I am happy to present a guest post today from Associate Professor Mark Fowler, raising more issues of concern from a religious freedom perspective with the recently released proposed Anti-Discrimination Bill 2024 . Dr Mark Fowler is Principal, Fowler Charity Law, Adjunct Associate Professor, University of Notre Dame, School of Law, Sydney and an External Fellow at the Centre for Public, International and Comparative Law, University of Queensland.

The concerns can be broadly grouped as follows:

1. The Bill’s exception for employment by religious institutions would enact the most restrictive regime in Australia;
2. The Bill will require religious institutions to provide services against their religious beliefs;
3. The imposed ‘duty to eliminate discrimination’ will require religious institutions to proactively engage in activities that do not conform to their religious beliefs; and
4. The Bill fails to protect religious individuals from discrimination when they engage in collaborative effort with fellow believers. 

The Bill implements various (but not all) of the recommendations of the Queensland Human Rights Commission’s (QHRC) Building Belonging Report, released in September 2022¹. If enacted the Bill would legislate the most restrictive regime for religious institutions and religious schools in Australia. To illustrate, it would prevent a church from disciplining a Bishop or Imam who engaged in extra-marital affairs, whether heterosexual or homosexual, or even where they engaged in prostitution. Although the Government states that the proposal responds to the QHRC’s concern that the current law is ‘complicated and difficult to apply’, in my view the Bill would vastly increase complexity and uncertainty for both religious institutions and those with whom they engage. 

Employment for Religious Institutions and Religious Schools

The Bill proposes a wholesale reform of the law governing the employment practices of religious institutions and schools. A ‘religious body’ is defined to include both religious institutions (such as churches, synagogues, mosques, and other places of worship) and also religious schools². The Bill thus proposes to equate the exemptions for religious bodies and schools. 

Clause 61 of the Bill proposes an exemption for the ordination or appointment of priests and ministers and for their training and education. The exception also includes the novel notion of ‘other religious role’. This notion will not extend to administrative or governance positions that do not involve the ‘propagation’ of the faith. Clause 61 also exempts the selection of persons ‘to perform functions in relation to, or otherwise participate in, any religious observance or practice.’ 

However, separate clause 29 sets out the requirements that apply ‘in relation to work’ in religious institutions and schools. ‘Work’ is defined to include employees, independent contractors and volunteers. Here the proposal is that religious bodies and schools may only discriminate on the grounds of religious belief or religious activity in relation to the selection and dismissal of workers if: 

• participation in the teaching, observance or practice of the religion concerned is a genuine occupational requirement of the work; and 

• the other person cannot satisfy the genuine occupational requirement because of the other person’s religious belief or religious activity; and

• the discrimination is reasonable and proportionate in the circumstances. 

The Government clarifies that ‘discrimination on the basis of a protected attribute other than religious belief or religious activity will not be permitted under this exception³.’ It therefore states that the proposal ‘narrow[s] the grounds on which a religious body can discriminate in the area of employment to religious belief and activity⁴’.

In this respect the Queensland Government proposal differs from the Victorian law on which it is said to be based. The Victorian Government has clarified that a religious institution or school may discriminate on any ground provided that the reason for the discrimination is the inconsistent religious belief of the prospective employee or employee in question⁵. Victorian law does not ‘narrow the grounds on which a religious body can discriminate’. The proposed Queensland law is much more limited than the Victorian law because it permits the religious institution or school to only discriminate on the basis of the protected attribute of religious belief or activity where the person has an inconsistent belief or engages in an inconsistent religious activity. Under the Queensland proposal, an act of discrimination cannot relate to any of the other protected attributes, which include ‘gender identity’, ‘relationship status’, ‘sex’, ‘sex work activity’ and ‘sexual orientation’.

The drafters claim that the Bill’s treatment of religious institutions is consistent with Victorian law⁶. With respect, they appear to have misunderstood the effect of that law. Given maintaining consistency with Victorian law appears to be a paramount motivation, detailed consideration of that law is warranted. The Victorian Equal Opportunity Act 2010 was recently amended by the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) to introduce new section 82A concerning religious bodies:

                        82A Religious bodies-employment

(1) A person may discriminate against another person in relation to the employment of the other person in a particular position by a religious body if—

(a) conformity with the doctrines, beliefs or principles of the religious body’s religion is an inherent requirement of the position; and

(b) the other person cannot meet that inherent requirement because of their religious belief or activity; and

(c) the discrimination is reasonable and proportionate in the circumstances.

