Two committees of the Australian Federal Parliament examining proposed legislation on religious discrimination handed down their reports on Friday 4 February, 2022. Both committees recommended that the Bills introduced in November 2021 be passed by the Parliament, with some minor amendments. The report of the Parliamentary Joint Committee on Human Rights (“PJCHR”) can be found here, and that of the Senate Legal and Constitutional Affairs Legislation Committee can be found here.
While each report mentions a number of objections to the legislative package, it is significant that these cross-party committees both end up by recommending the enactment of the laws in substantially their current form. In my view this is an encouraging sign, that may signal that the legislation might find sufficient support to pass the Parliament before an election is called this year.
(There were “additional comments” made by ALP members of both Committees, but they did not formally dissent from the majority recommendations. There was a formal dissent from the Greens Senator Janet Rice to both reports, joined in the Senate Committee by fellow Green Senator Lidia Thorpe. Liberal Senator Andrew Bragg provided “additional comments” to the Senate Committee report without formally dissenting.)
In this post I will briefly summarise the recommended amendments put forward by the committees, and some other issues that have been raised this week following events at Citipointe college which I discussed in a previous post.
Parliamentary Joint Committee on Human Rights
This committee is comprised of members from both house of Parliament, and its remit is to consider human rights aspects of legislation. It was tasked by the Attorney-General pursuant to section 7(c) of the Human Rights (Parliamentary Scrutiny) Act 2011 with considering the legislative package. Freedom for Faith, a “religious freedom thinktank” on whose Board I serve, made a submission to the inquiry which I drafted with input from other Board members, and I appeared before it to provide oral evidence.
The report is lengthy, and contains a detailed rehearsal of arguments on most issues, but for the purposes of this comment I will focus on the final recommendations made by the majority. There were 12.
3.88 The committee recommends that, consistent with other anti-discrimination legislation, clause 14 of the Religious Discrimination Bill 2021 be amended to require that in determining if a condition, requirement or practice imposed on a person resulted in indirect discrimination, the person who imposes, or proposes to impose, the condition, requirement or practice has the burden of proving it was reasonable.
I support this recommendation, and it formed one of the suggestions made in the Freedom for Faith submission, at p 15. This is a somewhat technical point, relating to whether a claim of “indirect discrimination” can be made out. In such a case the aggrieved person has been treated detrimentally on some basis that on its face is not based on their religion, but the effect of the treatment is to impose a detriment on them that others would not suffer. One example may be a Jewish employee required to work on the Sabbath by apparently neutral rostering arrangements, when they could have easily been accommodated. The employer here would only be able to escape being found guilty of indirect discrimination if it can be shown that the requirement was “reasonable”. Such provisions are present in other discrimination laws, but as we pointed out in all such laws the burden of showing that the detrimental requirement is reasonable falls on the employer, not the employee. We put it this way:
The second issue with s 14 is that it seems, as it stands, that the onus of proving that a condition etc is “not reasonable” (or whatever phrasing is adopted) lies with the aggrieved person. As others have noted, this is contrary to the way that the onus is framed in the Sex Discrimination Act 1984 (Cth) s 7C, which provides that “the burden of proving that an act does not constitute discrimination because of section 7B [the “reasonableness” provision] lies on the person who did the act”. A similar statement is found in s 6(4) of the Disability Discrimination Act 1992 (Cth), and s 15(2) of the Age Discrimination Act 2004 (Cth). It is no doubt for these reasons that the Second Exposure Draft of the RDB contained a specific provision putting the onus of proof that a condition etc was “reasonable” on the person imposing that condition. This provision should be restored to the RDB.
The committee has accepted this recommendation, which was made by a number of others.
Interestingly, in the Senate committee report at para 4.87 we read that the Attorney-General’s Department “confirmed that the burden of proof provisions had been omitted in error from the current version of the bills”. So it seems pretty clear that this recommended amendment at least will be accepted by the government.
3.89 The committee recommends that paragraph 39(2)(b) of the Religious Discrimination Bill 2021 be amended to refer to the inherent requirements of the ‘particular position’, rather than the inherent requirements of the ’employment’.
This recommendation picks up some critique of the language of the current s 39(2), which provides an exception to the usual ban on discrimination in employment where it is necessary on the basis of “the inherent requirements of the employment”. See para 3.45 of the report, where the Australian Chamber of Commerce and Industry note that the language should be more precise. This seems a sensible recommendation which should be adopted.
