Title Religious Discrimination Bill 2022
Database Explanatory Memoranda
Date 18-03-2022 05:14 PM
Source House of Reps
System Id legislation/ems/r6821_ems_dbc5cd34-0f4b-4044-a68f-69e52f3bce03


Religious Discrimination Bill 2022

 

 

2019-2020-2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

RELIGIOUS DISCRIMINATION BILL 2021

                                                                                      

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Hon Michaelia Cash)

 

           


 

RELIGIOUS DISCRIMINATION BILL 2021

GENERAL OUTLINE

1.                       The Religious Discrimination Bill 2021 (the Bill) prohibits discrimination on the ground of religious belief or activity in key areas of public life.

2.                       This Bill would give effect to three recommendations of the Report of the Expert Panel on Religious Freedom (the Religious Freedom Review) (recommendations 3, 15 and 19).

3.                       The Religious Freedom Review recognised that there is an opportunity to enhance the statutory protection of the right to freedom of religion in Australia.

4.                       The right to freedom of religion protects both the freedom to have or adopt a religion or belief and the freedom to manifest that belief. The right to freedom of religion importantly not only protects people who hold religious beliefs, but also protects the right not to hold a religious belief and the right not to engage in religious activities. In addition to these rights, international human rights law also protects the right not to be discriminated against on the basis of one’s religious belief or activity, and the right to equal and effective protection against such discrimination.

5.                       All Australians, regardless of their religious belief or activity, should be able to participate fully in our society. All people are entitled not to be discriminated against on the basis of their religious belief or activities in public life, and are entitled to the equal and effective protection of the law.

6.                       The Bill does not affect the operation of other Commonwealth anti-discrimination legislation or permit any discrimination on the grounds of an attribute protected by these laws.

7.                       Existing federal anti-discrimination legislation advances the rights to equality and non‑discrimination for a wide variety of attributes. However, current protections in Commonwealth, state and territory laws for discrimination on the basis of a person’s religious belief or activity are piecemeal, have limited application and are inconsistent across jurisdictions. In order to address this gap in Australia´s statutory anti-discrimination framework, the Religious Freedom Review recommended that the Commonwealth develop a Religious Discrimination Act to render it unlawful to discriminate on the basis of a person’s religious belief or activity.

8.                       In accordance with this recommendation, this Bill would introduce comprehensive federal protections to prohibit discrimination on the basis of a person’s religious belief or activity in a wide range of areas of public life, including in relation to employment, education, access to premises, the provision of goods, services and facilities, and accommodation. This would ensure that all people are able to hold and manifest their faith, or lack thereof, in public without interference or intimidation.

9.                       This Bill would bring legislative protections for religious belief and activity to the same standard as those already afforded under federal anti-discrimination law to discrimination on the basis of age, disability, sex, sexual orientation, gender identity, intersex status, family responsibilities, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, race, colour, national or ethnic origin, descent or immigrant status.

10.                   In addition, this Bill is intended to promote attitudinal change, to ensure that people are judged on their capacity and ability, rather than on generally unfounded negative stereotypes that some may have about people who hold certain religious beliefs or undertake certain religious activities.

11.                   This objective is strengthened through the creation of the office of the Religious Discrimination Commissioner at the Australian Human Rights Commission (the Commission). As the Religious Freedom Review recognised, the Commission has a leading role to play in educating and engaging with the public about issues regarding freedom of religion.

12.                   The new Religious Discrimination Commissioner would have responsibility for freedom of religion, including discrimination on the ground of religious belief or activity, at the Commission. The Commissioner would also promote understanding of and compliance with this Bill and advocate, inquire into and report on issues pertaining to freedom of religion in Australia.

Background

Religious Freedom Review

13.                   On 22 November 2017, the then Prime Minister, the Hon Malcolm Turnbull, announced a review into religious freedom in Australia.

14.                   The review was conducted by an Expert Panel, chaired by the Hon Philip Ruddock, and comprising Emeritus Professor Rosalind Croucher AM, the Hon Dr Annabelle Bennett AC SC, Father Frank Brennan SJ AO and Professor Nicholas Aroney.

15.                   The review was announced in response to proposals for legislative reform to protect freedom of religion during the debate on marriage equality, recognising that any legislative reforms to protect freedom of religion should be undertaken carefully to avoid the risk of unintended consequences. The terms of reference for the review required the Expert Panel to examine and report on whether Australian law (Commonwealth, state, territory) adequately protects the human right to freedom of religion. In doing so, the Expert Panel was required to consider the intersections between the enjoyment of the right to freedom of religion and other human rights.

16.                   The Expert Panel’s final report was provided to the then Prime Minister on 18 May 2018. The report was the result of extensive public consultation, including consideration of over 15,500 submissions and 90 consultation meetings with a wide range of stakeholders in each state and territory.

17.                   The Religious Freedom Review concluded that there is an opportunity to further protect, and better promote, the right to freedom of religion under Australian law and in the public sphere.

18.                   The Religious Freedom Review made 20 recommendations to enhance the protection of freedom of religion in Australia, both through legislative amendments to Commonwealth, state and territory laws, and through non-legislative measures.

19.                   This Bill would implement recommendations 3, 15 and 19 of the Religious Freedom Review.

Recommendation 3  

20.                   Recommendation 3 stated that Commonwealth, state and territory governments should consider the use of objects, purposes or other interpretative clauses in anti‑discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion.

21.                   This recommendation would be implemented by clause 3 of this Bill, which introduces an objects clause which specifies that in giving effect to the objects of this Bill, regard is to be had to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights. Similar provisions would be introduced into objects clauses in existing anti‑discrimination law by the Human Rights Legislation Amendment  Bill 2021.

Recommendation 15

22.                   Recommendation 15 stated that the Commonwealth should enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief.

23.                   This Bill in its entirety would implement this recommendation. Specifically, Parts 2 and 3 define the concept of discrimination on the ground of religious belief or activity and prohibit discrimination on the ground of religious belief or activity in key areas of public life.

Recommendation 19

24.                   Recommendation 19 stated that the Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue.

25.                   This recommendation would be implemented by Parts 6 and 7 of this Bill, which establish the statutory office of the Religious Discrimination Commissioner at the Commission, and confer functions relating to discrimination on the ground of religious belief or activity on the Commission.

Outline of the Bill

26.                   This Bill would make discrimination on the ground of religious belief or activity unlawful in specified areas of public life.

27.                   To ensure consistency as far as possible, the provisions in this Bill reflect the existing prohibitions on discrimination in the Age Discrimination Act 2004 (Age Discrimination Act), Disability Discrimination Act 1992 (Disability Discrimination Act) and the Sex Discrimination Act 1984 (Sex Discrimination Act), with some alterations to reflect the distinct nature of religious belief or activity as a protected attribute.

28.                   Religious belief or activity is defined broadly under this Bill to include holding, or not holding, a religious belief and engaging in, not engaging in, or refusing to engage in, religious activity.

29.                   Discrimination on the ground of religious belief or activity under this Bill is extended to also include discrimination on the basis of past, present or presumed religious belief or activity, as well as discrimination on the basis of characteristics associated with particular religious beliefs or activities.

30.                   Part 2 of the Bill provides that certain conduct is not discrimination under the Bill. This includes certain conduct by religious bodies, conduct to meet a need or disadvantage, and statements of belief.

31.                   Conduct engaged in by religious bodies in good faith that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of the religion, or which is engaged in to avoid injury to the religious susceptibilities of adherents of that religion, is not discrimination on the basis of religious belief or activity for the purposes of this Bill. This ensures that nothing in this Bill affects the ability for inherently religious organisations to manifest their religious belief and operate in accordance with their religious ethos in good faith.

32.                   Religious bodies include religious educational institutions, religious charities and any other religious bodies (including religious not-for-profit bodies), other than bodies engaging solely or primarily in commercial activities. Conduct in the course of administering religious hospitals, aged care facilities or providing accommodation or disability services is excluded, although the conduct of these bodies in relation to employment or partnerships is not discrimination if the conduct is in good faith and such that a person of the same religion as the religious body could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of the religion, or the conduct is engaged in to avoid injury to the religious susceptibilities of adherents of that religion.

33.                   Similarly, a person does not discriminate under this Bill by engaging in reasonable conduct intended to meet a need arising out of a person or group’s religious belief or activity or to reduce a disadvantage experienced by a person or group based on their religious beliefs or activities.

34.                   In addition, the Bill would provide that certain statements of belief in and of themselves do not constitute discrimination under Commonwealth, state or territory anti-discrimination law, nor do they contravene subsection 17(1) of the Anti-Discrimination Act 1998 (Tas) (Tasmanian Anti-Discrimination Act) or a specified provision of a prescribed law. This would ensure that the ability of people to express their genuine religious beliefs or non-religious beliefs about religion in good faith and without malice is not restricted by the operation of any Australian anti-discrimination law, so long as such statements do not harass, threaten, intimidate or vilify a person or group.

35.                   The Bill’s application is also extended to discrimination against persons who have an association with an individual who holds or engages in a religious belief or activity (including an association with an individual who does not hold or engage in a religious belief or activity).

36.                   Similar to existing anti-discrimination law, Part 3 of this Bill would prohibit both direct discrimination and indirect discrimination on the ground of religious belief or activity. This would ensure that treating a person less favourably because of their religious belief or activity, or imposing apparently neutral conditions, requirements or practices which have the effect of disadvantaging people of a particular religious belief or activity are unlawful in the areas of public life covered by the Bill. 

37.                   Part 4 of this Bill would provide that it is unlawful to discriminate on the ground of religious belief or activity in the areas of employment, education, access to premises, the provision of goods, services and facilities, accommodation, the disposal of land, sport, membership of clubs, the administration of Commonwealth laws and programs and in requesting or requiring certain information.

38.                   Part 4 of this Bill would also provide relevant exceptions to the prohibition of discrimination. All of the exceptions in the Bill have a strong policy rationale which justifies allowing otherwise discriminatory conduct. For example, the Bill includes a general exception for discrimination against a person where a reasonable person would conclude that the first person has expressed a particular belief that is counselling, promoting, encouraging or urging conduct that would constitute a serious criminal offence. This exception is intended to ensure that the counselling, promotion, encouragement or urging of serious offences, which is inconsistent with Australian values and would cause harm to the individuals or the community at large, is not protected or otherwise condoned by the Bill.

39.                   The Bill contains exceptions which reflect the distinction between public life, which this Bill intends to regulate, and private life, in which individuals are free to conduct themselves in whatever manner they please (so long as such conduct is not otherwise unlawful), such as exceptions for share houses and the disposal of land by gift or through wills.

40.                   In addition, the Bill contains exceptions to ensure that charities are able to continue to give effect to provisions of their governing rules, or provisions of a will, deed or other instrument, which confers charitable benefits on people of a particular religious belief or activity.

41.                   Exceptions are also included to account for situations in which this Bill may conflict with other laws, such as in relation to conduct in direct compliance with Commonwealth, state and territory laws, court and tribunal orders, determinations and industrial instruments, or conduct reasonably necessary to perform or exercise law enforcement, national security and intelligence functions or powers.

42.                   Part 5 establishes two offences under this Bill, being victimisation and discriminatory advertisements.

43.                   Part 6 and 7 of the Bill would establish the statutory office of the Religious Discrimination Commissioner at the Commission, and confers functions on the Commission in relation to discrimination on the ground of religious belief or activity. These provisions emphasise public awareness and education as critical elements in overcoming discrimination. 

44.                   Complaints of discrimination under this Bill can be made to the Commission. The necessary consequential amendments to ensure the Commission can inquire into and attempt to conciliate complaints under this Bill would be made by the Religious Discrimination (Consequential Amendments) Bill 2021. Where a complaint cannot be successfully conciliated by the Commission, an individual may make an application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia.

FINANCIAL IMPACT

45.                   The Bill would have cost implications for the Commission.

46.                   The creation of the statutory office of the Religious Discrimination Commissioner would require additional expenditure for the salary and expenses of the Commissioner, as well as the necessary support staff. In addition, further expenditure is required for additional complaints handling staff at the Commission to inquire into, and attempt to conciliate, complaints of discrimination on the ground of religious belief or activity under this Bill.


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Religious Discrimination Bill 2021

1.                       This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2.                       The Religious Discrimination Bill 2021 (the Bill) makes discrimination on the basis of religious belief or activity unlawful in specified areas of public life. The Bill would also establish the statutory office of the Religious Discrimination Commissioner (the Commissioner) within the Australian Human Rights Commission (the Commission).

3.                       The Bill would implement three of the recommendations of the Report of the Expert Panel into Religious Freedom (the Religious Freedom Review). The Religious Freedom Review expressly considered balancing the right to freedom of religion with other human rights in making its recommendations.

4.                       The purpose of the Bill is to promote the human rights to freedom of religion, equality and non‑discrimination by prohibiting discrimination on the basis of religious belief or activity in specified areas of public life, including in work, education, and in the provision of goods, services and facilities.

5.                       The Bill prohibits direct and indirect discrimination on the ground of religious belief or activity (clauses 13 and 14) in work (Part 4, Division 2) and in other areas of public life (Part 4, Division 3). The prohibitions of discrimination in this Bill would also apply to discrimination against a person who associates with people who hold or engage in a religious belief or activity in those same areas of public life (clause 16).

6.                       The Bill provides that certain conduct is not covered by the prohibition of discrimination under this Bill (Part 2) and establishes general and specific exceptions from the prohibition of discrimination (Part 4, Division 4). These exceptions are limited to instances where there is a clear rationale for allowing the differential treatment of individuals on the basis of their religious belief or activity. The inclusion of these provisions ensures the Bill appropriately balances the right to freedom of religion with other rights. It also ensures the Bill would protect certain conduct engaged in for legitimate and inherently religious purposes, which would otherwise be adversely impacted by the prohibition of discrimination.

7.                       In addition, Part 2 of the Bill provides that certain statements of belief in and of themselves do not constitute discrimination under Commonwealth, state or territory anti-discrimination law and do not contravene subsection 17(1) of the Anti‑Discrimination Act 1998 (Tasmania) or provisions of prescribed legislation.

8.                       The Bill also creates two offences, being victimisation of a person who takes action under this Bill and discriminatory advertisements (Part 5). The Bill also makes it clear that victimisation is both a criminal offence and form of unlawful discrimination and a person who has experienced victimisation can lodge a complaint in the Commission (Division 3).

9.                       Finally, the Bill would support public advocacy for the protection of freedom of religion through the creation of the statutory office of the Commissioner within the Commission (Part 6) and the conferral of functions on the Commission in relation to discrimination on the ground of religious belief or activity (Part 7).

10.                   To ensure consistency, as far as possible, the provisions in this Bill reflect the existing prohibitions on discrimination in the Age Discrimination Act 2004, Disability Discrimination Act 1992 and the Sex Discrimination Act 1984, with some alterations to reflect the distinct nature of religious belief or activity as a protected attribute.

Human rights implications

11.                   The Bill primarily engages the rights to:

a.       freedom of religion

b.      equality and non-discrimination

c.       freedom of expression

d.      privacy and reputation

e.       work, and

f.        education.