(2) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining the inherent requirements of a position for the purposes of subsection (1)(a).

(3) This section does not permit discrimination on the basis of any attribute other than as specified in subsection (1).

An exception in equivalent terms is provided for religious schools at new section 83A. As Minister Hutchins clarified on Hansard, to the extent that the amended Victorian Equal Opportunity Act 2010 permits religious schools and educational institutions to continue to maintain their religious ethos in respect of their employment practices, institutions must now satisfy a three-fold test: 

conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position, the person cannot meet that inherent requirement because of their religious belief or activity, and the discriminatory action is reasonable and proportionate⁷.

It is important to note that the chapeaus to subsections 82A(1) and 83A(1) extend the sections to any form of discrimination under the Act when they state: ‘A person may discriminate …’. Both sections are to be contrasted, for example, with the exemption in respect of students within religious educational institutions contained at subsection 83(2), which only pertains to acts performed ‘on the basis of a person’s religious belief or activity’, and which the Minister clarified is intended to not apply to acts performed on the basis of any other attribute. Sections 82A and 83A thus contemplate the scenario that where an employee has an inconsistent religious belief, this will negate consideration of any other protected attribute. In effect, a person’s inability to meet an inherent requirement ‘because of’ their ‘religious belief or activity’ will override consideration of any other protected attribute. To the extent that non-religious actions can be relevant, they would only be relevant to the extent that they demonstrate the absence of a religious belief (for example where non-religious actions determinatively conclude that the person no longer shares the religious belief of the institution or school).

That such is the result under the section was clarified by the Minister in the following two statements in the Second Reading Speech for the Bill introducing the provisions:

A person being gay is not a religious belief. A person becoming pregnant is not a religious belief. A person getting divorced is not a religious belief. A person being transgender is not a religious belief. Under the Bill, a religious body or school would not be able to discriminate against an employee only on the basis that a person’s sexual orientation or other protected attribute is inconsistent with the doctrines of the religion of the religious body (emphasis added). 

However, the Minister then goes on to note: 

Many religions have specific beliefs about aspects of sex, sexuality, and gender. For example, some religions believe marriage should only be between people of the opposite sex. If a particular religious belief about a protected attribute is an inherent requirement of the role, and a person has an inconsistent religious belief, it may be lawful for the religious organisation to discriminate against that person.

As the Minister said ‘a person may discriminate’ where the three elements to the exemption at section 83A are satisfied, being:

1. conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position, 
2. the person cannot meet that inherent requirement because of their religious belief or activity, and
3. the discriminatory action is reasonable and proportionate⁸.

On that analysis, the Consultation Paper is in error in positing that clause 29 of the Queensland Bill reflects the Victorian model. On the above analysis the Victorian model permits a religious institution or school to select persons on the basis of religious faith, where they have an inconsistent religious belief, regardless of the presence of any protected attribute. In Victoria the relevant consideration is whether the person has an inconsistent religious belief or engages in an inconsistent religious activity. 

The following example provided by the Queensland Government in the accompanying Consultation Paper – Exceptions for Religious Bodies illustrates what it considers to be the position as a result of clause 29: 

Faith-based schools, for example, will be able to discriminate on the basis of religious belief or religious activity when appointing staff if the teaching, observance or practice of a religion is a genuine occupational requirement of the role. However, discrimination based on other protected attributes such as sexual orientation or relationship status will not be permitted in any employment decisions⁹.

This is inconsistent with the Victorian provisions, as outlined above. Moreover, the example in the Queensland Consultation Paper is not limited to schools, it applies equally to churches, synagogues, mosques, and other religious institutions. As a result, where the duties of a religious leader are ‘work’ under the Bill, a religious institution could not ensure fidelity to its beliefs where one of its leaders publicly engaged in an extra-marital affair (whether heterosexual or homosexual) or undertook a gender transition or engaged in sex work.

How does this proposal interact with clause 69 permitting religious institutions and schools to ordain and train ministers of religion? The same distinction between an exception for ordination and training of priests and the exception for work is made in Victorian law. The Queensland Government has indicated that it considers its proposal to bring ‘Queensland broadly in line with anti-discrimination laws in … Victoria¹⁰.’ Again, close analysis of the Victorian provisions is warranted. 

