In his speech opening the consultation period for the Religious Discrimination Bill 2019 Exposure Draft, the Attorney-General and Minister for Industrial Relations, The Hon Christian Porter (29 August 2019) stated that:
The Bill accepts as its starting point that the right to free religious expression (like other rights) exists in perpetuity and indivisibly with our human existence. Without a need to point to any single statutory description of that right. And that as a consequence, our society should be as collectively restrained as is reasonably possible; from interfering with another’s freedom to express themselves.
The foundation of the legislative package proposed by the Government follows a ‘restriction of freedoms’ approach as opposed to a ‘positive law’ approach, which has been a disappointment to many faith-based organisations and religious bodies.
The Bill follows traditional anti-discrimination architecture by setting out what it is unlawful to do. At the same time it seeks to protect the rights of faith-based organisations to maintain their identity and goes a little way to providing a framework towards protecting freedom of speech on religious matters and individual conscience.
There is a delicate balance to be found between freedom of expression and freedom from discrimination.
A key provision in the proposed law (Clause 10(1)) provides that
a religious body does not discriminate against a person under the Act by engaging, in good faith, in conduct that may be reasonably regarded as being in accordance with the doctrines, tenets, beliefs, or teachings of the religion in relation to which the body is conducted.
Proposed new test of ‘reasonableness’ for indirect discrimination
For the first time within the anti-discrimination architecture, we see within the Bill, the attempt of the legislature to articulate a test for what constitutes ‘reasonable indirect discrimination’.
The High Court of the United Kingdom in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 noted that in discrimination matters, the test of reasonableness is less demanding than one of necessity. This test was recently applied in the Australian Capital Territory v Wang  ACAT  at  directly references the Styles case:
The test of “reasonableness” is less demanding than one of convenience… the criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect on one hand against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.
Clause 8 (2) sets out that the proposed legislation comprises a test of reasonableness as to what is acceptable indirect discrimination including matters such as:
- Nature and extent of the disadvantage
- Feasibility of overcoming or mitigating the disadvantage
- Extent to which the requirement or practice limits the ability of the employee to engage in their religious belief or activity
A determination of ‘reasonableness’ in relation to indirect discrimination is left open to the Courts under the proposed new laws, however the above statutory guidance provides some limitation on this discretion.
In submissions to the Attorney-General’s consultation team published to date, faith-based organisations have been critical of the difficulties they may face in maintaining their culture and ethos if the proposed laws are enacted.
This new ‘reasonableness’ test may provide significant impediments to hiring practices in organisations where there is an ‘inherent requirement’ for an employee to adhere to a particular worldview (including faith, religious belief, or lack of religious belief).
If the Religious Discrimination Bill 2019 in its current form is enacted, the hiring practices of churches, charities and schools are likely to require review.
Our lawyers are skilled and up-to-date on the proposed legislative changes in this area and can advise on anti-discrimination law and employment law matters arising in this context.
Written by Heidi Austin