12.                   In engaging the above rights, the Bill also impacts on the right to freedom of assembly and association and the right to an effective remedy for a violation of human rights.

Right to freedom of religion

Protected attribute

13.                   Article 18 of the International Covenant on Civil and Political Rights (ICCPR) provides the right to freedom of thought, conscience and religion. Article 18 guarantees to every person:

a.       the freedom to have or to adopt a religion or belief of his choice, and

b.      freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

14.                   The use of ‘his’ in the ICCPR refers to all humans, regardless of sex or gender.

15.                   Parts 3 and 4 of the Bill, in conjunction with the definitions in subclause 5(1), protect against discrimination on the basis of ‘religious belief or activity’ (known as the protected attribute). The protected attribute is defined in subclause 5(1) of the Bill as ‘holding a religious belief, engaging in religious activity, not holding a religious belief, or not engaging in, or refusing to engage in, religious activity’. This term has been defined broadly to encompass all the aspects of freedom of religion that are guaranteed under Article 18.

16.                   The definition of ‘religious belief or activity’ in subclause 5(1) also encompasses a lack of religious belief or activity. The Human Rights Committee (CCPR) has indicated that Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief (CCPR General Comment No. 22 at [2]). Including the concept of ‘not holding a religious belief’ and ‘not engaging in, or refusing to engage in, religious activity’ within the definition of ‘religious belief or activity’ is consistent with the scope of Article 18.

Conduct that is not discrimination – religious bodies 

17.                   Clause 7 sets out circumstances in which a religious body’s conduct is not discrimination under this Bill.

18.                   Subclause 5(1) of the Bill defines the term ‘religious body’ as an educational institution or registered charity conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or any other body conducted in accordance with the doctrines of a particular religion (other than bodies that engage solely or primarily in commercial activities).

19.                   Subclauses 7(2) and (4) provide that a religious body does not discriminate against another person by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion or to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body. This may include giving preference to persons of the same religion. If the religious body is an educational institution, the conduct must be in accordance with a publicly available policy. The provisions do not affect the operation of other Commonwealth anti-discrimination law and do not provide a basis for discrimination on the grounds of a protected attribute.

20.                   Clause 7 ensures the prohibition of discrimination in this Bill does not unduly limit the right to freedom of religion. Without it, the Bill could restrict or interfere with the observance or practice of particular religions or the ability for religious bodies to conduct their affairs in accordance with their religious beliefs. It therefore promotes the right to freedom of religion and association. It is not an impermissible limitation on an individual’s right to freedom of religion or belief, as it does not limit an individual’s freedom to continue to hold a particular religious belief.

21.                   However, by allowing this conduct, the Bill could limit an individual’s rights to equality and non-discrimination by preventing them accessing the provision of services and education or employment opportunities from that religious body on the basis of their religious belief or activity.

22.                   The provisions have been carefully balanced to ensure they only exempt conduct engaged in in good faith by inherently religious bodies, which relates to the fundamental tenets underpinning the religious body and is necessary for that body to continue to act in accordance with their religious beliefs and to maintain their religious ethos. This ensures that there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective. The provision does not provide a general basis for discrimination outside of the doctrines of the relevant religion and values and susceptibilities of adherents of the religion.

23.                   This limitation is therefore rationally connected, and proportionate, to its legitimate objective of enabling religious bodies to conduct themselves in accordance with their religion, which also promotes an individual’s right to freedom of association and right to manifest their religion in community with others.

Exceptions for certain conduct by religious hospitals, aged care facilities, accommodation providers and disability service providers in certain areas of public life

24.                   Clause 8 provides that subclauses 7(2) and (4), which provide that a religious body does not discriminate when it engages in certain conduct, do not apply to conduct of a religious body if the conduct is in the course of: establishing, directing, controlling or administering a hospital or aged care facility, or a camp or conference site that provides accommodation; the provision of accommodation (if the religious body solely or primarily provides accommodation); or the provision of the services (if the religious body solely or primarily provides services to people with disability). This recognises that these institutions generally provide services to the public and often on a commercial basis. It is therefore not appropriate for their conduct in all areas of public life to not be covered by the Bill.

25.                   Instead, clause 9 provides more targeted exceptions for religious bodies which provide aged care or hospital facilities, disability services and accommodation only in relation to employment and partnerships. It does not apply to any other area of public life. Conduct by these bodies does not constitute discrimination if it is done in good faith, in accordance with a publicly available policy, and a person of the same religion as the body could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of that religion (or the body engages in the conduct to avoid injury to the religious susceptibilities of adherents of that religion).

26.                   These exceptions recognise the need for these bodies to be able to require or prefer staff or partners to be adherents of their religion in order to maintain the religious ethos of that body. Without these exceptions, the Bill could make it unlawful for these bodies to make faith-based employment or partnerships decisions. As these provisions allow such religious bodies to be conducted in accordance with their religion (and therefore promote an individual’s right to freedom of association and right to manifest their religion in community with others), these exceptions promote the rights to freedom of religion and association.

27.                   The provisions are not intended to limit an individual’s right to freedom of religion. Clauses 8 and 9 are intended to permit religious hospitals, aged care facilities, disability service providers and accommodation providers to conduct themselves in a manner that is consistent with their religious ethos solely in relation to employment and partnerships. For example, a Jewish aged care or disability service provider may preference the employment of Jewish persons in their facility to ensure that the facility is conducted in accordance with Jewish faith. Such conduct does not limit an individual’s freedom to continue to hold a particular religious belief. Therefore the provision is not an impermissible limitation on an individual’s right to freedom of religion.

28.                   However, by allowing this conduct, the Bill limits the right to non-discrimination for potential employees on the basis of their religious belief or activity. Clause 9 requires an objective connection between the religious body’s conduct and the beliefs and practices of the relevant religion. It only applies in relation to employment decisions and does not provide a general basis for discrimination. It also includes additional safeguards including a requirement the conduct be in accordance with a publicly available policy. This limitation is therefore rationally connected, and proportionate, to its legitimate objective of ensuring persons administering religious hospitals or aged care facilities, or providing disability services or accommodation, can continue to maintain their religious ethos in the course of conducting their affairs.

Rights to equality and non-discrimination

29.                   Articles 2 and 26 of the ICCPR establish the rights to equality and non‑discrimination. As a result, laws should ‘prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. These rights are also recognised in Article 2(2) of the ICESCR, Article 2 of the Convention on the Rights of the Child (CRC), and Articles 2, 3, 4 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

30.                   The rights to equality and non-discrimination provide that all people are equal before the law and entitled to the equal protection of the law. In Australia’s domestic law, this is achieved through an obligation in anti-discrimination law to not treat other people less favourably based on certain grounds consistent with international human rights law.

31.                   Relevantly for this Bill, Article 26 specifies that ‘religion’ is a prohibited ground of discrimination.

Prohibition of discrimination and effective remedy

32.                   Article 26 of the ICCPR requires that ‘the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination’. The term ‘prohibition’ implies that conduct is forbidden by law or command, and that the prohibition will be enforceable in some way. This Bill prohibits discrimination on the basis of religious belief or activity, including direct and indirect discrimination and provides civil remedies for any infringements on this prohibition. This is intended to meet the threshold of prohibition set out in Article 26.

33.                   Further to Article 26, Article 2(3) of the ICCPR requires that each State party shall ensure there is an effective remedy for violation of rights (by State officials), determined by a competent judicial, administrative or legislative authority, and enforced by competent authorities. The companion legislation to this Bill, the Religious Discrimination (Consequential Amendments) Bill 2021 amends the Australian Human Rights Commission Act 1986 (the AHRC Act) to provide for administrative and judicial remedies for unlawful discrimination under this Bill. For example, the Commission will be empowered to inquire into and attempt to conciliate complaints under this Bill, and where a complaint cannot be successfully conciliated, an individual may make an application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia.

34.                   The prohibition of discrimination in the Bill applies to the conduct of Commonwealth, state and territory officials. As such, the Bill provides a remedy for discrimination by officials in key areas of public life, such as employment and the administration of Commonwealth laws and programs, thereby satisfying the requirements of Article 2(3) and Article 26.

35.                   Part 6 of the Bill would establish the position of Religious Discrimination Commissioner. The Commissioner would have a significant role in enhancing engagement, understanding and dialogue about freedom of religion. The Commissioner’s advocacy would assist in educating persons about the prohibition of discrimination in the Bill, with the aim of ultimately reducing the occurrence of unlawful discrimination. This would promote the right to freedom of religion, and the right to non-discrimination in accordance with Article 2(1) of the ICCPR.

36.                   Clauses 50 and 51 of the Bill create two offences in relation to victimisation and discriminatory advertising. Neither offence is retrospective, satisfying the right to legality in Article 15 of the ICCPR.

37.                   The victimisation offence in clause 50 ensures that the remedies provided for unlawful discrimination under this Bill are not undermined. This provision provides that it is an offence for a person to cause, or threaten to cause, detriment to another person in relation to a complaint about discrimination under this Bill. The provision enhances compliance with the right to remedy under Article 2(3)(a) of the ICCPR by addressing barriers to seeking a remedy, and providing a disincentive for undermining the remedy process. The creation of the offence is proportionate to the objective of upholding the remedy process.

38.                   The advertising offence in clause 51 ensures that people are deterred from undermining the prohibition of discrimination in this Bill through public displays of discriminatory intent in advertisements. Because these advertisements may have the effect of promoting discriminatory attitudes in the community, the creation of an offence is an appropriate method for preventing particularly public discriminatory conduct. The provision promotes the rights to equality and non-discrimination and enhances compliance with the right to remedy by ensuring that there is an appropriately serious remedy for public discriminatory conduct.

Associates

39.                   Clause 16 provides that the protection from discrimination is extended to protect persons who are discriminated against on the basis that they have an association with an individual who holds or engages in a religious belief or activity. A person has an association with another individual if the individual is a near relative, lives with the individual on a genuine domestic basis, has an ongoing business or recreational relationship or are members of the same unincorporated association. The term ‘near relative’ is defined in subclause 5(1) to include a person’s parent, grandparent, child, or sibling (or any step-relations of those categories), spouse or de-facto partner or any other person who has a specified relationship with the person’s spouse or de-facto partner. The provision promotes the rights to equality and non-discrimination by extending the protection against discrimination to persons who have an association with an individual who holds or engages in a religious belief or activity.

40.                   This group would be clearly identified and defined by their association to an individual who holds or engages in a religious belief or activity and would therefore fall within the grounds of ‘other status’ in Articles 2 and 26 of the ICCPR.

Legitimate differential treatment

41.                   Discrimination is impermissible differential treatment between persons or groups that leads to a person or a group being treated less favourably than others, based on one of the prohibited grounds of discrimination (including ‘religion’) as set out in Article 26 of the ICCPR. The ICCPR has indicated that ‘discrimination’ should be understood to include ‘a distinction, exclusion, restriction or preference’ (ICCPR General Comment No. 18 at [6]).

42.                   The ICCPR has indicated that discrimination should be understood to apply to any distinction based on any ground which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms, except where the distinction is based on ‘reasonable or objective’ grounds and is aimed at ‘achiev[ing] a purpose which is legitimate under the Covenant’ (ICCPR General Comment No. 18 at [13]).

43.                   The international human rights law principle of ‘legitimate differential treatment’ enables particular groups of people to be treated differently in certain circumstances. This differential treatment must be prescribed by law, aimed at achieving a legitimate objective, be rationally connected to its objective and be proportionate to the objective to be achieved.

44.                   Clause 10 provides that a person does not discriminate against another person by engaging in conduct that is reasonable in the circumstances, consistent with the purposes of the Bill and is intended to meet a need or reduce a disadvantage arising from a person or group’s religious belief or activity. This provision ensures that the Bill does not render unlawful conduct which is designed to meet the specific needs of, and alleviate disadvantage and inequality experienced by, particular religious groups, and therefore achieves equality. For example, an aged care facility that provides services to meet the needs (including dietary, cultural or religious needs) of a minority religious group, such as a Jewish or Greek Orthodox residential aged care home, retirement village or an employer providing a dedicated prayer room on work premises, may constitute conduct that is not discrimination under this clause. By allowing this conduct, the Bill could limit an individual’s rights to equality and non‑discrimination by permitting the beneficial treatment of persons of certain religious belief or activity, where persons or groups of other religious beliefs or activities do not receive such treatment. The provision is broadly consistent with section 33 of the Age Discrimination Act.

a.       Prescribed by law: The limitation is expressed clearly and precisely in a statute of the Parliament of Australia which will be publicly accessible.

b.      Legitimate objective:The objective of this provision is to allow affirmative and beneficial measures to be taken to meet the genuine needs of individuals and groups based on their religious beliefs and activities, and in doing so, remove barriers to equality and conditions that may perpetuate discrimination based on those beliefs or activities.

c.       Rationally connected to its objective: The provision requires that the conduct be reasonable in the circumstances, consistent with the purposes of the Bill and either intended to meet a need or to reduce a disadvantage arising out of a religious belief or activity of a group or individual to be exempted from the application of the Bill. Each of these requirements place limits to ensure the conduct is rationally connected and targeted to the legitimate objective of the provision.

d.      Proportionate to its objective: By requiring that the conduct is reasonable and consistent with the purposes of the Bill, the clause is appropriately limited to only capture conduct that is consistent with the broader beneficial purposes for which the Bill is established and the aims it intends to meet, including the aim of eliminating discrimination on the grounds of religious belief or activity. The measure is therefore proportionate to its objective of achieving equality.

45.                   Division 4 of Part 4 of the Bill recognises that differential treatment may be permissible in certain circumstances by providing a range of exceptions to the prohibition on discrimination. The exceptions are broadly similar to those under existing Commonwealth anti‑discrimination legislation. Each exception serves a proper purpose in appropriately balancing the broad spectrum of human rights with specific protections for the right to freedom of religion and the right to be free from discrimination.

46.                   These provisions provide exceptions to the prohibition of discrimination on the ground of religious belief or activity under this Bill. These provisions do not affect whether certain conduct constitutes discrimination for the purposes of other federal anti-discrimination laws, such as the Sex Discrimination Act.

47.                   All exceptions in the Bill are prescribed by law and are expressed clearly and precisely in a statute of the Parliament of Australia which will be publicly accessible.