Section 82(1) of the Victorian Equal Opportunity Act 2010 creates an exemption that relates to ‘the ordination or appointment of priests, ministers of religion or members of a religious order’ and their ‘training or education’. Section 82(1) also extends to ‘the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice’. However, the section only applies to the acts of ‘ordination or appointment’, of ‘training or education’ or ‘selection or appointment’. It does not extend to the employment of those persons, as the Explanatory Memorandum accompanying the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) clarified: 

This Bill does not change the general exemptions that exist for religious bodies in relation to the ordination or appointment of priests, ministers, rabbis, imams or other members of a religious order, the training or education of people seeking to be ordained to those positions, or selection, or appointment of individuals to participate in religious practice or observance in s 82(1) of the Equal Opportunity Act 2010.

However, the intention of the amendments is that the employment of a person by religious schools or organisations will be governed by the employment provisions being introduced by this Bill. While employees may be engaged in some aspects of religious observance or practice as part of their employment, any discrimination in relation to that person’s employment will only be permitted on the basis of religious belief or activity, in accordance with the new test¹¹.

If the interaction of the Queensland provisions is to be read consistently with the equivalent Victorian provisions, Queensland religious institutions will be able to train and ‘appoint’ ministers who comply with their beliefs, but when appointing those persons to positions of ‘work’, including as leaders, they must comply with clause 29. As a result, Queensland religious institutions will not be able to refuse a work appointment, or refuse to continue a work appointment, when the person’s practices do not align with their beliefs in matters such as marital faithfulness, sexuality, transgender status, or sex work. 

How will this work in practice? By way of illustration, if the Catholic Church ended the employment of a priest who had covertly married, at least two separate grounds of discrimination would be available to the priest. The Church could claim the exemption in respect of the priest’s assertion of religious discrimination (assuming the priest asserts his actions are consistent with his religious beliefs), but not in respect of the priest’s claim that the Church had discriminated on the basis of his ‘relationship status’. If he had entered a same-sex marriage, a third ground would arise, being ‘sexual orientation’ discrimination. The Catholic Church would be acting unlawfully in respect of those two latter claims (depending on the circumstances ‘family or carer responsibilities’ may also be relevant). That would be the outcome if the Bill’s provisions are to be read consistently with the equivalent Victorian provisions, which is what the drafters say they intend. In a journal article, I set out the reasons why this outcome is not consistent with international human rights law¹².

In addition, as noted above, the clause 29 work exemption will only apply to roles where ‘participation in the teaching, observance or practice of the religion’ is required and where it is a ‘genuine occupational requirement’ and where the person would fail that requirement because of their ‘religious belief or activity’. The exemption would not apply to administrative, service, IT or other roles that do not satisfy this test. Faith-based charities are also treated as religious bodies for the purposes of the Bill, with the result that the Bill’s employment provisions will apply equally to those bodies.

In addition to the foregoing problems, it would appear that engaging in a secular activity that is inconsistent with the relevant religious beliefs (for example an extra-marital affair) would not constitute an activity that a religious body or school could assert to be inconsistent with its beliefs under the legislation. The Bill only permits a religious body to have regard to inconsistent ‘religious belief or activity’ by its workers. Thus, if the conduct in question was not a ‘religious activity’ and the minister was repentant, a religious institution would not be able to ensure fidelity to its beliefs. Practically speaking, if the duties of a religious leader were ‘work’ under the Bill, the Anglican Church could not act where a bishop was discovered to have a porn addiction but acknowledged it was wrong, the Catholic Church could not act where a bishop was discovered to be covertly married, and an Islamic institution could not act where an imam was discovered to be in an extra-marital affair (whether heterosexual or otherwise) where they were repentant. These are all non-religious activities. Only inconsistent ‘religious belief or activity’ is relevant to the employee’s suitability. 

The Queensland Government claims:

‘The proposed approach is also broadly consistent with the proposals for amendments to the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth) outlined in the Australian Law Reform Commission Consultation Paper’ of January 2023. This appears to overlook the fact that that Paper prompted a very strong response from religious leaders that led the Prime Minister to distance the Government from the ALRC’s proposed framework¹³.

The Bill further requires that the conduct of the religious body in respect of its employees be ‘reasonable and proportionate’. These twin tests are notoriously imprecise and fact-specific, conferring upon judges an extraordinary granular discretion over the affairs of religious institutions. Moreover, this power operates over matters of religious practice, where personal judicial convictions as to what is ‘reasonable and proportionate’ may vary significantly. Indeed, owing to its ill-defined nature, former Australian Chief Justices Murray Gleeson and Robert French have separately recognised that what is ‘reasonable’ is something upon which judicial minds may ‘differ¹⁴’.