3.90 The committee recommends that the government consider including a legislative note in the Religious Discrimination Bill 2021 that states that reasonable management action conducted within a reasonable manner will not constitute unlawful discrimination, and provide examples in the explanatory memorandum of the type of action that would likely constitute reasonable management action.
This recommendation again flows from concerns expressed by employers. One example given is of an employee who continues to leave religious pamphlets on the desks of other employees, despite being told not to do so (see para 3.84). If this employee were disciplined by his employer, could he claim that he was being indirectly discriminated against under cl 14 of the Bill? (Assuming that an employee leaving political pamphlets or other unwanted literature would also have been similarly disciplined, such an action would not be “direct” discrimination, but it might be “indirect”.) The answer to this under the Bill is that under cl 14(1)(c) it would be fairly easy for the employer to show that it was “reasonable” to give such a direction to avoid harassment of employees.
A “legislative note” to provide an example of what would amount to “reasonable” behaviour may be hard to draw up, however. Still, stating that “reasonable management action conducted [in] a reasonable manner” would be one type of “reasonable” action under cl 14(1)(c) would seem to be OK, so long as the word “reasonable” had to be read in its context in cl 14 and was not thought to simply mean “whatever the manager feels is reasonable”. In my view this is one recommendation that could be dropped, but it would probably not do any real harm.
3.91 The committee recommends, consistent with other anti-discrimination legislation, that Division 4 of Part 4 of the Religious Discrimination Bill 2021 be amended to include a provision that the Australian Human Rights Commission and Attorney-General, in exercising powers under clauses 44 and 47, must include with the explanatory materials accompanying the instrument the following information:
• the Commission or Attorney-General’s findings on material questions of facts in relation to the decision;
• the evidence on which those findings were based;
• the reasons for the decision; and
• the fact that an application may be made to the Administrative Appeal Tribunal for a review of the decision.
3.92 The committee recommends that subclause 69(1) of the Religious Discrimination Bill 2021 be amended to provide that the Australian Human Rights Commission can only delegate the power to make an exemption to a Commissioner or an SES member of staff of the Commission.
3.93 The committee recommends that clause 47 of the Religious Discrimination Bill 2021 be amended to provide that the Australian Human Rights Commission may vary or revoke an exemption by notifiable instrument, but the Attorney-General may only vary or revoke an exemption by disallowable legislative instrument (ensuring there is parliamentary oversight of any political decision to vary or revoke an exemption made by the Commission).
Recommendations 4, 5 and 6 are technical changes which relate to the power of the AHRC and the Attorney-General to issue “exemptions” from the Act. These sort of powers are not used very regularly and the suggested amendments seem sensible.
4.121 The committee recommends that the explanatory memorandum to the Religious Discrimination Bill 2021 be amended to provide clarification as to the applicability of the bill to in-home care services, particularly in relation to aged care and disability services.
To be frank, this is a somewhat obscure recommendation, in that I cannot find any extensive discussion of “in-home care service” elsewhere in the report. I wonder whether there was meant to be such discussion which was omitted. The placement of the recommendation in para 4.121 is in a section of the report (from paras 4.116-4.120) where the committee affirms its support for clauses 7-10 of the Bill, which allow religious groups generally to operate in accordance with their faith commitments. Within that part of the Bill, however, there are additional requirements imposed by cl 8 on religious bodies which operate an “aged care facility” (see cl 8(a)). Under cl 9 such bodies may only discriminate in choice of staff if they have a publicly available policy in an approved form which explains how they will do so.
It may be that what the committee was concerned about was that some religious groups would offer aged care services “in home” and not in a dedicated “aged care facility”, and hence not be subject to the rules in clauses 8 and 9. It would seem likely to me that almost all religious bodies offering in-home care would do so while at the same time running a “facility”, and hence they would in any case be subject to the rules set out. But it would be sensible for the explanatory memorandum to clarify that the rules applying to religious bodies running such facilities, apply when they offer such services in-home.
I am not so sure any such explanation is needed for disability service providers, as under cl 8(d) such bodies are simply defined as those which “provides services to people with disability”, without reference to any “facility” as such. But the explanation could extend to such groups as well if thought appropriate.