48.                   Clause 35 of the Bill provides a general exception for discrimination on the basis that a person has expressed a religious belief and in doing so counsels, promotes, encourages or urges conduct that would constitute a serious offence under the law of the Commonwealth, a state, or a territory. The exception is not intended to regulate the holding of beliefs, but rather aims to ensure that the expression of certain religious beliefs which advocate the commission of a serious offence do not receive protection under anti‑discrimination law.

a.       Legitimate objective: The exception is pursuing the legitimate objectives of protecting public safety, public order, and rights of others. This exception solely applies to the expression of beliefs which advocate conduct that would constitute a serious offence. The definition of serious offence in subclause 35(2) is intended to capture serious offences which cause harm (including financial harm) to individuals and to the community at large. The exception recognises that while it is not unlawful to hold such beliefs, the public expression of those beliefs in a manner which could reasonably be perceived as advocating the commission of serious offences should not be protected by anti‑discrimination law. This is a legitimate objective consistent with the ICCPR.

b.      Rationally connected to its objective: In order for this exception to apply, three elements must be satisfied, which appropriately confine and limit the scope of the exception and ensure that the exception is connected to its objective. These objective criteria are that the person must have expressed the belief, a reasonable person would conclude, having regard to all the circumstances that the person is counselling, promoting, encouraging or urging conduct that would constitute a serious offence and it is reasonable to assume that the person holds the belief at the time the discrimination occurs. These criteria are reasonable and objective as they only capture beliefs which have been expressed by the relevant individual that are still held by that person, ensuring that people who no longer hold the relevant belief are not captured by this provision. These criteria ensure that there is a rational connection between the limitation and the objective to be achieved.

c.       Proportionate to its objective: The exception is the most appropriate way of achieving the objective. It is limited to situations where the person has expressed a belief and it is reasonable to assume the person currently holds that belief. In addition, this exception solely applies to the expression of beliefs which advocate conduct which would constitute a serious criminal offence. This exception requires that the term of imprisonment for the relevant offence must be at least two years, ensuring that the operation of this exception is proportionate to the objective. 

49.                   Clause 36 of the Bill provides a general exception for the conferral of charitable benefits. The exception is intended to operate alongside clause 7, which provides that certain conduct engaged in by religious bodies, which includes certain religious charities, does not constitute discrimination.

50.                   The provision ensures that all charities, including secular charities, may continue to provide charitable benefits to particular religious groups so long as it is in accordance with their governing rules or the provisions of a deed, will or other instrument. For example, if a charity’s governing rules specified that the charity could collect and disseminate funds for the benefit of a persecuted religious minority, it would not be unlawful for that charity to provide charitable benefits only to members of that religious minority. This recognises the vital role that charities play in civic life and that in order to address disadvantage it may be necessary to restrict benefits to persons most in need, which may include restricting benefits to persons of a particular religious group or activity. This exception is similar to exceptions provided in the Age Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act.

a.       Legitimate objective: The exception is necessary to ensure charitable activity that would otherwise be unlawful is able to continue in order to further the social good provided by charities, including to particular religious groups. Without this exception, there would be a significant detriment to those people in Australian society who benefit from charitable activities, such as religious groups in need. As a result, the exception is necessary to pursue the legitimate objective of allowing particular beneficial charitable activities to continue.

b.      Rationally connected to its objective: The exception only applies to provisions of a charity’s governing rules, or provisions of a deed, will or other instrument, that confer charitable benefits or enable the conferral of such benefits to persons who have or engage in a particular religious belief or activity and conduct engaged in to give effect to such rules. The criteria are intended to be objective and reasonable in ensuring that the conduct is appropriately governed by rules that are publicly available or is necessary to comply with a legal obligation pursuant to a deed, will or other instrument. These criteria ensure that there is a rational connection between the limitation and the objective to be achieved.

c.       Proportionate to its objective: The differential treatment is limited to the conferral of charitable benefits to people with a particular religious belief or activity. The criteria are directed at maintaining charitable activities for the benefit of particular groups. The exception does not extend to conduct of a charity outside the provision of benefits.

51.                   Subclauses 37(1) and (3) of the Bill provide a general exception for conduct in direct compliance with Commonwealth, state or territory legislation. The exception would permit people to engage in legitimate differential treatment on the basis of religious belief or activity when acting in direct compliance with legislation, unless that legislation is prescribed by the regulations. By allowing discrimination in direct compliance with legislation, this could limit an individual’s rights to equality and non-discrimination. This exception is similar to exceptions provided in the Age Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act.

a.       Legitimate objective: The exception is necessary to avoid inconsistency in the law, which would be contrary to the principles of legality as set down across Articles 14, 15 and 26 of the ICCPR. It recognises that, in some instances, differential treatment as set out in Commonwealth, state and territory statutes is legitimate, but cannot be exhaustively listed in the Bill. The exception therefore permits differential treatment where it is in direct compliance with a provision of a law, unless it is a law prescribed under the regulations.

b.      Rationally connected to its objective: Commonwealth, state and territory laws, and Commonwealth legislative instruments, are subject to parliamentary scrutiny and debate. In many jurisdictions, including the Commonwealth, laws are scrutinised specifically for their impact on human rights before they are enacted. There is also a safeguard mechanism in clause 37 to ensure the Governor-General can prescribe laws under the regulations to which this exception does not apply, recognising that there may be certain laws under which it is not appropriate to permit differential treatment. This ensures that there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective.

c.       Proportionate to its objective: This exception is limited to conduct engaged in ‘direct compliance’ with Commonwealth, state and territory laws. This will require a very strong connection between the conduct and the relevant law. In addition, the mechanism for the regulations to prescribe laws under which it would not be appropriate to permit differential treatment, will ensure there is a safeguard for restricting the scope of this exception to certain laws as necessary.

52.                   Subclause 37(2) of the Bill provides a general exception for the performance of functions or exercise of powers relating to law enforcement, national security or intelligence under a Commonwealth law or program. This exception provides that it is not unlawful for a person performing a function or exercising a power relating to law enforcement, national security or intelligence under a law or program of the Commonwealth to engage in legitimate differential treatment against another person on the ground of the other person’s religious belief or activity, provided that the conduct constituting the discrimination is reasonably necessary in performing the function or exercising the power. By allowing discrimination in these prescribed circumstances, this could limit an individual’s rights to equality and non‑discrimination.

a.       Legitimate objective: The exception is necessary to ensure that nothing in the Bill interferes with the ability of bodies that perform law enforcement, national security and intelligence functions, or exercise associated powers, to continue to protect Australia’s national security. The exception recognises that, in some circumstances, a person’s religious belief or activity may have a connection to law enforcement, national security or intelligence. For example, criminal or terrorist acts may be motivated by certain religious beliefs, and so those beliefs would be relevant to a law enforcement investigation. The law enforcement, national security and intelligence functions and powers that this provision addresses are essential for the maintenance of security and public order in Australian society. The exception clarifies that nothing in this Bill will interfere with the lawful exercise of such powers and functions.

b.      Rationally connected to its objective: The provision does not create a complete exception for all conduct relating to law enforcement, national security or intelligence. Instead, it is subject to limitations that ensure the exception is a reasonable limitation on the rights to equality and non-discrimination. The exception is limited to the performance of a function or the exercise of a power related to law enforcement, national security or intelligence under a Commonwealth law or program. This ensures that the exception only operates where there is a connection between the conduct and functions or powers that are relevant to law enforcement, national security or intelligence. Accordingly, the exception does not apply to exempt powers and functions of a law enforcement, national security or intelligence agency that are not related to law enforcement, national security or intelligence, for example in relation to procurement.

c.       Proportionate to its objective: Paragraph 37(2)(b) requires that the conduct be reasonably necessary in performing the function or exercising the power. This restriction ensures that there is a clear nexus between the discriminatory conduct and the law enforcement, national security or intelligence objective. This is a significant safeguard on the operation of the exception, and ensures that this exception is a balanced way of achieving the objective.

53.                   Clause 38 of the Bill provides an exception for compliance with court and tribunal orders, determinations and industrial instruments. The exception operates to permit discrimination which is in direct compliance with a court or tribunal order or determination or industrial instrument. It is intended to ensure that courts and tribunals retain the discretion to make whatever orders are necessary, and ensure that compliance with such orders is not unlawful under this Bill. By allowing discrimination, this exception could limit an individual’s rights to equality and non‑discrimination. This exception is similar to exceptions provided in the Age Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act.

a.       Legitimate objective: The exception is necessary to ensure the proper functioning of the judiciary and legal system, which is a fundamental aspect of the rule of law, and to assist with maintaining the separation of powers, by providing that courts and tribunals remain able to make whatever orders they see fit in any given matter. Maintaining Australia’s constitutional system of government and the rule of law is consistent with the emphasis on effective remedies in Article 2 and 14 of the ICCPR, the principle of equality in Article 26 of the ICCPR, and the right to self-determination in Article 1 of the ICCPR.

b.      Rationally connected to its objective: The exception is limited to conduct that is in direct compliance with the relevant order, determination or instrument. This requires a very strong connection between the conduct and the relevant order, determination or instrument. This ensures that there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective.

c.       Proportionate to its objective: Ensuring that people can comply with court and other orders without risking non-compliance with this Bill is proportionate to the objective of maintaining the efficacy of Australia’s courts and legal system.

54.                   Subclause 39(1) of the Bill provides a specific exception to the prohibition of discrimination in work for domestic duties. The exception would permit a person to engage in legitimate differential treatment in relation to whom they hire to perform domestic duties in that person’s residence. By allowing discrimination in offering employment, this could limit an individual’s rights to equality and non‑discrimination. This exception is similar to exceptions provided in the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act.

a.       Legitimate objective: This exception is necessary in order to avoid interference in the private, family or home life of a person which is guaranteed under Article 17 of the ICCPR. Anti-discrimination law is intended to prevent discrimination in areas that are regulated by the public authorities. Without this exception, anti‑discrimination law would extend beyond areas regulated by the public authorities, and instead intrude into the private sphere. The exception ensures that a person is guaranteed control over other people’s access to, and employment within, their home, and further ensures that conduct in relation to an individual’s home or private life is not subject to complaints of unlawful discrimination.

b.      Rationally connected to its objective: This exception is clearly and justifiably limited to domestic duties in private residences. The application of the exception is based on an assessment of connection to the employment in the person’s home. These criteria ensure that there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective.

c.       Proportionate to its objective: An exception is required in this area to ensure that anti-discrimination law does not intrude into private and family life. The exception is limited to discrimination in offering employment to persons to undertake domestic duties and does not apply to conduct once persons are hired, such as dismissal. For these reasons the limitation is proportionate to the objective.

55.                   Subclauses 32(2) to (6) of the Bill provide specific exceptions to the prohibition of discrimination in work for employers, partnerships, qualifying bodies and employment agencies in relation to the inherent requirements of work. These exceptions would permit a person to engage in legitimate differential treatment in certain aspects of work if the person being discriminated against would be unable to carry out the inherent requirements of the position or the relevant profession, trade or occupation. By allowing an employer, partnership, qualifying body or employment agency to discriminate in these circumstances, this could limit an individual’s rights to equality and non‑discrimination. This exception is similar to exceptions provided in the Age Discrimination Act and the Disability Discrimination Act.

a.       Legitimate objective: These provisions are necessary to ensure that employers, partnerships, qualifying bodies and employment agencies are not obliged to engage people to undertake work or to grant qualifications or authorisations that they are not able to perform. In addition, these provisions are also necessary to ensure that employers, partnerships, qualifying bodies and employment agencies are able to require that persons be of a particular religious belief or activity where that religious belief or activity is an essential element of a particular role, profession, trade or occupation, such as to perform a chaplaincy role. This is necessary for the basic function of businesses in the Australian economy and for the integrity of Australian professions, trades and occupations.

b.      Rationally connected to its objective: The limitation of the rights to equality and non‑discrimination is restricted to specific areas of work (being employment, partnerships, employment agencies and qualifying bodies), and in the context of employment and partnerships is limited to only certain conduct, to ensure that these exceptions are only so broad as necessary. Further, these exceptions must be applied with reference to the inherent requirements of a single specific position. These criteria ensure that there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective.

c.       Proportionate to its objective: These exceptions recognise that some positions, professions, trades and occupations require the performance of functions which may be inconsistent with particular religious beliefs or activities, or require persons to be of a particular religious belief or engage in a particular religious activity. These exceptions only apply to requirements which are essential to the relevant position. This high standard ensures that the application of the exception in practice is proportionate to the objective the exception is intended to address.

56.                   Subclause 40(1) of the Bill provides a specific exception to the prohibition of discrimination in accommodation for resident accommodation providers. The exception would permit a landlord to engage in legitimate differential treatment in providing accommodation, provided that the landlord is living in the premises, or has near relatives living on the premises, and the accommodation is for no more than three people other than the landlord or the landlord’s near relative. By allowing landlords to discriminate in this manner, this could limit the rights to equality and non‑discrimination of potential or existing residents. This exception is similar to exceptions provided in the Age Discrimination Act, the Disability Discrimination Act and the Sex Discrimination Act.

a.       Legitimate objective: The exception is necessary for avoiding interference in the private, family or home life of a person, as guaranteed under Article 17 of the ICCPR. The exception ensures that a person is guaranteed control over other people’s access to their home, and further ensures that conduct in relation to an individual’s home or private life is not subject to complaints of unlawful discrimination.

b.      Rationally connected to its objective: The exception is clearly limited to accommodation on the premises in which the accommodation provider or a near relative resides. The term near relative is exhaustively defined in subclause 5(1) of the Bill. These criteria ensure that there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective.

c.       Proportionate to its objective: The exception only applies where the accommodation is provided for no more than three people, ensuring that the exception only applies to accommodation where decisions about residents are likely to have a significant impact on the domestic situation of others living on those premises.

57.                   Subclause 40(2) to (5) of the Bill provides specific exceptions to the prohibition of discrimination in accommodation and associated facilities in relation to conduct engaged in by persons that establish, direct, control or administer a camp or conference site which provides accommodation and is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. These exceptions apply to conduct that is in good faith, in accordance with a publicly available policy and either a person of the same religion could reasonably consider the conduct to be in accordance with the doctrines of that religion or the conduct was taken to avoid injury to the religious susceptibilities of adherents of that religion. By allowing persons to discriminate in these circumstances, these exceptions limit the rights to equality and non‑discrimination of people seeking or utilising accommodation or associated facilities from a religious camp or conference site.

a.       Legitimate objective:These provisions are necessary to ensure that religious camp or conference sites can continue to conduct themselves in accordance with their religion, through making decisions about the provision accommodation or associated facilities in accordance with the doctrines of their religion or the susceptibilities of adherents of the religion. Without this provision, these religious organisations would find it more difficult to establish themselves and maintain their religious ethos in the course of conducting their affairs.

b.      Rationally connected to its objective: These provisions solely provide that certain religious camps and conference sites do not discriminate under this Act by engaging in conduct in relation to the provision of accommodation or associated facilities that is in accordance with the doctrines of their religion or is necessary to avoid injury to the susceptibilities with adherents of the religion. This ensures there is a reasonable nexus between the religious ethos that the provision is trying to recognise and protect, and the differential treatment permitted by the provision.

c.       Proportionate to its objective:The ability to engage in legitimate differential treatment on the basis of religion supports the ability for certain religious organisations to make decisions about the provision of accommodation or associated facilities in accordance with their religious doctrines and beliefs. The provision requires an objective connection between the conduct of the religious organisation and the beliefs and practices of the relevant religion, and also requires that the conduct must be in accordance with a publicly available policy. The limitation is limited to decisions about the provision of accommodation and associated facilities and it does not provide a general basis for discrimination. On this basis, the limitation is proportionate to the objective sought.