The Bill thus proposes to impose very significant limitations on the operations of religious bodies, faith-based charities and schools within Queensland, potentially requiring such bodies to permit their representatives and leaders to engage in activities to which those bodies would have a religious objection and which would undermine the authenticity of their public witness.

The Effect on Supplies of Services by Religious Institutions, Including Faith-Based Charities

When supplying goods and services, the Bill again provides that religious institutions (including faith-based charities) may only discriminate on the basis of a person’s ‘religious belief and activity’. When it is not engaged in a ‘religious observance or practice’ a religious institution must never refuse a service to a person who has a protected attribute under the Bill, other than on the basis of that person’s ‘religious belief and activity’. 

Because religious bodies must not refuse to supply services when not engaged in ‘religious observance or practice’, faith-based fostering or adoption agencies or health service providers will not be able to refuse to supply their services where such would be inconsistent with their religious beliefs. Again, in all instances a religious body must also convince a judge that its actions in refusing a service on the basis of a person’s ‘religious belief and activity’ are ‘reasonable and proportionate’.  

Obligation to Take Measures to Reduce Discrimination

Clause 19 of the Bill proposes to impose a ‘duty to eliminate discrimination’ on persons that ‘carry on a business or operations’. This obligation falls on religious institutions and schools to the extent that any of the Bill’s exemptions do not apply. The ‘duty to eliminate discrimination’ would thus apply to the circumstances in which an exemption is not available to religious institutions and schools as are illustrated above. For example, churches and mosques will need to proactively direct all staff to allow persons who do not share their faith or who live contrary to their faith to be employed in administrative, service, IT or other roles that do not satisfy the clause 29 test. As a result, the imposed ‘duty to eliminate discrimination’ will require religious institutions to seek out and proactively engage in or permit, activities that do not conform to their religious beliefs.

Can Religious Bodies Complain that they have been Discriminated Against?

In its Building Belonging Report, the QHRC had recommended that corporate bodies should be permitted to make a complaint of discrimination: 

The Act should allow organisations to make complaints in relation to any unlawful conduct under the Act, rather than only in relation to vilification. Organisation complaints should have the same options and outcomes as individual complaints.

This was a significant clarification that would have potentially permitted religious bodies to gain access to the protections against religious discrimination. The mechanisms in the Bill for the making of complaints by corporations do not have in view the making of a complaint by a religious body that itself has been discriminated against. The Bill thus fails to protect religious individuals from discrimination when they engage in collaborative effort with fellow believers. An article titled ‘Recognising Religious Groups as Litigants: An International Law Perspective’ authored by Dr Alex Deagon and myself outlines how the requirements of international law may be acquitted by protecting religious bodies against discrimination. 

(For the avoidance of doubt, this comment has not considered the circumstances of any individual or institution and cannot be relied upon as legal advice.)

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1. Available at https://www.qhrc.qld.gov.au/about-us/reviews/ada . ↩︎
2. Anti-Discrimination Bill 2024 (Qld), schedule 1, definition of ‘religious body’.  ↩︎
3. Consultation Paper Anti-Discrimination Bill 2024 (Exposure Draft) – Exceptions for religious bodies (February 2024) 15 (‘Consultation Paper’). ↩︎
4. Ibid. ↩︎
5. See Mark Fowler, ‘The Position of Religious Schools Under International Human Rights Law’ (2023) 2 The Australian Journal of Law and Religion 36, 46-7, available at https://ausjlr.com/issue-archive/ . ↩︎
6. Consultation Paper (n 3) 15. ↩︎
7. Victoria, Parliamentary Debates, Legislative Assembly 28 October 2021, Natalie Hutchins, Minister, 4369, see also 4370. ↩︎
8. Ibid. ↩︎
9. Consultation Paper (n 3) 15. ↩︎
10. Ibid. ↩︎
11. Victoria, Parliamentary Debates, Legislative Assembly 28 October 2021, Natalie Hutchins, Minister, 4376-7 (Hansard). ↩︎
12. Fowler (n 5) . ↩︎
13. https://www.theguardian.com/australia-news/2023/feb/14/pm-reaffirms-commitment-to-allow-religious-schools-to-hire-staff-based-on-faith . ↩︎
14. Bropho v Human Rights & Equal Opportunity Commission HCA Transcript 9 (4 February 2005) (Gleeson CJ); Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004), [76] (French J). ↩︎