 & 9). Sub-section 7(1) provides a very clear explanation of the general policy:

7(1) This section sets out circumstances in which a religious body’s conduct is not discrimination under this Act. Because the conduct is not discrimination, it is therefore not unlawful under this Act in any area of public life, including work, education, access to premises and the provision of goods, services and accommodation. As such, it is not necessary to consider whether the conduct comes within an exception in Division 4 of Part 4. 

RDB, s 7(1)

The condition under which s 7 operates is that the body engages in good faith in conduct which a “person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion”- s 7(2), or engages “in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body”- s 7(4). In either case s 7 makes it clear that this will include “giving preference to persons of the same religion as the religious body”. Just as a political party can “prefer” to employ members of that party in head office, or an environmental lobby group can “prefer” to employ those who share its commitments, so religious bodies can generally “prefer” to employ staff of the same faith, or support causes which match its faith commitments. However, under s 7(6), if faith-based schools are making employment decisions on this basis, they must do so in accordance with a “publicly available policy”. This means that those approaching schools for employment will be able to determine beforehand whether the school has a policy of preference for fellow believers, and so presumably avoid the embarrassment of being turned down on that basis if they don’t meet the requirement.

There are also some additional requirements if the religious body is providing general “social welfare” services to the public. Under ss 8 and 9, religious hospitals, aged care facilities, accommodation providers and disability service providers may “prefer” people of their own faith in employment decisions, but may not generally “prefer” such people in other activities. This makes clear what is generally the practice in any case, that a religious social service provider will usually provide its services to everyone in need, while maintaining its ethos by only engaging staff who share that ethos.

However, under s 10 a religious hospital or aged care facility which “is intended to meet a need arising out of a religious belief or activity of a person or group of persons” may offer those services only to people in a specific group. The example given in a note is that a Jewish or Greek Orthodox provider may “provid[e] services to meet the needs (including dietary, cultural and religious needs) of a minority religious group”. This provision seems designed to operate like similar provisions in other discrimination laws allowing differential treatment or “special measures” to redress problems created by minority status, such as s 8 of the Racial Discrimination Act 1975 (Cth).

Next in the RDB is s 11, which provides (supporting the rights given by s 7) that religious schools may prefer to employ staff who support their religious beliefs, despite any State or Territory laws which undermine that principle. (An ancillary Bill, the Religious Discrimination (Consequential Amendments) Bill 2021 , contains a slightly unusual “contingent amendments” schedule (Sched 2) which means that in particular, if the recently introduced Victorian legislation removing these rights from religious schools in that State commences operation, then the Victorian discrimination law will be directly referenced in s 11. For my comments on this Victorian legislation see my previous post here.)

Section 12 of the RDB then provides that statements of religious belief do not amount to discrimination under the laws governing that topic around the country. This has been attacked in the press, but in itself it is not really clear that this provision changes very much- it is really very rare that mere speech alone would amount to “discrimination” under most laws. There is a separate type of unlawful behaviour involving speech which is prohibited in some, but not all, Australian discrimination laws, often under the label of “vilification”. But the two concepts are different, and s 12 does not explicitly over-ride “vilification” provisions, except in one significant case. The case is the extreme prohibition on speech that causes “offence” under s 17(1) of the Anti-Discrimination Act 4 1998 (Tas.) That law amounts to a severe limit on free speech which goes well beyond most other Australian laws on the topic, and was the basis of an action against a Roman Catholic archbishop for a document circulated to Roman Catholic schools describing the Roman Catholic view of marriage. Under s 12(1)(b) it will be explicitly over-ridden by the Bill. (See here for a paper covering “religious free speech” issues and noting the problems with the Tasmanian law.)

It is important to note, however, the limits on the type of protected “statement of religious belief” under the definition in s 12(2):

(2) Subsection (1) does not apply to a statement of belief: 
(a) that is malicious; or
(b) that a reasonable person would consider would threaten, intimidate, harass or vilify a person or group; or
(c) that is covered by paragraph 35(1)(b). 

RDB, s 12(2)

The reference to s 35 means that a statement that encourages commission of a serious criminal offence is not protected. A “statement of belief” in s 5(1) is defined to include the expression of “a belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of [their] religion”. (Statements by atheists are also protected, so long as they relate in some way to religion.)

Other Religious speech protections

One area which people of faith are well aware of, is that some views they hold are now not popular in the general community. This is especially so where religious views on matters relating to sexual morality are concerned. Should someone be sacked because for religious reasons they don’t support same sex marriage? Should they be disciplined because they say this outside working hours? These are the sort of issues which motivated the so-called “Folau clause” in previous drafts, which was of course based on the well-known circumstances of the termination of employment of footballer Israel Folau. There is now no such clause in the RDB, as despite its merits on other grounds, it had become too politically controversial to support.

A case of this sort might still be able to be dealt with as “indirect discrimination” under s 14, when it would be open to the employer to show that a restriction on religious speech outside work was “reasonable”. However, there is another provision which deals with a similar issue relating to “qualifying bodies”, in s 15. A “qualifying body” is defined in s 5(1) to mean a body or authority whose permission is needed to practice a profession or occupation. This would include, for example, authorities that register doctors and other health professionals, or lawyers, or engineers. If such a body tries to impose on someone, as a condition of their authorisation, a rule about their conduct that “has, or is likely to have, the effect of restricting or preventing the person from making a statement of belief other than in the course of the person practising in the relevant profession, carrying on the relevant trade or engaging in the relevant occupation”, that will be unlawful discrimination under s 15, unless the rule is an “essential requirement”.