58.                   Clause 41 of the Bill provides a specific exception from the prohibition of discrimination for disposal of land by will or gift. The exception would permit a person to engage in legitimate differential treatment in who they give their land to, either by will or by gift. For example, a person would be permitted to provide in their will that another person could only inherit a particular interest in land if they attended a particular religious service. By allowing persons to discriminate in this manner, the exception limits the rights to equality and non‑discrimination for individuals on the basis of their religious belief or activity. This exception is similar to exceptions provided in the Age Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act.

a.       Legitimate objective: The exception is necessary to ensure that there is a distinction between actions in the public sphere (such as disposal of land on the market) and actions which are inherently private and should therefore not be subject to anti-discrimination law (such as disposal of land to friends or relatives for no consideration).

b.      Rationally connected to its objective: The land must be disposed of by either a will or a gift. This provision does not provide a general exception for disposal of land to near relatives. The criteria ensure there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective.

c.       Proportionate to its objective: The limitation is restricted to types of disposal of land which are inherently personal and gratuitous, and does not extend beyond these types of disposal into actions which have an inherently public dimension, such as the sale of land on the market.

59.                   Clause 42 of the Bill provides a specific exception from the prohibition of discrimination in membership of clubs for clubs with religious membership. The exception provides that a club may engage in legitimate differential treatment with respect to membership of its club, if membership of the club is restricted to persons who hold or engage in a particular religious belief or activity. For example, a Catholic club which restricts membership to Catholic persons may refuse to admit a Jewish person or a Protestant person as a member of that club. This exception could limit the rights to equality and non‑discrimination of members or potential members. This exception is similar to exceptions provided in the Sex Discrimination Act and the Disability Discrimination Act.

a.       Legitimate objective: This exception is necessary to ensure that it is not unlawful for clubs whose membership is restricted to persons of a particular religious belief or activity to require that members and potential members be of that religious belief or activity. The exception recognises the significant and meaningful role that religious clubs play in the community, including in providing support to members and promoting, advocating and protecting the interests of people in their religious group. This protects the right to freedom of religion under Article 18 of the ICCPR, and the right to freedom of association under Article 22 of the ICCPR.

b.      Rationally connected to its objective: Whether an organisation is a ‘club’ is a question of fact, in accordance with the definition in subclause 5(1) of the Bill. ‘Club’ is defined as an association of persons for social, literary, cultural, political, sporting, athletic or other lawful purposes which provides and maintains its facilities, in whole or in part, from the funds of the association. This ensures that the exception is narrowly applied to organisations that maintain facilities and which therefore have a public character. The requirement that the membership of the club be restricted only to persons who have or engage in a particular religious belief or activity ensures there is a rational connection to allowing religious clubs to continue to limit membership to adherents of their religion, without permitting wider discrimination.

c.       Proportionate to its objective: The exception does not allow exclusion of people from certain religions from an otherwise public space, but rather is limited to membership of religious clubs, which accords with the existing practices that the exception is designed to protect. The exception does not permit clubs in general to exclude persons of a particular religion from their premises, or refuse to provide those persons with goods, services or facilities.

60.                   Clause 43 of the Bill provides an exception for voluntary bodies with religious membership. The exception provides that a voluntary body may engage in legitimate differential treatment in the admission of people as members, or the provision of benefits, facilities or services to members if membership of the voluntary body is restricted to persons who hold or engaged in a particular religious belief or activity. For example, a Catholic bible study group meeting in a local library would be permitted to refuse membership to non-Catholic persons. The exception would limit the rights to equality and non‑discrimination of someone refused membership of the group, or a member who is not provided with certain benefits, facilities or services of the voluntary body. This exception is similar to exceptions provided in the Age Discrimination Act and the Sex Discrimination Act.

a.       Legitimate objective: The exception is necessary to ensure that voluntary bodies that restrict membership to persons of a particular religious belief or activity can continue to engage in legitimate differential treatment in relation to the admission of members and the provision of benefits, services and facilities to their members. This protects the right to freedom of association under Article 22 of the ICCPR. Freedom of association necessarily also requires the freedom to choose who not to associate with, provided that choice does not have a publicly discriminatory effect.

b.      Rationally connected to its objective: The criteria for whether an organisation is a voluntary body are clearly articulated in subclause 5(1) of the Bill. The exception is reasonably limited to conduct in relation to membership or the provision of benefits, facilities and services to members. These criteria ensure that there is a rational connection between the limitation and the objective, and that the measure will be effective at targeting and achieving the objective.

c.       Proportionate to its objective: The limitation is restricted to membership and the provision of benefits, facilities and services to members. It does not provide a blanket exception, but instead is targeted to ensure that the specific purpose of the exception is achieved without creating broader latitude for discrimination.

61.                   Clauses 44 to 48 of the Bill contain a general power for the Commission to grant temporary exemptions. This power allows the Commission to grant temporary exemptions for conduct that would otherwise constitute unlawful discrimination under the Bill. These provisions provide flexibility and recognise that, in particular circumstances, conduct which would otherwise be unlawful discrimination should be permitted on a temporary basis. In making a decision about an exemption, the Commission must have regard to the objects of the Bill specified in clause 3, and the duties of the Commission as set out in section 10A of the AHRC Act. Any exemptions must be made publicly available on the Federal Register of Legislation, and are time-limited. Applications may be made to the Administrative Appeals Tribunals for review of decisions relating to an exemption. These conditions ensure that the Commission’s discretion is appropriately limited, transparent, subject to review and governed by legality and due process.

Right to freedom of expression

62.                   Article 19(1) of the ICCPR establishes the ‘right to hold opinions without interference’. The Bill is consistent with this right in its protection of religious belief. The Bill ensures that holding an opinion arising from religious belief is included in the protected attribute. In this respect, the Bill does not limit the right contained in Article 19(1).

63.                   Article 19(2) of the ICCPR protects freedom of expression. Article 19(3) of the ICCPR also recognises that freedom of expression carries ‘special duties and responsibilities’, and is subject to restrictions as ‘provided by law’ and necessary for ‘respect of the rights or reputations of others’ or ‘for the protection of national security, or of public order, or of public health or morals’.

Exception for counselling a serious offence

64.                   Clause 35 of the Bill provides a general exception for discrimination on the basis that a person has expressed a religious belief and in doing so, counsels, promotes, encourages or urges conduct that would constitute a serious offence under the law of the Commonwealth, a state, or a territory. The provision does not make the expression of a religious belief unlawful. In situations where the exception may limit the right to freedom of expression, the limitation is prescribed by law, in pursuit of a legitimate objective, is rationally connected to its objective, and is a proportionate way to achieve the objective (see analysis set out above in paragraph 49 in relation to limitation of the rights to equality and non‑discrimination).

Statements of belief

65.                   Clause 12 of the Bill provides that certain statements of belief do not, in and of themselves, constitute discrimination under any Australian anti‑discrimination law or contravene subsection 17(1) of the Anti‑Discrimination Act 1998 (Tas) or any other law prescribed by regulations for the purpose of the provision. ‘Statement of belief’ is defined in subclause 5(1) to include oral or written words or other communication (other than physical contact) expressed about a person’s religious belief, as well as statements about not holding a religious belief, made in good faith and genuinely considered to be in accordance with the doctrines of a religion or relate to the fact of not holding a religious belief.

66.                   Subsection 17(1) of the Tasmanian Anti-Discrimination Act prohibits conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of their gender, race, age, sexual orientation, gender identity, intersex variations of sex characteristics, disability, marital status, relationship status, breastfeeding, parental status or family responsibilities. Subsection 17(1) has been specifically listed as it is the only provision of this nature in anti-discrimination law across Australia. It has a demonstrated ability to limit the right to freedom of expression, including the expression of religious beliefs. The protection in clause 12 is limited to statements of belief as defined in subclause 5(1) of the Bill and is not intended to capture discriminatory conduct, which reflects that the right to freedom of expression is subject to restrictions and carries with its special duties and responsibilities.

67.                   For clause 12 to apply, statements must be made in good faith and must not be malicious, or harass, threaten, intimidate or vilify a person or group of persons. In addition, the statement must be of a belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion or belief that the person genuinely considers to relate to the fact of not holding a religious belief. The provision is intended to protect a person’s freedom of expression with respect to their religious beliefs or beliefs about not holding a religious belief in good faith regardless of Commonwealth, state or territory anti‑discrimination laws that may otherwise make the statement unlawful. Clause 12 is important as religion is a fundamental part of Australia’s strong and diverse social fabric. A person’s religious belief, or lack of belief, is of significance to their identity, sense of self and the manner in which they live their life. The provision protects the ability of individuals to explain, discuss, share and express their fundamental beliefs. By acknowledging that merely stating a belief, that meets the restrictions within the criteria in subclause 5(1) and clause 12, should not amount to discrimination, the Bill promotes freedom of expression.

Advertising offence

68.                   Clause 51 of the Bill creates an offence for publishing or displaying an advertisement that indicates an intention to engage in conduct made unlawful by the Bill. While the measure promotes the right to freedom of religion and the rights to equality and non-discrimination, it may limit the right to freedom of expression in some situations. In situations where the measure may limit the right to freedom of expression, the limitation is prescribed by law, in pursuit of a legitimate objective, is rationally connected to its objective, and is a proportionate way to achieve the objective.

a.       Prescribed by law: The offence is expressed clearly and precisely in a statute of the Parliament of Australia which will be publicly accessible.

b.      Legitimate objective:This limitation on the right to freedom of expression is justified because it pursues the legitimate objective of preventing discrimination, as well as preventing people from undermining the purpose of the Bill through public displays of discriminatory intent.

c.       Rationally connected to its objective: The limitation on the right to freedom of expression is rationally connected to its objective as the provision requires a reasonable assessment of whether the advertisement indicates an intention to engage in conduct that is made unlawful by the Bill. This ensures that the offence is appropriately limited in scope.

d.      Proportionate to its objective: The creation of the offence is proportionate to the objective of preventing the negative impact of advertisements with discriminatory intent on participation in public life. Without the creation of the offence, there would not be a sufficient disincentive for engaging in particularly public and damaging discrimination. Because these advertisements may have the effect of promoting discriminatory attitudes in the community, the creation of an offence is proportionate to the objective.

Privacy and reputation

69.                   Article 17 of the ICCPR establishes a prohibition on arbitrary or unlawful interference with privacy, family, home or correspondence, as well as a prohibition on unlawful attacks on honour and reputation. Article 17 also establishes that everyone has the right to the protection of the law against such interference or attacks.

70.                   Clause 74 of the Bill would protect this right by creating an offence of disclosing personal information obtained in the course of work for the Commission (either as a Commissioner, staff member, or delegate). This offence is intended to ensure that complainants can be confident that sensitive, personal information provided to the Commission will not be improperly dealt with. To the extent that this protects the right to privacy under Article 17 of the ICCPR, this provision is compatible with Australia’s international human rights obligations.

71.                   The offence has a complete defence if the conduct is authorised by a law of the Commonwealth or a law of a state or territory, or if the conduct is engaged in during the performance of a function under or in connection with the Bill, in the exercise of a power conferred on the Commission by the Bill, or in accordance with an arrangement in force under section 16 of the AHRC Act (section 16 provides for inter-governmental arrangements). As the defence permits the disclosure of personal information, it is a limitation on the right to privacy of a person whose information is disclosed.

a.       Prescribed by law: The limitation is expressed clearly and precisely in a statute of the Parliament of Australia which will be publicly accessible.

b.      Legitimate objective:The limitation has the objective of ensuring that a person working for the Commission can fulfil their functions of inquiring into and attempting to conciliate complaints, which may require disclosure of some personal information to a person other than the person to which the information relates.

c.       Rationally connected to its objective: The limitation clearly addresses the objective by providing four specific instances where disclosure is not an offence. Each paragraph or subparagraph is directly related to the satisfaction of the functions and purpose of the Commission, or specifically related to another Commonwealth, state or territory law that authorises the conduct. This ensures that there is a clear link between the conduct constituting the limitation and the specific categories that must be exempted from the operation of the offence in order to meet the objective. Therefore, there is a rational connection to the objective.

d.      Proportionate to its objective: The limitation is itself limited to specific types of conduct which are exempted from the offence. The provision balances the necessity to permit the disclosure of personal information in some circumstances without creating a prescriptive list of circumstances in which this could be done as this would make the provision inflexible and less likely to capture the full range of conduct requiring an exemption. The limitation is proportionate to the objective, because it is the most balanced and least restrictive way of achieving the objective.

Right to work

72.                   Article 7 of ICESCR establishes that a person is entitled to ‘just and favourable conditions of work’, including in remuneration, conditions of work, and equal opportunities for advancement, and entitlements to rest and holidays with pay. The Bill promotes this right as it protects against discrimination in employment, which is defined broadly in subclause 5(1). This ensures that all individuals, in all types of work, can benefit from the protections against discrimination contained in the Bill.

Education

73.                   Article 13 of ICESCR sets out the right to education, including free and compulsory primary education, generally available and accessible secondary education, and equal access to tertiary education. Article 13(3) also recognises the liberty of parents to choose schools for their children in conformity with their own religious and moral convictions.

74.                   The Bill’s inclusion of education as a protected area of public life in Division 3 of Part 4 is in accordance with this right. Clause 7, which provides that religious educational institutions may operate in accordance with their faith, is in accordance with Article 13(3). The provision ensures that religious educational institutions can maintain their religious character and thereby provide parents with the option of choosing a religious education for their children. In addition, Article 18(4) recognises the liberty of parents to ensure the religious and moral education of children in conformity with their own convictions.

75.                   Clause 11 also provides that educational institutions are able to preference people in employment who hold or engage in a particular religious belief or activity. The preference may be given to people of any, or no, religion, as long as the preference is given in good faith and in accordance with a publicly available policy, regardless of relevant State or Territory provisions. Subclause 11(2) gives the Minister the ability to make a legislative instrument clarifying that clause 11 overrides a prescribed state or territory law that: prohibits discrimination on the ground of religious belief; and interferes with an educational institution’s ability to preference people in employment decisions. Subclause 11(2) has no effect unless a law is prescribed.

Conclusion

76.                   The Bill is compatible with human rights because it advances the protection of human rights, particularly the right to freedom of religion, and the rights to equality and non‑discrimination. To the extent that it may limit rights, those limitations are prescribed by law, in pursuit of a legitimate objective, are rationally connected to the objective, and are a proportionate way of achieving that objective.

 

 


NOTES ON CLAUSES

List of abbreviations

Acts Interpretation Act

Acts Interpretation Act 1901

Age Discrimination Act

AHRC Act 

Age Discrimination Act 2004

Australian Human Rights Commission Act 1986

AFP

Australian Federal Police

Tasmanian Anti-Discrimination Act

Anti-Discrimination Act 1998 (Tas)

Commission

Australian Human Rights Commission

Disability Discrimination Act

Disability Discrimination Act 1992

Fair Work Act

Fair Work Act 2009

ICCPR

International Covenant on Civil and Political Rights

Legislation Act

Legislation Act 2003

Racial Discrimination Act

Racial Discrimination Act 1975

Religious Freedom Review

Report of the Expert Panel into Religious Freedom

Sex Discrimination Act

Sex Discrimination Act 1984

 


 

PART 1—PRELIMINARY

Clause 1          Short title

1.                       Clause 1 provides for the short title of the Bill, once enacted, to be the Religious Discrimination Act 2021.