5.109 The committee recommends that subclauses 7(6), 7(7) and 9(3) of the Religious Discrimination Bill 2021 be amended to set out what is required to be included in a publicly available policy, namely: that the policy must outline the religious body’s position in relation to particular religious beliefs or activities, and explain how this position will be enforced by the religious body. These subclauses should also provide that the minister may, by legislative instrument, determine any other requirements ancillary to this, which the policy must comply with.
One of the key measures proposed in the Bill is that in a number of circumstances religious bodies which wish to restrict employment of staff on the basis of religion must state that this is the case in a “publicly available policy”. The relevant Minister is currently given power to “determine requirements” for such a policy.
A number of submissions expressed concern that the breadth of this wording might in theory allow a Minister to set down substantive religious doctrines which are “acceptable” to the government- obviously a bad outcome. This recommendation of the committee requires the Bill itself to specify the sort of matters that the policy must cover and that any additional requirements laid down by the Minister will only be “ancillary”. This seems a worthwhile recommendation.
6.135 The committee recommends that the government consider providing further explanation and examples with respect to clause 12 in the explanatory memorandum accompanying the Religious Discrimination Bill 2021, to provide greater clarity about what sort of statements or actions may, or may not, be considered to not constitute discrimination.
Clause 12, dealing with “statements of belief”, has proven one of the most controversial parts of the Bill. The committee states that in general it supports the provision:
The committee considers it important that all people in Australia be able to exercise their right to freedom of expression. The right to freedom of religion is strongly linked to the right to freely express and manifest one’s religious beliefs. Religion is a fundamental part of Australia’s strong and diverse social fabric, and a person’s religious belief, or lack of belief, is often of significance to them to their identity, sense of self and the manner in which they live their lives.PJCHR Report, para 6.128
They note, however, that there is still confusion over the effect of cl 12, and what statements would, and would not, be excluded from protection by cl 12(3) as malicious, threatening, intimidating, harassing or vilifying, or encouraging commission of a serious criminal offence. As they correctly point out, a number of the examples used in recent discussions of statements that would be protected by cl 12 are fanciful:
The committee notes that many submitters and witnesses gave examples of statements that would be protected by clause 12 – yet the committee considers few of these statements would be protected in reality…there are few statements that, in and of themselves, would currently be considered to be discriminatory.PJCHR Report, para 6.130
In particular it is worth stressing that clause 12 only provides protection against “discrimination” claims- as Mark Sneddon from the Institute for Civil Society has pointed out:
It would not protect statements of belief from employer sanction. It does not protect statements of belief from being a breach of a contract of employment. It does not protect statements of belief from being contrary to a code of conduct by an employer. It will not protect statements of belief from regulation by professional bodies. So the suggestion [that] section 12 protects statements of belief and unbelief left alone, as if it protects them from every consequence and sanction, is completely wrong, and I think it misled a number of submitters.Quoted in PJCHR report, at para 6.56.
With these things in mind, provision of further examples in the explanatory memorandum may be helpful.
6.136 The committee recommends guidelines relevant to qualifying body conduct rules in clause 15 are developed in consultation with relevant professional bodies.
Clause 15 provides additional protection against religious discrimination to someone who relies on accreditation from a “qualifying body” (such as medical or legal associations), against those bodies imposing a rule that would prevent them 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.Religious Discrimination Bill, cl 15(1)(b).
The report refers to an example provided in the Freedom for Faith submission, the case of Felix Ngole (discussed in this previous post.) Mr Ngole was removed from a social work course based on 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 para 6.94 of the committee report.) While the committee does not oppose the inclusion of cl 15, it recommends guidelines for application of the clause be drawn up in consultation with professional bodies. This seems reasonable. Presumably such guidelines might be a task for the new Religious Discrimination Commissioner appointed under cl 52. My only comment would be that the Commissioner will need to make sure that any “guidelines” do not undermine the important policy of religious freedom expressed in cl 15.
6.137 The committee recommends that the government give consideration to amending the explanatory memorandum, or clause 14 of the Religious Discrimination Bill 2021 to add a legislative note, to clarify that it may be indirect discrimination for a qualifying body to impose a qualifying body conduct rule that restricts or prevents a person from expressing their religious beliefs, unless the qualifying body can demonstrate the rule is reasonable.
