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Part 3—Concept of discrimination on the ground of religious belief or activity

Part 3 Concept of discrimination on the ground of religious belief or activity

   

13   Discrimination on the ground of religious belief or activity—direct discrimination

                   A person discriminates against another person on the ground of the other person’s religious belief or activity if:

                     (a)  the person treats, or proposes to treat, the other person less favourably than the person treats, or would treat, another person who does not hold or engage in the religious belief or activity in circumstances that are not materially different; and

                     (b)  the reason for the less favourable treatment is the other person’s religious belief or activity.

14   Discrimination on the ground of religious belief or activity—indirect discrimination

Indirect discrimination

             (1)  A person discriminates against another person on the ground of the other person’s religious belief or activity if:

                     (a)  the person imposes, or proposes to impose, a condition, requirement or practice; and

                     (b)  the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons who hold or engage in the same religious belief or activity as the other person; and

                     (c)  the condition, requirement or practice is not reasonable.

Considerations relating to reasonableness

             (2)  Whether a condition, requirement or practice is reasonable depends on all the relevant circumstances of the case, including the following:

                     (a)  the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice;

                     (b)  the feasibility of overcoming or mitigating the disadvantage;

                     (c)  whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

15   Discrimination on the ground of religious belief or activity—qualifying body conduct rules

             (1)  A qualifying body discriminates against a person on the ground of the person’s religious belief or activity if:

                     (a)  the qualifying body imposes, or proposes to impose, a condition, requirement or practice (a qualifying body conduct rule ) on persons seeking or holding an authorisation or qualification from the qualifying body that relates to standards of behaviour of those persons; and

                     (b)  the qualifying body conduct rule 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.

             (2)  However, a qualifying body does not discriminate against a person under subsection (1) if compliance with the qualifying body conduct rule by the person is an essential requirement of the profession, trade or occupation.

             (3)  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).

Note 1:       A moderately expressed religious view that does not incite hatred or violence would not constitute vilification.

Note 2:       Paragraph 35(1)(b) covers expressions of religious belief that a reasonable person, having regard to all the circumstances, would conclude counsel, promote, encourage or urge conduct that would constitute a serious offence.

Section does not limit section 14

             (4)  This section does not limit section 14 (about indirect discrimination).

16   Discrimination extends to persons associated with individuals who hold or engage in a religious belief or activity

             (1)  This Act (other than section 15 and Part 2) applies to a person who has an association with an individual who holds or engages in a religious belief or activity in the same way as it applies to a person who holds or engages in a religious belief or activity.

Note:          It is therefore unlawful under this Act to discriminate against a person (irrespective of whether they hold or engage in a religious belief or activity) in the areas of public life that the Act covers on the basis of the person’s association with someone who does hold or engage in a religious belief or activity.

Example:    It is unlawful, under section 19, for an employer to discriminate against an employee on the ground of a religious belief or activity of the employee’s spouse.

             (2)  Without limiting subsection (1), a person that is an individual has an association with another individual if:

                     (a)  the other individual is a near relative of the person; or

                     (b)  the person lives with the other individual on a genuine domestic basis; or

                     (c)  the other individual is in an ongoing business relationship with the person; or

                     (d)  the other individual is in an ongoing recreational relationship with the person; or

                     (e)  the person and the other individual are members of the same unincorporated association.

             (3)  For the purposes of subsection (1), a person that is a body corporate has an association with an individual if a reasonable person would closely associate the body corporate with that individual.

17   Conduct engaged in for 2 or more reasons

                   If:

                     (a)  conduct is engaged in for 2 or more reasons; and

                     (b)  one of the reasons is a person’s religious belief or activity (whether or not it is the dominant or a substantial reason for the conduct);

then, for the purposes of this Act, the conduct is taken to be engaged in for that reason.