Clause 2          Commencement

2.                       Clause 2 provides for the commencement of each provision of the Bill, as set out in the table at subclause 2(1). The table provides that the whole of this Bill commences on a date to be set by Proclamation, or otherwise six months from the day after Royal Assent.

3.                       Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not a part of the Bill, and information may be inserted in this column, or information in it may be edited, in any published version of this Bill.

Clause 3          Objects of this Act

4.                       Clause 3 sets out the objects of this Bill.

5.                       This clause is intended to provide a clear statement of the principles and objectives underpinning the Bill. This clause highlights that this Bill is intended to promote community understanding that people have the same fundamental rights, regardless of their religious belief or activity.

6.                       The clause recognises the freedom of all people to hold or engage in a religious belief or activity of their choice and to manifest this either individually or in community with others, consistent with the International Covenant on Civil and Political Rights (ICCPR).

7.                       Subclause 3(1) recognises the freedom of all people to have or adopt a religion or belief of their choice, and freedom to manifest this religion or belief either individually or in community with others and provides that the objects of the Bill are:

(i)           to eliminate, so far as is possible, discrimination against persons on the ground of religious belief or activity in a range of areas of public life; and

(ii)         to ensure, as far as practicable, that everyone has the same rights to equality before the law, regardless of religious belief or activity; and

(iii)       to promote the recognition and acceptance within the community of the principle that people of all religious beliefs, including people with no religious belief, have the same fundamental rights in relation to those beliefs; and

(iv)       to ensure that people can, consistently with Australia’s obligations with respect to freedom of religion and freedom of expression, and subject to specified limits, make statements of belief.

8.                       Paragraphs 3(1)(a), (b) and (c) broadly reflect the existing objects clauses in other federal anti‑discrimination laws.

9.                       Paragraph 3(1)(d) reflects the principles underpinning clause 12 of the Bill, which protects the expression of certain statements of belief, in good faith, from the operation of certain provisions of Commonwealth, state and territory anti‑discrimination law.

10.                   As section 15AA of the Acts Interpretation Act provides that statutes should be interpreted in accordance with their objects, all the other provisions of this Bill are to be read as being designed to carry out these objects as far as is possible.

11.                   Subclause 3(2) provides that in giving effect to the objects of the Bill, regard is to be had to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights. This includes the right to freedom of religion.

12.                   This implements Recommendation 3 of the Religious Freedom Review. The Religious Freedom Review found that the objects clauses of existing anti‑discrimination legislation referred to the promotion of the right to equality or equality of opportunity, but made no express reference to other human rights, such as the right to freedom of religion.

13.                   The principles listed in paragraphs 3(2)(a) and (b) broadly reflect the existing duty of the Commission to ensure that its functions, under the AHRC Act or any other Act, are performed with regard to the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights (paragraph 10A(1)(a) of the AHRC Act).

14.                   The principles listed in paragraph 3(2)(a) reflect the well-established and foundational principle of international human rights law that all rights must be treated with equal importance, and no right should be prioritised at the expense of any other. These principles clarify the relationship between human rights and recognise that all rights are interconnected and interdependent, and that there is no hierarchy of rights at international law.

15.                   While not binding at international law, the Siracusa Principles of the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (the Siracusa Principles) provide guidance on the circumstances in which it may be appropriate to limit those rights contained in the ICCPR. This includes the principle that for a limitation of a particular right to be ‘necessary’ it must:

(i)           be based on one of the grounds recognised in the relevant article as justifying a limitation

(ii)         respond to a pressing public or social need

(iii)       pursue a legitimate aim and be proportionate to that aim.

16.                   The Religious Freedom Review noted the importance of ensuring that the right to freedom of religion is given appropriate weight in situations where it is in tension with other public policy considerations, including other human rights. In accordance with the ICCPR and Siracusa Principles, this Bill only limits the right to freedom of religion and other rights in circumstances where it is necessary to do so.

17.                   To ensure consistency across anti-discrimination law, the Human Rights Amendment Bill 2021 will insert provisions analogous to subclause 3(2) into the existing objects clauses of the Age Discrimination Act, Disability Discrimination Act, Sex Discrimination Act and the new objects clause in the Racial Discrimination Act.

Clause 4          Simplified outline of this Act

18.                   Clause 4 provides a simplified outline of the Bill to assist the reader.

19.                   The outline notes that the Bill makes discrimination on the basis of religious belief or activity unlawful in a range of areas of public life, including work, education, access to premises and the provision of goods, services and accommodation.

20.                   The outline notes that such discrimination is unlawful if it occurs, for example, because of a religious belief or activity a person holds or engages in, or because of the person’s association with someone else who holds or engages in a religious belief or activity. This is subject to certain exceptions and exemptions.

21.                   Certain conduct is not discrimination under the Bill, such as conduct by religious bodies in some circumstances. Certain statements of belief in and of themselves do not constitute discrimination for the purposes of specified legislation, including this Bill.

22.                   In addition, the outline notes that certain conduct involving victimisation and discriminatory advertisements are criminal offences.

23.                   The outline notes that conduct that is unlawful or an offence under this Bill constitutes ‘unlawful discrimination’ under the AHRC Act and complaints can be made to the Commission about such conduct.

24.                   The outline notes that the Bill establishes the office of Religious Discrimination Commissioner within the Commission and confers certain functions on the Commission.

25.                   This outline is included to assist readers to understand the substantive provisions of this Bill. It is not intended to be comprehensive and readers should rely on the substantive provisions in the Bill.

Clause 5          Definitions

26.                   Clause 5 defines terms that are used in the Bill.

27.                   Definitions are explained in the context of the clause to which they are relevant. For example, the meaning of the term ‘statement of belief’ is discussed at clause 12. 

28.                   The definition of ‘religious belief or activity’ is discussed below given its relevance to the application of the Bill as a whole.

29.                   The Bill does not define the term ‘person’. Section 2C of the Acts Interpretation Act provides that expressions used to denote persons generally, such as person, include a body politic or corporate as well as an individual. Accordingly, consistent with that Act, a person for the purposes of this Bill includes natural persons, bodies corporate and bodies politic. This will ensure that the Bill prohibits all discriminatory conduct, regardless of whether that conduct was engaged in by a natural person, body corporate or body politic.

30.                   The Bill is intended primarily to protect individuals from discrimination and does not envisage that non-natural persons, such as bodies corporate, will hold or engage in religious beliefs or activities. However, the Bill does not preclude bodies corporate or other non‑natural persons from being ‘persons aggrieved’ for the purposes of the AHRC Act in appropriate cases. For example, unincorporated associations may make a complaint under this Bill where the members who comprise the unincorporated association would be persons aggrieved (as per Executive Council of Australian Jewry v Scully (1998) 79 FCR 537). In addition, clause 16 of the Bill may protect a body corporate from discrimination on the basis of its association with a natural person who holds or engages in a religious belief or activity.

31.                   This is consistent with existing anti-discrimination law, which protects individuals from discrimination on the basis of their inherent attributes, which can only be held by a natural person. This is also consistent with the ICCPR, namely the freedom of all people to engage in a religious belief or activity of their choice and to manifest this either individually or in community with others.

Definition of religious belief or activity

32.                   Subclause 5(1) defines the term ‘religious belief or activity’ for the purposes of this Bill to mean:

(i)           holding a religious belief; or

(ii)         engaging in religious activity; or

(iii)       not holding a religious belief; or

(iv)       not engaging in, or refusing to engage in, religious activity.

33.                   This definition implements Recommendation 15 of the Religious Freedom Review, which recommended that the Religious Discrimination Act make it unlawful to discriminate on the basis of a person’s religious belief or activity, including on the basis that a person does not hold any religious belief.

34.                   This term is defined broadly and explicitly includes not holding a religious belief or not engaging in, or refusing to engage in, a religious activity, in accordance with the recommendation of the Religious Freedom Review. This definition reflects the definition of religious belief or activity (or analogous terms) in state and territory anti-discrimination legislation, such as the Anti‑Discrimination Act 1992 (NT), Anti‑Discrimination Act 1991 (Qld) and the Equal Opportunity Act 2010 (Vic).

‘Religious belief’

35.                   Consistent with the approach taken in other Australian anti-discrimination laws, the Bill does not seek to exhaustively define the concept of ‘religion’, or further to define the concept of ‘religious belief or activity’. Rather, the Bill is informed by the approach taken by the High Court in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120, which adopted a broad, principled approach to the concept of religion and accepted that faith traditions may emerge or develop over time.

36.                   In Church of the New Faith v Commissioner of Pay-Roll Tax (Vic), Mason CJ and Brennan J provided that, for the purposes of the law, the criteria for a religion is two‑fold: ‘first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion’ (at page 137).

37.                   Rather than recognise and protect particular doctrines, tenets, or faith traditions, the High Court accepted that it is the dignity of the believer and the freedom to adhere to a religion of his or her choice that are worthy of protection at law. In the same vein, the Bill recognises that a prescriptive or exhaustive definition of ‘religion’ or ‘religious belief or activity’ may be too rigid or become easily outdated, and so undermine the principle that the freedom of religion is conferred equally on all.

38.                   Religious belief is intended to include beliefs associated with major faith traditions (such as Buddhism, Christianity, Hinduism, Islam or Judaism) in addition to the beliefs of smaller and emerging faith traditions. The concept of religious belief is also intended to capture Indigenous spirituality, consistent with the High Court’s definition of religion in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (per Murphy J at 9-10).

39.                   The term religious belief is intended to capture genuine religious beliefs. It is not intended to capture, for the purposes of this Bill, beliefs caused by mental illness or which are motivated by criminal intent.

40.                   The concept of religious belief or activity is not intended to solely protect the beliefs or activities of a religion as whole, such as Christianity or Islam, but rather, is intended to also protect the beliefs or activities of different denominations or sects within a particular religion, such as Catholicism or Sunni Islam. As such, the Bill will equally protect beliefs or activities of Judaism as a whole, as well as beliefs or activities which arise out of Orthodox or Progressive Judaism.

41.                   The attribute of religious belief or activity will capture beliefs, such as atheism and agnosticism, which are defined by reference to a lack of religious belief.

42.                   However, this definition will not capture non-religious beliefs which are not fundamentally connected to religion, consistent with Article 18 of the ICCPR. As such, not holding a religious belief is not intended to capture belief systems, such as pacifism and veganism, which are not inherently related to religion.

43.                   As the term is defined to include not holding a religious belief, discrimination on the grounds of ‘religious belief or activity’ would capture instances where a person has been discriminated against because they do not hold a particular religious belief. This reflects the fact that people may experience discrimination both because they have a particular attribute, and because they do not have a particular attribute. For example, discrimination against a person because they are Sikh, and discrimination against a person because they are not Muslim, would both equally count as discrimination on the ground of religious belief or activity.

‘Religious activity’

44.                   The concept of religious activity is expansive and is also not defined for the purposes of this Bill. Religious activities may include participating in religious observances (such as prayers, fasting, ceremonies or other holidays), wearing religious dress (such as a hijab, kippah or kirpan) or not engaging in certain conduct in accordance with religious belief (such as not eating meat or drinking alcohol).

45.                   The expression of a religious belief may also constitute engaging in a religious activity. For example, evangelising may constitute a religious activity where adherents of that religious group are required, or encouraged, to evangelise.

Subclause 5(2)

46.                   Subclause 5(2) provides that the definition of religious belief or activity does not include religious activities that are unlawful. This is a similar approach to the Anti‑Discrimination Act 1991 (Qld) and the Equal Opportunity Act 2010 (Vic). This ensures that the Bill would not protect religious activities which are not consistent with Commonwealth, state or territory law, such as religious activities which may constitute criminal conduct. This includes for example, conduct such as forced or child marriages, female genital mutilation (FGM), or animal sacrifice (where this would breach animal cruelty laws). 

47.                   For the purposes of this definition, it is intended that the lawfulness of a particular religious activity would be determined by reference to whether that activity is prohibited by Commonwealth, state or territory law in the jurisdiction and at the time at which the activity is engaged in.

48.                   The lawfulness of a particular religious activity is to be determined at the time at which the activity is engaged in. A person who has engaged in a particular religious activity in the past, which has subsequently become unlawful, would still be entitled to make a complaint of discrimination under this Bill if they had been discriminated against on the basis that they engaged in that activity when it was still lawful.

49.                   In addition, lawfulness is to be determined by reference to the lawfulness of that activity in the relevant jurisdiction. For example, if participation in a particular religious activity is unlawful in one state jurisdiction, but is lawful in a second state jurisdiction, a person engaging in that activity in that second jurisdiction would still be engaging in a religious activity for the purposes of this Bill.

50.                   Further, a religious activity is not intended to be considered ‘unlawful’ simply because of a conflict with the terms of a contract that the individual is a party to. In such a circumstance, the court would need to take into consideration all relevant circumstances surrounding the nature of the contractual dispute in question.

51.                   Religious belief is not similarly limited in this definition as a belief cannot be unlawful until it is expressed. Clause 35 specifies that the expression of religious beliefs which a reasonable person would conclude advocate conduct which would constitute a serious criminal offence are not protected by this Bill.

Subclause 5(3)                                                                                 

52.                   The concept of lawfulness for the purposes of this definition is limited by subclause 5(3). Subclause 5(3) provides that, for the purposes of subclause 5(2), an activity is not unlawful merely because a local by-law prohibits that activity. Local by-law is defined in subclause 5(1) as a law made by a body established for the purposes of local government by or under a law of a State or Territory. This is intended to capture council by-laws and any other forms of laws made by local governments. 

53.                   This would ensure that persons are still protected from discrimination under this Bill even if their religious activity contravenes council by-laws. This may include, for example, religious activities, such as street preaching, which are made unlawful by the operation of local government regulations. This subclause recognises that a person’s ability to make a complaint of discrimination under this Bill should not be limited by the operation of delegated legislation which does not have the same levels of oversight and scrutiny as legislation made by the Commonwealth, or a state and territory government.

54.                   This subclause only protects those activities which are unlawful merely because of a local by-law. An activity which is unlawful by virtue of both a local by-law and a Commonwealth, state and territory law will not constitute a lawful religious activity for the purposes of this Bill.

Illustrative examples of subclauses 5(1) and (2) (meaning of religious belief or activity)

55.                   A religious family has performed FGM on their 12 year old daughter, claiming that the practice accords with their religious and cultural beliefs. It is an offence under state criminal law to perform FGM or to aid or abet another person to engage in the conduct. In accordance with subclause 5(2), the definition of religious belief or activity does not include activity that is unlawful. In this example, the family could not make a claim of religious discrimination under this Bill in relation to action taken by authorities to enforce the law.  

56.                   Jacob and Francis are evangelising in accordance with their religious beliefs. Jacob and Francis visit the home of a neighbour, Clara, who they have spoken with previously. On arrival, Clara asks Jacob and Francis to leave as she is not interested in hearing their messages again. Jacob and Francis persist and refuse to leave until Clara has accepted their materials. Under common law, Clara could initiate a cause of action for trespass against Jacob and Francis as they refused to leave her property once asked. Subclause 5(2) states that religious belief or activity does not include activity that is unlawful. In this example, Jacob and Francis could not make a claim of religious discrimination under this Bill in relation to action taken by Clara to seek damages for their conduct.