An example of a situation where this has arisen in the past can be seen in the UK case involving social work student Felix Ngole, who was removed from his social work course on the basis of comments he made opposing same-sex marriage on a social media site which was not in any way connected with his social work studies. (See here for my comments on the case.) Of course there will still be room for debate about what is an “essential requirement” for a profession, but at least this provision may provide some food for thought when professional bodies purport to lay down conduct requirements penalising members of their profession speaking on controversial issues outside their professional context.

Again, s 15 provides (as s 12 does) that it does not protect “statements of belief” which are malicious, threatening, intimidating, harassing or vilifying, or urging commission of serious offences. 

Exceptions and balancing clauses in Part 4, Div 4

Division 4 of Part 4 provides a number of “exceptions” balancing the specific prohibitions in other divisions of that Part, with competing values. Section 35 makes it clear that it does not amount to unlawful discrimination to dismiss someone on the basis of their religious statements if those statements encourage the commission of a serious criminal offence. A “serious offence” is an offence involving harm (within the meaning of the Commonwealth Criminal Code), or financial detriment, that is punishable by imprisonment for 2 years or more under a law of the Commonwealth, a State or a Territory.

Other provisions allow continued operation of religious charitable trusts (s 36), and acting in what would otherwise be discriminatory ways if this is required by Commonwealth law, for national security purposes, or to comply with State or Territory law (unless that law is prescribed by the regulations) (s 37).

Other exemptions in Div 4 include:

  • allowing workplace discrimination if religious belief is an “inherent requirement” for a position (s 39);
  • allowing “accommodation discrimination” in religious camps and conference sites if such is done in good faith for religious reasons in accordance with a publicly available policy (s 40)- this would seem to allow, for example, a Christian campsite which had announced such a policy to decline a booking from a Muslim group planning to use the site to further the teaching of Islam;
  • allowing clubs and voluntary bodies to operate if their membership is restricted to persons of a particular religion (ss 42, 43).

Exemptions from the operation of the Bill can be granted under Subdivision D of Division 4, by the Human Rights Commission for temporary periods under conditions they may impose.

Religious Discrimination Commissioner

The Bill, in Part 6, creates the new position of “religious discrimination commissioner” within the Australian Human Rights Commission to work with age, disability, sex and race commissioners. The Human Rights Commission has had a gap in its coverage of religious freedom and this new role should provide some coverage in that area.

Does the Bill undermine LGBT rights?

The Bill has been attacked on this basis. Does it privilege religious people above LBGT persons? No. There are important questions to be considered about “sexual orientation” discrimination and when a religious group should be able to act on its moral beliefs in that area. But those issues are not directly raised by this Bill. So the question as to whether a religious school can continue to choose not to employ an openly gay teacher on the basis of their sexual orientation (as allowed at the moment under s 38 of the Sex Discrimination Act 1984 (Cth)) is not resolved by this Bill. That will be addressed as part of a reference of the issues to the Australian Law Reform Commission, which is due to report one year after the RDB is enacted.

Does the Bill authorise hateful speech by doctors and nurses?

Some of the examples given in the press in the last few days are outlandish and not based on reality. So, would this Bill change the situation if a nurse said to a patient that the patient’s illness was caused by Satan and they need to repent? 

First, this is a completely fanciful example! What health provider would say such a heartless thing?

Second, while it is a stupid thing to say, the law does not currently make that unlawful! Not everything that is heartless and ridiculous is unlawful. And this Bill will not change the situation!

Perhaps the example might be changed: would the nurse’s employer be able to sack her for saying this sort of thing? Well, again, we haven’t seen the Bill yet but it seems pretty likely that they would, even if the Bill were passed. If the nurse made a claim for “religious discrimination” after being sacked, it would most likely be a claim for “indirect discrimination”, and such claims won’t succeed where the action of the employer is “reasonable”. It would be perfectly reasonable to tell religious employees not to upset patients by sharing their religious views when they have not been asked about them.

Or take this example from an ABC piece on the Bill:

“When a waiter says to a queer woman of faith in a cafe that her relationship is an abomination against God, well these type of statements — which could arguably constitute discrimination today and constitute a statement of belief — would be protected under the law with this bill,” Ms Brown said.

The most that can be said in this piece is that this statement “could arguably constitute discrimination”! Actually an offensive remark like this may be unlawful in Tasmania, but it would not amount to actual discrimination anywhere else in Australia. So the Bill will change nothing in most of the country, even if it did somehow apply to this statement.

Another Bill released as part of this “package” of amendments is the Human Rights Legislation Amendment Bill 2021 . Apart from adding some general statements of principle to human rights laws, this Bill makes two significant amendments:

  • It amends the Charities Act 2013 (Cth) to provide in new s 19 that an organisation which “engages in or promotes activities advancing, expressing or supporting a view of marriage as a union of a man and woman to the exclusion of all others, voluntarily entered into for life”, is deemed to be of public benefit and not liable to have its charitable status revoked after same-sex marriage has now been introduced;
  • It adds a new s 47C to the Marriage Act 1961 (Cth) to provide that a religious school is not obliged to make its premises available for the solemnisation of a same-sex marriage.

Conclusion

Overall, the Bill makes a significant contribution to the protection of religious freedom in Australia. It prohibits detrimental treatment of Australians generally on the grounds of their religion, recognises the important principle that usually religious organisations ought to be able to conduct their affairs in accordance with their faith commitments (while including clauses to balance other rights), and provides some protection against the worst excesses of State laws undermining the principles of freedom of religious speech and freedom of association. It establishes the role of an official “champion” of these important principles. While not perfect, it ought to be supported by all parties in Parliament as a very good start.

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