The commonwealth Religious Freedom Bills (Religious Discrimination Bill 2019, Religious Discrimination (Consequential Amendments) Bill 2019 and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019) (“the Bills”) have drawn significant media attention in recent weeks.
The Bills followed the Religious Freedom Review (which “recognised an opportunity to enhance the statutory protection of the right to freedom of religion in Australian law”), and is the Australian Government’s response to giving “a range of measures to give effect to the Religious Freedom Review’s recommendations” (see the Attorney-General’s Outline of reforms).
Notwithstanding that the Australian Government is still inviting submissions on the Bills (to close by 2 October 2019), and that the Bills may be amended significantly if they are passed (given the polarised attention the Bills have been given from lawyers and the public), faith-based employers and educators may be interested to know how the proposed Bills (in exposure draft form) may affect their operations.
For the purpose of this article, we will focus on selected aspects of the exposure draft of the Religious Discrimination Bill 2019 as at 29 August 2019 (“the Bill”).
Direct and Indirection Discrimination of the ground of a religious belief or activity
The Bill (if passed), will make it unlawful for direct or indirect discrimination to occur on the ground of religious belief or activity. This aspect has similarities to existing protections in Queensland under the Anti Discrimination Act 1991 (Qld). In simple terms:
- Direct discrimination occurs when you treat someone them less favourably because of a different religious belief or activity (section 7 of the Bill);
- Indirect discrimination occurs when you impose an unreasonable term on someone that they’re not able to meet, or disadvantages them, because of a different religious belief or activity (section 9 of the Bill); and
- Religious belief or activity includes not holding a religious belief, or not engaging in or refusing to engage in a lawful religious activity (section 5 of the Bill).
We note that the Bill proposes that a rule imposed on an employee would not be not reasonable if it would restrict or prevent an employee from making a statement of belief at a time other than when the employee is performing work on behalf of the employer. However, it may be reasonable if compliance with the rule is necessary to avoid unjustifiable financial hardship to the employer (section 9 of the Bill).
Religious bodies may act in accordance with their own faith
The Bill (if passed) will provide that a faith-based educational institution, religious charity or other faith based-entity (that is not engaged purely or primarily in commercial activities) does not discriminate against a person by engaging (in good faith) in conduct that may reasonably be regarded as being consistent with the entity’s doctrines, tenets, beliefs and teachings (section 10 of the Bill).
Discrimination in Education
The Bill (if passed) will make it unlawful for an educational instruction to discriminate against a person on the ground of their religious belief or activity by:
- refusing or failing to accept the person’s application as a student;
- in the terms and conditions on which it is prepared to admit the person as a student;
- by denying the student access, or limiting the student’s access, to any benefit provided by the educational instruction; or
- expelling the student;
- or subjecting the student to any detriment.
(section 18 of the Bill).
This section in the proposed Bill seems to be consistent with the position taken by the Human Rights Division of the Victorian Civil and Administrative Tribunal in Arora v Melton Christian College (Human Rights)  VCAT 1507, where there was a finding that a child was “excluded from Melton Christian College due to its uniform policy. His religious beliefs and practices prevented him from being able to comply with the uniform policy” (see the Victorian Human Rights Commission’s summary).
Inherent Requirements of employment
The Bill (if passed) will provide an exception, where it will not be unlawful for an employer to discriminate against an employee if the employee is unable to carry out the inherent requirements of the employment because of the employee’s religious belief or activity. (section 31(2) of the Bill).
This is a limited exception, and only applies to certain types of discrimination, for example, who should be offered promotion or transfer.
Inherent requirements is not defined under the Bill – but the explanatory notes refer to the High Court decision of Qantas Airways Ltd v Christie (1998) 193 CLR 280, which held that “whether certain requirement constitute inherent requirements of particular work depends on whether the requirements are ‘something essential’ to, or an ‘essential element’ of, the particular position.
To further clarify, this exception, the explanatory note gave two examples where this exception would apply:
- A store that was only open on Saturdays would not discriminate by not hiring a Jewish person because they observed the Sabbath and could not work on Saturdays;
- An organisation which solely provided services to women at risk would not discriminate by dismissing an employee whose religious belief did not allow them to be alone with women.
The limitations around this was also clarified to say that “the exception does not apply in relation to denying or limiting an employee’s access to opportunity for training or any other benefits associated with employment… other than in determining who should be offered promotion or transfer” (paragraph 351 of the explanatory notes).
In relation to promotions or transfers, the explanatory note says that “For example, it may be an inherent requirement of senior leadership positions at a religiously-affiliated business that those leaders are adherents of that religion, which is not an inherent requirement of more junior positions. It would therefore not be unlawful for that business not to promote an existing junior employee to that position of they were not an adherent of that religion” (paragraph 353).
While it is some ways away from its passage into law, the Bill has at least the capacity clarify and standardise some of Australia’s anti-discrimination laws and exceptions, which, at the time of this article, vary from state to state.
Whether or not the Bills are passed, it appears that faith-based educational institutions, charities and businesses will need to be more aware the boundaries that exist in making decisions that are potentially discriminatory, and whether those decisions are appropriate.