57.                   A religious family refuses to send their 10 year old daughter to school (or to otherwise home-school her), claiming that educating girls contravenes their religious beliefs. This refusal breaches state civil law obligations requiring the compulsory education of children. Compliance with civil law obligations are just as important as complying with the criminal law. In this example, the family would not be able to successfully make a claim of religious discrimination under this Bill in relation to any penalty or other action taken by authorities due to their non-compliance with the civil law obligation.

Clause 6          Extended meaning of ground

58.                   Clause 6 extends the meaning of discrimination on the ground of a person’s religious belief or activity.

59.                   This clause provides that discrimination is unlawful under this Bill not only on the basis of a person’s current or actual religious belief or activity, but also on the basis of a person’s past or presumed religious belief or activity. The clause further extends the grounds on which discrimination is unlawful under this Bill to discrimination on the basis of characteristics associated with particular religious beliefs or activities or characteristics which people of that religious belief or activity are generally presumed to have.

60.                   This approach is consistent with existing anti-discrimination legislation and ensures that all conduct that has a discriminatory intent or effect is made unlawful by this Bill, even if such conduct is by reason of a religious belief or activity that the person did not hold or engage in at the relevant time.

61.                   Clause 6 provides that discrimination on the ground of religious belief or activity includes discrimination on the basis of:

(i)                characteristics that people of that religious belief or activity generally have

(ii)              characteristics that people of that religious belief or activity are generally presumed to have

(iii)            a person’s current religious belief or activity

(iv)            a person’s past religious belief or activity

(v)              a person’s presumed religious belief or activity; and

(vi)            a person’s presumed past religious belief or activity.

Subclause 6(a)

62.                   Subclause 6(a) extends the meaning of discrimination on the basis of religious belief or activity to discrimination on the basis of a characteristic that people who hold or engage in the religious belief or activity generally have.

63.                   For example, Ranveer has applied to public hospital for a radiographer position. He is also Sikh. During the job interview, the Panel observes that Ranveer wears a turban. Although Ranveer is the best candidate, the Panel chooses not to offer him the position because they do not feel comfortable with staff wearing religious dress. Subclause 6(a) means that this conduct would constitute discrimination on the ground of religious activity as the Panel has discriminated against Ranveer because he wears a turban and this is a characteristic that Sikh men generally have.

64.                   Mohammad works at a research laboratory. During lunch one day, Mohammad has a discussion with his manager during which Mohammad explains that, in accordance with his Islamic faith, he believes in resurrection and heaven. The manager considers that Mohammad has antiquated views which do not accord with the modern standards and views of the research laboratory. The manager subsequently limits Mohammad's opportunities to speak on behalf of the business. Subclause 6(a) means that this conduct would constitute discrimination on the ground of religious belief as the manager has discriminated against Mohammad because of Mohammad’s belief in certain tenets of Islam.

Subclause 6(b)

65.                   Subclause 6(b) extends the meaning of discrimination on the basis of religious belief or activity to discrimination on the basis of a characteristic that people who hold or engage in the religious belief or activity are generally presumed to have. 

66.                   For example, Isaac has engaged a builder, Thomas, to complete renovations in his home. When Thomas arrives, he observes that Isaac has a long beard. Thomas presumes that Isaac is Muslim based on his appearance and refuses to offer his services. Subclause 6(b) means that this conduct would constitute discrimination on the ground of religious belief or activity as Thomas has discriminated against Isaac because he has a beard and this is a characteristic that Muslim men are generally presumed to have. It is not relevant whether Isaac is Muslim.

67.                   Safiyyah applies for employment at a law firm. On receiving the application, the law firm presumes that Safiyyah is a Muslim based on her name. Based on presumptions about her cultural background and that she may wear a Hijab, the law firm decides that Safiyyah will not be a good fit for the firm. Subclause 6(b) means that this conduct would constitute discrimination on the ground of religious belief or activity as the law firm has discriminated against Safiyyah because of characteristics that Muslim women are generally presumed to have. It is not relevant whether Safiyyah is Muslim.

Subclause 6(c)

68.                   Subclause 6(c) extends the meaning of discrimination on the basis of religious belief or activity to discrimination on the basis of the religious belief or activity that the person currently holds or engages in. This reflects the definition of religious belief or activity in subclause 5(1).

69.                   For example, Joanne is a childcare worker. She is also Jewish. Joanne’s manager, Kelly, learns that Joanne attends a Mikveh each month in accordance with her Jewish faith. Kelly, who considers this practice to be old-fashioned and antiquated, decides to stop Joanne from interacting with the children. Instead, Joanne is assigned to administrative and cleaning tasks. Subclause 6(c) means that this conduct would constitute discrimination on the ground of religious belief or activity as Kelly has discriminated against Joanne because she engages in a religious activity.

Subclause 6(d)

70.                   Subclause 6(d) extends the meaning of discrimination on the basis of religious belief or activity to discrimination on the basis of the religious belief or activity that the person has held or engaged in in the past. For the purposes of this subclause, it is irrelevant whether or not the person still holds or engages in that religious belief or activity. 

71.                   This subclause recognises that people should not face discrimination on the basis of past religious belief or activity, and reflects that all people should be free to change their religious belief or activity free from coercion or adverse consequences. This protects against discrimination on the basis that a person has converted or no longer holds or engages in a particular religious belief or activity.

Subclause 6(e)

72.                   Subclause 6(e) extends the meaning of discrimination on the basis of religious belief or activity to discrimination on the basis of the religious belief or activity that the person is thought to hold or engage in. For the purposes of this subclause, it is irrelevant whether or not the person actually holds or engages in that religious belief or activity. 

73.                   For example, Melanie is completing a trial shift at a café. During the shift, her supervisor, Marcus, observes that Melanie has an Irish accent and wears a crucifix necklace. Based on these observations, Marcus believes that Melanie is Catholic and decides not to offer her the position. Marcus is an atheist and would prefer to employ like-minded staff. Subclause 6(e) means that this conduct would constitute discrimination as Marcus has discriminated against Melanie because of the religious beliefs she is thought to hold. It is not relevant whether Melanie is Catholic.

Subclause 6(f)

74.                   Subclause 6(f) extends the meaning of discrimination on the basis of religious belief or activity to discrimination on the basis of the religious belief or activity that the person is thought to have held or engaged in in the past. For the purposes of this paragraph, it is irrelevant whether or not the person has held or engaged in that religious belief or activity. 

75.                   For example, Naomi is Buddhist. Naomi visits a meditation studio operated by Dharma, who is also Buddhist. Dharma presumes that Naomi only recently converted to Buddhism and was previously not religious. For this reason, Dharma does not allow Naomi to attend her meditation classes as she would rather reserve the positions for lifelong Buddhists. Subclause 6(f) means that this conduct would constitute discrimination as Dharma has discriminated against Naomi because of the non-religious beliefs she is thought to have held in the past. It is not relevant whether Naomi previously held non-religious beliefs. 

PART 2—CONDUCT ETC. THAT IS NOT DISCRIMINATION

76.                   Part 2 of this Bill sets out that certain conduct will not be discrimination on the ground of religious belief or activity.

77.                   The provisions in this part are not framed as exceptions to the prohibition of discrimination under Part 3. Instead, the conduct set out in these provisions is not discrimination under this Bill. Because the conduct is not discrimination, it is not unlawful under the Bill in any area of public life, whether or not it comes within an exception in Division 4 of Part 4.

Clause 7          Religious bodies may act in accordance with their faith etc.

78.                   Clause 7 provides that certain conduct engaged in by religious bodies in accordance with their faith is not covered by the prohibition of discrimination under this Bill.

Operation of the provision:

79.                   Subclause 7(1) operates as a guide to this provision, noting that it sets out the circumstances in which a religious body’s conduct is not discrimination and is therefore not unlawful under this Bill in any area of public life.

80.                   In order to rely upon this provision, a religious body must establish that:

(i)           it is a ‘religious body’ as defined in subclause 5(1);

(ii)         the relevant conduct was engaged in in good faith; and

(iii)       it engaged in conduct:

(i)     that a person of the same religion as the religious body could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of that religion; or

(ii)  to avoid injury to the religious susceptibilities of adherents of its religion; and

(iv)       if the religious body is an educational institution, the conduct must be in accordance with a publicly available policy.

Meaning of ‘religious body’

81.                   Subclause 5(1) sets out the meaning of religious body. A religious body is any of the following that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion:

(i)           an educational institution;

(ii)         a registered charity;

(iii)       any other kind of body (other than a body that engages solely or primarily in commercial activities).

‘Educational institution’

82.                   The term ‘educational institution’ is defined in subclause 5(1) to include schools, colleges and universities or any other institution at which education or training is provided. Other bodies which provide education as part of their functions or services, such as preschools or early learning centres, will also constitute educational institutions for the purposes of this Bill. This definition is consistent with the definition of ‘education institution’ in the Sex Discrimination Act.

83.                   As such, this provision will capture the same type of religious educational institutions as are currently captured by section 38 of the Sex Discrimination Act. Accordingly, a religious educational institution that may fall within an exception to discrimination under that Act would not engage in discrimination on the basis of religious belief or activity under this Bill, provided the other elements of clause 7 are satisfied. In line with subclause 7(6), a religious educational institution must have a publicly available policy in relation to the relevant conduct in the context of employment.

‘Registered charity’

84.                   Subclause 5(1) defines a registered charity as an entity registered under the Australian Charities and Not-for-profits Commission Act 2012 as a charity.

85.                   This definition would capture all registered charities which are conducted in accordance with a particular religion, regardless of their charitable purpose. Accordingly, it is not necessary for a charity to have the charitable purpose of advancing religion in order to fall within the definition of a religious body. Religious charities with other charitable purposes, such as advancing health or advancing social or public welfare, as well as public benevolent institutions, could be captured by this provision.

‘Any other kind of body’

86.                   Subclause 5(1) provides that the definition of religious body includes ‘any other kind of body’ other than a body that engages ‘solely or primarily in commercial activities.’ This provision provides protection for bodies that are conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion, but are not a registered charity, and would include, for example, a religious
not-for-profit body. However, as specified in subclause 5(1), a body that engages solely or primarily in commercial activities would not be within the definition of religious body.

‘Commercial activities’

87.                   Subclause 5(1) provides that a body is not a religious body for the purposes of this Bill if it engages solely or primarily in commercial activities. This recognises that where bodies engage solely or primarily in commercial activities, and are operating within the secular marketplace, they should be subject to the prohibition of discrimination in this Bill, regardless of their religious affiliation.

88.                   Commercial activities may include activities such as providing goods, services or facilities to the public, or sectors of the public, on a for-profit basis. For example, a halal butcher or a Christian‑run bakery would not constitute religious bodies for the purpose of this clause as they are primarily engaged in selling goods to the public for profit.

89.                   A body would only be excluded from the definition of religious body where it solely or primarily engages in commercial activities. The mere fact that a body undertakes some level of ancillary or incidental commercial activity, for example, selling goods to raise funds or renting out certain facilities, would not exclude it from this definition unless those activities were the sole or primary activity of that body.

90.                   Although commercial religious entities are not entitled to rely upon this provision, such entities may rely upon other exceptions in this Bill in order to maintain their religious ethos. For example, a religiously-affiliated business could discriminate in employment on the ground of religious belief or activity in relation to senior leadership positions if it was an inherent requirement of those positions that the employee be of the same religion as the business. For example, a halal or kosher butcher could discriminate in employment on the ground of religious belief or activity if holding such religious beliefs is an inherent requirement of the position.

Conduct that is not discrimination by a religious body

91.                   Subclauses 7(2) and (4) provide that a religious body does not discriminate against another person under this Bill by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion or to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body.

92.                   Subclauses 7(3) and (5) confirm that conduct under subclauses 7(2) and (4) can include giving preference to persons of the same religion as the religious body.

93.                   These subclauses apply to conduct in all of the areas of public life protected in Part 4, Divisions 2 and 3. The broad areas of public life protected by this Bill includes employment, partnerships, qualifying bodies, registered organisations, employment agencies, education, accommodation and the provision of goods, services and facilities. The broad application of this provision to areas of public life recognises the importance of the right to freedom of religion, including the freedom to manifest one’s religion through worship, observance, practice and/or teaching in community with others.

94.                   The notes under subclauses 7(2) and (4) provide that conduct that is not discrimination under this Bill may still constitute direct or indirect discrimination under other anti-discrimination laws. The provisions do not affect the operation of other Commonwealth anti-discrimination law.

‘…in good faith’

95.                   In order for conduct to be protected by clause 7, the conduct must have been engaged in by the religious body ‘in good faith’ and must be conduct that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion or engaged in to avoid injury to the religious susceptibilities of adherents of that religion.

96.                   For the purposes of this Bill, it is intended that ‘good faith’ takes its ordinary legal meaning. That is, good faith for the purposes of this Bill is not intended to reflect a religious concept of faith.

Reasonableness test

97.                   Subclause 7(2) also imports an objective reasonableness test. This would ensure that courts are not required to determine whether particular conduct is in accordance with the doctrines, tenets, beliefs or teachings of a particular religion, but rather whether members of that same religion would reasonably consider that to be so. This would avoid the need for courts to make decisions on matters of religious doctrine.

98.                   A court may still have regard to any foundational documents that a religious body considers supports the conduct under consideration, where those documents are used to demonstrate that particular religion’s doctrines, tenets, beliefs or teachings.  

99.                   A person of the same religion for the purposes of this test is intended to be a person of the same religion, or relevant religious denomination, as the religious body. For example, the relevant reasonable person in relation to conduct engaged in by a Methodist church would be a Methodist person, rather than a Catholic person. This extends to recognised schools of teaching within a denomination, for example the Anglican Sydney Diocese has a different theological stand on a range of issues to the Adelaide Diocese, or within the Uniting Church of Australia, the Generate Presbytery network of congregations holds to different theological understandings on a range of issues.

Publicly available policy

100.               Paragraph 7(6)(a) provides that conduct engaged in by an educational institution under subclauses 7(2) and (4) must be in accordance with a publicly available policy. This policy must also comply with any requirements set by the Minister under subclause 7(7). Religious educational institutions are only required to have a publicly available policy if they wish to access the exceptions in subclauses 7(6). 

101.               A policy must be available to prospective and existing employees or partners. It may be issued publicly through a variety of means, such as being provided online at the point of application or by a copy being provided upon request or as part of the recruitment package. The publicly available policy requirements do not affect the employment arrangements for existing staff, but are intended to provide information for current and prospective employees on the position of the school in relation to the use of these exceptions.

Purpose and rationale for clause 7

102.               It is intended that this clause would apply to conduct that has an intrinsically religious character or is fundamental to the practice of religion, as well as other conduct engaged in by a religious body in good faith in accordance with the doctrines, tenets, beliefs or teachings of that religion.