It seems that some people have expressed concern about how cl 15 relates to cl 14. Arguably one could say that cl 15 is a specific example of a type of “indirect discrimination” that might also be actionable under cl 14. The benefit of cl 15 is that it makes it clear what will amount to “reasonable” behaviour on the part of a qualifying body seeking to impose restrictive religious speech rules- that is, the body will need to show that their speech rule “is an essential requirement of the profession, trade or occupation” (cl 15(2)).
However, cl 15(4) says that it “does not limit” cl 14. Could an indirect discrimination claim be brought by someone subject to a restrictive religious speech rule, even if the rule could be shown to be an “essential requirement” of the profession etc? This seems somewhat unlikely, as it would arguably be the case that the “essentiality” of the requirement would automatically make the body’s action “reasonable” under cl 14(1)(c). Still, it is not clear that this would always be the case. I think the recommendation to clarify that cl 14 may still apply even if cl 15 is relevant is sensible.
6.138 The committee recommends that, following implementation of the recommendations in this report, the Religious Discrimination Bill 2019, the Religious Discrimination (Consequential Amendments) Bill 2021, and the Human Rights Legislation Amendment Bill 2021 be passed.
This is a recommendation I support, with two minor caveats: (1) I still think, as the Freedom for Faith submission spells out at fn 7 on p 8, that there is a drafting error in Consequential Amendments Bill which should be corrected; (2) I have now come to the view that there are some constitutional issues around the wording of clauses 11 and 12, which should be corrected in line with the recommendations of Professor Nicholas Aroney accepted by the Senate committee. I turn briefly, then, to the Senate Committee report.
Senate Legal and Constitutional Affairs Legislation Committee
The role of this committee is to consider legislation that is referred to it by the Senate. The committee report gives a helpful overview of the legislation and records similar arguments for and against the package as those which were considered by the PJCHR report. In the interests of brevity, I will only comment on the substantive recommendations that the Senate Committee makes. There are only two:
5.12 The committee recommends that the Commonwealth government considers the issues raised in relation to clauses 11 and 12 of the Religious Discrimination Bill 2021, with particular regard to the: concerns of Professor Anne Twomey; and drafting amendments proposed by Professor Nicholas Aroney.
The particular concerns which the committee wanted to highlight are around the constitutional validity of the two provisions of the Bill which directly over-ride contrary State laws. To summarise, the difficulty arises because of the wording of s 109 of the Constitution, which provides that a valid Commonwealth law will make an inconsistent State law inoperative. But s 109 does not directly give the Commonwealth a power to determine how a State law should be interpreted, and it is arguable that the current form of clauses 11 and 12 could be read as doing this.
In response to this problem (identified by two of Australia’s top constitutional scholars, Professor Nicholas Aroney and Professor Anne Twomey), Professor Aroney has suggested a form of words which should achieve the same result but will likely be constitutionally valid. His redraft of clauses 11 and 12 is set out at paras 4.24-4.27. My view, in short, is that I am happy to defer to Professor Aroney’s expertise in this area, and agree that his proposed redraft, or something similar, should be adopted.
5.13 Subject to Recommendation 1, the committee recommends that the Senate passes the bills.
The Bills as they stand are not perfect, and there are some suggestions made by Freedom for Faith and others that have not been adopted. But in the current circumstances, I echo the sentiments of both committees, that with minor amendments as noted above, the Bills should be enacted.
My recent post on events related to Citipointe College, which had asked parents to agree to an extensive new contract defining Christian theological stances they would be expected to agree to, has been overtaken by later events. Following adverse publicity, the school withdrew the proposed contract, although reaffirming (as they should) their right to operate the school in accordance with their faith commitments. However, the events seem to have led to the Prime Minister agreeing to revisit the question of an amendment to s 38(3) of the Sex Discrimination Act 1984, which allows faith-based schools to apply their religious beliefs in connection with student activities, to ensure no student is expelled on the grounds of their sexual orientation alone.
As has been pointed out before, the question of sexual orientation discrimination by religious schools is not dealt with under the Religious Discrimination Bills. It may be that an amendment will be moved as part of the passage of the RD Bills in the coming week. If so, it is to be hoped that it will be one which still allows faith schools to apply their religious ethos in running those schools.