103.               For example, a religious body would not discriminate by engaging in conduct in relation to the ordination, appointment or training of priests, ministers of religion or members of any religion, or the selection or appointment of persons to perform duties or functions for, or to participate in, any religious observance or practice. This could include, for example, a religious order requiring prospective members be of that religion, or for a church to require that anyone taking communion be Christian. 

104.               In addition, it would not be discrimination for a place of worship to refuse to hire out its facilities for a religious observance of another religion, or to require that only people of the religious belief or activity of that place of worship are able to enter the premises, where this conforms to the doctrines, tenets or beliefs of that religion and is done in good faith. 

105.               This provision would also ensure that religious bodies are able to maintain their religious ethos through staff, admission and other decisions, such as providing goods, services or facilities. This includes both requirements that all staff or students, for example, be adherents of the same religion as the religious body, as well as decisions to prefer or give priority to staff or students who are of the same religion as the religious body. This is consistent with the findings of the Religious Freedom Review that the development of a Religious Discrimination Act “would require careful consideration of appropriate exceptions, for example, such exceptions for religious bodies as may be required in order to safeguard other aspects of the human right to freedom of religion or belief.”[1]

Illustrative examples of clause 7

106.               Clara owns and operates a bakery called ‘Clara’s Cakes.’ Clara is also Christian and regularly allows her Church to host religious meetings on her premises. Clara operates her bakery as a not-for-profit entity, with all profits invested in social welfare activities consistent with her Christian values, but it is not a registered charity. ‘Clara’s Cakes’ is not a ‘religious body’ for the purposes of subclause 5(1). This is because the business is engaged primarily in commercial activities (eg producing and selling baked goods). Clara would not be able to discriminate on the basis of religious belief or activity in relation to who she sells her cakes to, or in the employment of staff.

107.               Kate owns and operates a service called ‘Meditation for Children.’ The service supports children who are struggling at school by encouraging meditation. Kate is a Buddhist and operates the service as a not-for-profit entity, with all activities focused on social welfare consistent with her Buddhist beliefs. The entity is not a registered charity or educational institution. All staff are volunteers and the service is free. ‘Meditation for Children’ would be a ‘religious body’ for the purposes of subclause 5(1). This is because the business is conducted in accordance with the doctrines, tenets, beliefs or teachings of Buddhism and it also does not engage in any commercial activities. Therefore, Kate would be able to discriminate on the basis of religious belief or activity in relation to who she offers her services to, or when selecting staff.

108.               A Jewish school publishes a job advertisement seeking a new religious education teacher. The advertisement states that one of the role requirements is that the successful candidate must be Jewish. The school considers that it is important for the school community that all teachers conform to the beliefs of Judaism, particularly for religious education. This requirement is set out in a publicly available policy, which is available on the school’s website and attached to the job advertisement. A Christian woman applies for the role and is declined an interview on the basis that she does not meet the role requirements. Subclauses 7(2) and (4) mean that this conduct would not be unlawful if the actions of the school conform to the doctrines, tenets, beliefs or teachings of Judaism, or was done to avoid injury to the religious susceptibilities of Jewish people.

109.               Ali is a mathematics teacher at an Islamic school. Ali was previously Muslim, but has recently converted to Hinduism. The school considers it to be important for the school community that all teachers conform to the beliefs of Islam and do not conform to other religious beliefs. This view is set out in a publicly available policy, which is available on the school’s website and was provided to Ali when he was employed by the school. In light of this, the school terminates Ali’s employment on the basis of his religious beliefs and activities. Subclauses 7(2) and (4) means that the school’s conduct would not be unlawful if the actions conform to the doctrines, tenets, beliefs or teaching of Islam, or was done to avoid injury to the religious susceptibilities of Muslim people.    

Clause 8          Certain conduct by religious hospitals, aged care facilities, accommodation providers and disability service providers that is not covered by clause 7

110.               Clause 8 provides that subclauses 7(2) and (4) do not apply to conduct of a religious body if the conduct is in the course of:

(i)           establishing, directing, controlling or administering a hospital or aged care facility; or

(ii)         if the religious body solely or primarily provides accommodation – the provision of accommodation; or

(iii)       establishing, directing, controlling or administering a camp or conference site that provides accommodation; or

(iv)       if the religious body solely or primarily provides services to people with disability – the provision of the services.

111.               This reflects the public benefit and important role of hospitals, aged care and disability facilities in the community. Given these institutions generally provide services to the public at large and most often they do so on a commercial basis, it is not appropriate for their conduct in all areas of public life to not be covered by the Bill. For example, it would not be appropriate for a religious hospital to discriminate against a potential or existing patient on the basis of the patient’s religious belief or activity.

112.               Instead, the Bill includes specific, more limited, exceptions to the prohibition of discrimination in employment and partnerships for religious hospitals, aged care facilities and accommodation providers in clause 9.

Illustrative example of clause 8

113.               A medical centre is established, directed, controlled and administered by an Anglican Church group. The medical centre is operated in accordance with the doctrines, tenets, beliefs and teachings of the Anglican faith. Under clause 8, the medical centre would not be able to engage in conduct under subclauses 7(2) or (4), however it could engage in conduct permitted under clause 9.  

Clause 9          Areas of public life in which the conduct of religious hospitals, aged care facilities, accommodation providers and disability service providers is not discrimination.       

114.               Clause 9 outlines the areas of public life in which the conduct of religious hospitals, aged care facilities and accommodation and disability service providers does not constitute discrimination under this Bill.

115.               Clause 9 provides an exception for the body that undertakes conduct that comprises the provision of aged care, hospital, accommodation and disability provider services. This ensures that entities providing multiple types of services can access the exception  that is available for the particular kind of conduct. For example, entities which satisfy the definition of religious body can access the exception in clause 7, but in relation to conduct described by clause 8, these same entities can only access the exceptions in clause 9.

Operation and coverage of clause 9

116.               Subclause 9(1) operates as a guide to the provision, namely it sets out the specific areas of public life in which the conduct of religious hospitals, religious aged care facilities, religious accommodation providers and disability service providers would not constitute discrimination and is therefore not unlawful under this Bill.

117.               Paragraph 9(2)(a) provides that this clause applies to bodies that establish, direct, control or administer a hospital in accordance with the doctrines, tenets, beliefs or teachings of a particular belief. This is referred to as a religious hospital.

118.               Paragraph 9(2)(b) provides that this clause applies to bodies that establish, directs, controls, or administers an aged care facility in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. This is referred to as a religious aged care facility.

119.               Paragraph 9(2)(c) provides that this clause applies to bodies that solely or primarily provide accommodation and/or establishes, directs, controls or administers a conference site that provides accommodation in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. This is referred to as a religious accommodation provider.

120.               Paragraph 9(2)(d) provides that this clause applies to bodies that solely or primarily provide services to people with disability in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. This is referred to as a religious disability service provider.

‘Conduct by religious hospitals, aged care facilities, accommodation providers and disability service providers in the context of employment and partnerships is not discrimination’

121.               Subclause 9(3) provides that a religious hospital, religious aged care facility, religious accommodation provider or religious disability service provider does not discriminate under this Bill by engaging in certain conduct.

122.               This provision recognises that ensuring these bodies are able to maintain their religious ethos through decisions about staff composition is fundamental to maintaining the religious nature of these bodies. It also provides a limited protection for these bodies to maintain their ethos in this manner by providing that it is not discrimination to make faith-based decisions in employment and partnerships in the course of administering religious hospitals and aged care facilities or providing accommodation. 

123.               This provision solely applies to discrimination in employment and partnerships. It does not apply to conduct in any other area of public life protected by this Bill. As such, this provision does not allow persons to discriminate in the provision of goods, services and facilities in the course of administering religious hospitals or aged care facilities, or providing accommodation or disability services. For example, this provision does not render it lawful for a religious hospital to discriminate against a patient on the basis of the patient’s religious belief or activity, or for a religious aged care facility to discriminate against a resident on the basis of the resident’s religious belief or activity.

124.               In order to rely upon this exception, a person must establish that:

a.       it is a religious body of the kind described in subclause 9(2);

 

b.      the conduct relates to employment or partnerships as described in clauses 19 and 20 of the Bill;

 

c.       the conduct is engaged in by the body in good faith (paragraphs 9(3)(b) and 9(5)(b));

 

d.      a person of the same religion as the body could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of that religion (paragraph 9(3)(c)) or the body engages in the conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the body (paragraph 9(5)(c)); and

 

e.       the conduct is in accordance with a publicly available policy that complies with any requirements determined under subclause 9(7).

125.               For the purposes of paragraphs 9(3)(c) and 9(5)(c), courts are not required to determine whether particular conduct is in accordance with the doctrines, tenets, beliefs or teachings of a particular religion, but rather whether members of that same religion would reasonably consider that to be so. In doing so, the courts may still have regard to foundational documents that a religious body considers supports the conduct under consideration, where those documents are used to demonstrate that particular religion’s doctrines, tenets, beliefs or teachings.

Publicly available policy requirement

126.               Paragraphs 9(3)(d) and 9(5)(d) provide that the conduct must be in accordance with a publicly available policy issued by the religious body.

127.               This provision would ensure that clause 9 only permits conduct in circumstances where a religious body has a publicly articulated policy. The religious body would only be required to have a publicly available policy in order to rely on the exceptions in clause 9. This is intended to provide an additional safeguard for the general community noting the broader impact these exceptions could have on people who are employed by, or seeking to be employed by, these bodies. For example, a body may have a policy that some positions will only be filled by adherents of a certain faith. This would increase certainty and transparency and ensure that the general public is able to ascertain and understand the position of that hospital, aged care facility, accommodation provider or disability service provider with respect to discrimination on the basis of religious belief or activity prior to seeking employment or to become a partner with that institution.

128.               A policy must be available to prospective and existing employees or partners. It may be issued publicly through a variety of means, such as being provided online at the point of application or by a copy being provided upon request or as part of the job advertisement. The publicly available policy requirements are intended to provide information for current and prospective employees on the position of the school in relation to the use of these exceptions.  

Requirements relating to publicly available policies

129.               Subclause 9(7) gives the Minister the power to determine requirements for the purposes of paragraphs (3)(e) or (5)(e) through legislative instrument. This subclause would ensure that the Minister could provide further clarity for religious bodies around the nature and scope of this requirement if needed. While guidance could be developed to address any specific issues or questions raised by stakeholders, it is anticipated that guidance would be based on the kinds of matters set out in the Religious Freedom Review Report of the Expert Panel on this subject. The Expert Panel suggested that a publicly available policy should outline the precepts of the religion that relate to preferencing employees, outline the school’s own position on this issue, explain how the school’s policy will be enforced, and that this policy should be publicly available, so that prospective employees can make choices about making an application. Beyond providing general guidance on the kinds of matters that a policy could address, guidance would be limited to the form, presentation and availability of policies.

Illustrative example of clause 9

130.               A Jewish hospital has a publicly available policy stating that all members of the hospital’s governing committee are required to be Jewish. The governing committee is made up of senior medical practitioners employed at the hospital, who receive a salary increase as a result of participation on the committee. In accordance with subclauses 9(3) and (5), it would not be unlawful for that hospital to refuse to appoint someone to the committee if they were not Jewish, provided this was done in good faith and in accordance with the doctrines, tenets, beliefs and teachings of Judaism or to avoid injury to the religious susceptibilities of Jewish people. However, if the same hospital refused to employ a non-Jewish person in a junior administrative role, in a manner not covered by the policy, this conduct may constitute discrimination under subclause 19(2) of the Bill.

Clause 10        Reasonable conduct intended to meet a need or reduce a disadvantage

131.               Clause 10 provides that certain beneficial measures to meet a need or to reduce a disadvantage arising out a person’s or group’s religious belief or activity are not discrimination under this Bill.

132.               Subclause 10(1) clarifies that a person does not discriminate against another person under this Bill by engaging in conduct that is reasonable in the circumstances, is consistent with the purposes of this Bill, and is either:

a.    intended to meet a need arising out of a religious belief or activity of a person or group of persons; or

b.   intended to reduce a disadvantage experienced by a person or group of persons on the basis of the person or group’s religious beliefs or activities.

133.               This provision recognises the concept of legitimate differential treatment. It is informed by the exemption for positive discrimination in section 33 of the Age Discrimination Act. Similar provisions also exist in other Commonwealth anti‑discrimination legislation (for example, section 45 of the Disability Discrimination Act and section 7D of the Sex Discrimination Act).

134.               Subparagraph 10(1)(c)(i) allows for certain beneficial conduct which is intended to meet a need arising out of a person or group’s religious belief or activity. This can include the provision of certain benefits, such as targeted programs or support. For example, humanitarian programs which provide assistance to support religious groups who have faced persecution on the basis of their religious belief may fall within this subparagraph. In addition, measures which are intended to address barriers to participation in public life, such as an employer providing flexible scheduling or providing a dedicated prayer room on work premises, may fall within this subparagraph.

135.               In order to fall within the scope of this subparagraph, the relevant conduct must be reasonable in the circumstances and be intended to meet a need arising out of the religious belief or activity of the person or group. Whether certain conduct is reasonable requires consideration of whether it is necessary to meet the identified need. These requirements act as safeguards to ensure that this provision is not abused to justify otherwise discriminatory conduct where it is not reasonable, or where there is no relevant need.

136.               In addition, the conduct must be consistent with the purposes of the Bill. This includes, but is not limited to, the objects of the Bill outlined in clause 3. This is intended to capture the broader beneficial purposes for which the Bill is established and the aims it is intended to meet.

137.               Measures under this subparagraph may continue so far as the need of that person or group continues to exist. As such, conduct may be engaged in to meet an ongoing need and continue on a permanent basis.

138.               Subparagraph 10(1)(c)(ii) allows for certain beneficial conduct which is intended to reduce a disadvantage experienced by a person or group on the basis of their religious belief or activity. This is intended to capture policies or programs which are necessary to help a disadvantaged group achieve equality with other religious groups or with the broader community.

139.               Measures under this subparagraph could include conduct engaged in to reduce disadvantage or to alleviate unequal access to opportunities for a particular religious group who may be underrepresented in certain professions.

140.               The requirements that conduct under this subparagraph be reasonable, which includes consideration of whether it is necessary to alleviate a disadvantage or inequality, consistent with the purpose of the Bill, and intended to reduce a disadvantage, are a safeguard to ensure this provision is not abused to justify discrimination or measures that are intended to disadvantage the particular religious individual or group subject to the measures.

141.               Measures under this subparagraph are intended to cease to fall within the scope of this subparagraph once the disadvantage has been overcome and equality has been achieved. However, where equality can only be achieved through the maintenance of such measures, these are likely to be valid indefinitely.

142.               The note under subclause 10(1) provides an example of conduct falling within the scope of this clause:

For example, a residential aged care facility, retirement village or hospital does not discriminate under this Act by providing services to meet the needs (including dietary, cultural and religious needs) of a minority religious group, such as a Jewish or Greek Orthodox residential care home or hospital or retirement village that providers services specifically for the Jewish or Greek Orthodox community.

143.               It is not intended that conduct falling within subclause 10(1) would disproportionately disadvantage people of different religious beliefs or activities to that of the targeted group, or constitute an impermissible limitation on the rights and freedoms of others. In accordance with paragraph 10(1)(a) and (b), as part of determining whether conduct is reasonable in the circumstances, it should be considered whether that conduct was engaged in with regard to the indivisibility and universality of human rights, their equal status in international law, and the principle that every person is free and equal in dignity and rights, in accordance with the objects of the Bill in subclause 3(2).

144.               Subclause 10(2) provides that this clause applies despite anything else in this Bill.

Illustrative examples of clause 10

145.               A rehabilitation facility provides free services for Jewish people to meet their need for healthcare that aligns with their dietary, cultural and other religious needs. Clause 10 means that this would not be discrimination as it is consistent with the purposes of the Bill as it is intended to reduce disadvantage for a particular religious group.

Clause 11        Conduct in relation to employment by religious educational institutions—overriding certain State and Territory laws

146.               Clause 11 provides that educational institutions are able to preference people in employment who hold or engage in a particular religious belief or activity. The preference may be given to people of any, or no, religion, as long as the preference is given in good faith and in accordance with a publicly available policy, regardless of relevant State or Territory provisions prescribed for the purposes of clause 11.

147.               This provision recognises that religious educational institutions may preference in employment an individual who holds or engages in beliefs or activities that are consistent with the school’s religious approach. This operates irrespective of whether the relevant person is of the same religion as the educational institution, or has no religion.

148.               Paragraph 11(1)(b) provides that a religious educational institution may only preference people in employment when such conduct is in accordance with a written policy that meets the following requirements:

(i)           outlines the religious body’s position in relation to particular religious beliefs or activities;

(ii)         explains how the position in subparagraph (i) is or will be enforced by the religious body; and

(iii)       is publicly available, including at the time employment opportunities with the religious body become available.

149.               Paragraph 11(1)(b) is intended to provide an additional safeguard for the general community noting the broader impact this provision could have on people who are employed by, or seeking to be employed by, these bodies. The requirement to have a written, publicly available policy would increase certainty and transparency and ensure that the general public is able to ascertain and understand the position of a religious body in relation to preferencing in employment prior to seeking employment or otherwise engaging with the religious body.

150.               A state or territory law prescribed by subclause 11(3) is overridden by clause 11. Subclause 11(3) gives the Minister the ability to make a legislative instrument that would prescribe a state or territory law for the purposes of clause 11. Such a legislative instrument may only be made where the Minister is satisfied that the law both: prohibits discrimination on the ground of religious belief; and interferes with an educational institution’s ability to preference people in employment decisions, in line with clause 11. Clause 11 has no effect unless a law is prescribed.  

Clause 12        Statements of belief

151.               Clause 12 provides that a statement of belief in and of itself that is made in good faith and is not malicious is not discrimination for the purposes of certain provisions of Commonwealth, state and territory anti‑discrimination law, including this Bill. It is a mere statement of belief.

152.               Subclause 12(1) provides that a statement of belief in and of itself does not contravene certain provisions of Commonwealth, state and territory
anti-discrimination law. As such, this clause will not operate to exempt discriminatory conduct, or a series of conduct, merely because it has been accompanied by a statement of belief. Although the statement of belief is not, in and of itself, discriminatory, this clause will not affect the determination of whether associated conduct constitutes discrimination.

153.               The intent of the clause is to ensure that genuine and sincerely held religious views and non-religious views may be freely expressed without legal repercussion in relation to the statement in and of itself, provided they are expressed in good faith and are not malicious.

154.               Relevantly a statement of belief is defined in subclause 5(1) and is intended to provide similar levels of protection to statements of belief made by people with or without religious belief.

155.               The definition in subclause 5(1) is intended to ensure that those who do not hold a religious belief are able to make statements of belief in the same way as those who do hold a religious belief. 

156.               This clause provides a defence to a complaint of discrimination made in relation to the statement in and of itself under anti‑discrimination law. It is not intended to impact the meaning or interpretation of other anti-discrimination law, or the tests of direct or indirect discrimination.

157.               This clause is intended to protect the rights to freedom of expression and freedom of religion by ensuring that a person may express their religious belief in good faith and the mere statement in and of itself is not discrimination.

158.               This is because a key aspect of protecting the right to freedom of religion is protecting the ability of individuals to explain, discuss and share their fundamental beliefs.

159.               Protecting the freedom to express both religious and non-religious beliefs civilly is an essential part of maintaining a functioning democracy.

‘Statements of belief’

160.               This clause solely relates to the making of ‘statements of belief’. It does not protect the expression of all beliefs generally or conduct. In other words, if a person takes action in relation to their statement of belief, this may be discrimination for the purposes of the relevant Commonwealth, state and territory anti-discrimination law.

161.               ‘Statement of belief’ is defined in subclause 5(1) and is intended to provide similar levels of protection to statements of belief made by people with or without a religious belief.

162.               The definition in subclause 5(1) is intended to ensure that those who do not hold a religious belief are able to make statements of belief in the same way as those who do hold a religious belief.

163.               Both definitions of statement of belief require that statements are made in good faith. For the avoidance of doubt, for the purposes of this Bill, it is intended that ‘good faith’ takes its ordinary legal meaning. For this reason, statements which are not made conscientiously or which are made for an improper purpose would not constitute a statement of belief.

164.               In addition, these definitions are limited to statements which are made by written or spoken words or other communication, other than physical contact. It is not intended that this would capture broader expressions of a person’s religious belief. As such, this clause solely exempts oral and written expressions of belief and other forms of communication, such as making physical gestures that have a religious meaning (like crossing oneself in the Christian faith). It does not capture any form of behaviour that goes beyond the making of a statement, such as employment decisions or decisions not to provide goods, services, or facilities. 

Paragraph (a) - statement of religious belief

165.               Paragraph (a) of the definition provides that a statement constitutes a statement of belief if it is made in good faith by written or spoken words or other communication (other than physical contact), is of a religious belief which is held by the person making the statement, and that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of the religion.

166.               This definition is limited to beliefs which are genuinely held by the person making the statement. For example, a person who purports to make a statement of belief based on a religion they do not follow, and have never followed, would not be protected by this clause. The definition would also not cover statements of belief that are not linked to any religion, or which were linked to a religion that has been invented for the purpose of making the statement.

167.               This definition would also capture intra-faith criticism. 

168.               Paragraph (a) refers to ‘religious belief’ only, which is intended to be a narrower concept to the attribute of religious belief or activity. Not holding a religious belief is dealt with in paragraph (b).

169.               It would not be sufficient for a person to merely assert that a statement is religious in nature, or is a belief they hold in circumstances where they do not hold a religious belief. The distinction between these two concepts is significant, and each term has its own meaning and effect to convey that significance.

Paragraph (b) – statement of belief by a person who does not hold a religious belief

170.               Paragraph (b) of the definition of statement of belief provides that a statement constitutes a statement of belief if it is made in good faith by written or spoken words or other communication (other than physical contact) by a person who does not hold a religious belief and is of a belief that the person genuinely considers to relate to the fact of not holding a religious belief.

171.               This paragraph ensures the provision protects the expression of atheist and agnostic beliefs. For example, a statement made in good faith by an atheist explaining that they believe prayer to be useless, or a statement made in good faith by an agnostic that the existence of a god can never be known, may constitute a statement of belief.

172.               This definition solely captures beliefs that the person genuinely considers to relate to the fact of not holding a religious belief. This may include beliefs which dispute the existence of religion, or which criticise religion or aspects of religion, and which the person holds because they do not hold a religious belief. It is not intended that this definition would capture philosophical beliefs which do not relate to a lack of religious belief. For example, a statement made by a vegan that criticises halal slaughter as constituting animal cruelty would not constitute a statement of belief as the belief does not relate to the fact of that person not holding a religious belief.

Operation of clause 12

173.               Subclause 12(1) provides that a statement of belief, in and of itself, does not contravene certain provisions of Commonwealth, state and territory anti‑discrimination law. As such, this clause will not operate to exempt discriminatory conduct, or a series of conduct, merely because it has been accompanied by a statement of belief. Although the statement of belief is not, in and of itself, discriminatory, this clause will not affect the determination of whether associated conduct constitutes discrimination.

174.               In addition, it is not intended that this clause would affect the ability of a complainant to bring statements of belief forward as evidence in support of a discrimination complaint concerning separate conduct. For example, a statement of belief, whilst not constituting discrimination in and of itself, may provide evidence that the reason for the less favourable treatment (that is, the conduct the subject of the complaint) was the other person’s attribute, thus proving an element of the test of direct discrimination. 

175.               The intent of the clause is to ensure that genuine and sincerely held religious views may be freely expressed without legal repercussion, provided they are expressed in good faith and are not malicious.

176.               Paragraph 12(1)(a) provides that a statement of belief, in and of itself, does not constitute discrimination for the purposes of the following:

a.       this Bill;

b.      the Age Discrimination Act;

c.       the Disability Discrimination Act;

d.      the Racial Discrimination Act;

e.       The Sex Discrimination Act;

f.        the Anti-Discrimination Act 1977 (NSW);

g.      the Equal Opportunity Act 2010 (Vic.);

h.      the Anti-Discrimination Act 1991 (Qld);

i.        the Equal Opportunity Act 1984 (WA);

j.        the Equal Opportunity Act 1984 (SA);

k.      the Tasmanian Anti-Discrimination Act

l.        the Discrimination Act 1991 (ACT); and

m.    the Anti-Discrimination Act (NT).

177.               Accordingly, a statement of belief will not constitute discrimination for the purposes of this Bill and existing Commonwealth, state and territory anti-discrimination law.

178.               This clause applies solely to an action for discrimination under those Acts. This includes both direct and indirect discrimination. It does not apply to harassment, vilification or incitement provisions under these laws. For example, this provision does not affect the prohibition of offensive behaviour based on racial hatred in
Part IIA of the Racial Discrimination Act or sexual harassment or sex-based harassment under the Sex Discrimination Act.

179.               The clause would not affect the operation of any other legislation at a Commonwealth, state or territory level, other than those listed in, or prescribed for the purposes of, subclause 12(1). For example, this provision will not protect statements of belief which contravene defamation or criminal law.

180.               In addition, a statement of belief will not constitute adverse action under the
Fair Work Act. This is because paragraph 351(2)(a) of that Act provides that subsection 351(1) does not apply to conduct that is not unlawful under any anti‑discrimination law listed in subsection 351(3) in force in the place where the action is taken.

181.               Subclause 12(1)(b) provides that a statement of belief does not contravene subsection 17(1) of the Tasmanian Anti-Discrimination Act. Subsection 17(1) prohibits conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of a gender, race, age, sexual orientation, lawful sexual activity, gender identity, intersex variations of sex characteristics, disability, marital status, relationship status, breastfeeding, parental status or family responsibilities.

182.               This subsection is specifically included for the purposes of this provision given its broad scope and demonstrated ability to affect freedom of religious expression. Tasmania is the only state or territory jurisdiction with a provision of this nature.

183.               In addition, paragraph 12(1)(c) provides that a statement of belief does not contravene a provision of a law prescribed by the regulations. This regulation making power provides flexibility and acts as a safeguard in the event that other Commonwealth, state or territory laws are considered to unreasonably limit freedom of religious expression. Regulations made under clause 77 are legislative instruments and are subject to disallowance. This will ensure appropriate parliamentary scrutiny of any additional provisions prescribed for the purposes of this clause, including by the Parliamentary Joint Committee on Human Rights.

Limitations on the operation of clause 12

184.               Subclause 12(2) provides that subclause 12(1) does not apply to certain statements which are malicious or that a reasonable person would consider would threaten, intimidate, harass or vilify a person or group or which would advocate for the commission of a serious criminal offence (clause 35). This subclause provides a safeguard to ensure that harmful religious expression is not protected by this provision. This is in addition to the good faith requirements contained within the definition of statement of belief in subclause 5(1).

185.               Subclause 12(2)(a) provides that subclause 12(1) does not apply to statements that are malicious. Subclause 12(2)(b) provides that subclause 12(1) does not apply to a statement that a reasonable person would consider would threaten, intimidate, harass or vilify a person or group. This recognises that the law should not protect and sanction harmful religious expression, such as expression which constitutes harassment or vilification, or is threatening or intimidating. The terms ‘harass’, ‘threaten’ and ‘intimidate’ are not defined in the Bill and are intended to be interpreted in accordance with their ordinary meaning.

186.               Speech that is offensive or insulting towards a person or group of persons, but does not incite hatred, violence or contempt, is not vilification. Similarly, speech that is offensive or insulting, or that others may disagree with, but which does not harass, threaten or intimidate others, would not be excluded under paragraph 12(2)(b).

187.               Speech that could constitute as ‘threatening’ could include statements indicating that that the speaker intends to inflict physical harm on, or instil fear of physical harm in, another person, or is encouraging others to do the same.

188.               Subclause 5(1) defines ‘vilify’ to mean incite hatred or violence towards a person or group of persons. This definition is consistent with some of the core elements of the majority of state, territory and Commonwealth vilification provisions.

189.               Behaviour that could constitute vilification includes:

a.       speaking about a person’s race or religion in a way that could make other people hate or ridicule them

b.      publishing claims that a racial or religious group is involved in serious crimes without any proof

c.       repeated and serious spoken or physical abuse about the race or religion of another person

d.      encouraging violence against people who belong to a particular race or religion, or damaging their property

e.       encouraging people to hate a racial or religious group using flyers, stickers, posters, a speech or publication, or websites, email or social media.

190.               Finally, paragraph 12(2)(c) provides that subclause 12(1) does not apply to a statement that is covered by paragraph 35(1)(b). Paragraph 35(1)(b) relates to the expression of particular religious beliefs that a reasonable person, having regard to all the circumstances, would conclude counsel, promote, encourage or urge conduct that would constitute a serious offence. This paragraph will ensure that this clause does not protect statements of belief which advocate for the commission of serious criminal offences.

191.               In accordance with general principles of anti-discrimination law, the legal and evidential burden of proof for establishing the elements in this clause rests with the respondent, as the party seeking to rely upon this defence. This includes the burden of proving the elements in the definition of statement of belief, as well as the elements in subclause 12(2), being that the statement was not malicious, did not harass etc.

192.               The note under subclause 12(2) provides that a moderately expressed religious view that does not incite hatred or violence would not constitute vilification.

Illustrative examples of clause 12

193.               Andrew is the manager of a business with a culturally diverse workforce. He sends his employeesa Christmas greeting, referring to his beliefs about the birth of Jesus. Employees who are not religious say the message makes them feel alienated and uncomfortable. If Andrew’s statements were made in good faith and were not malicious, he would have a defence against any potential discrimination claim.

194.               Terrance is an atheist. One day, his colleagues are discussing end of year plans and Terrance mentions that he does not celebrate Christmas. When asked about his beliefs, Terrance says that as an atheist, he thinks that prayer and belief in god is ‘illogical’. Terrance does not realise that his colleague, Meaghan, is religious and is offended by Terrance’s comments. In this example, Terrance’s statement is a statement of belief and therefore not discrimination. However, if Terrance were to make repeated comments of this nature directed at Meaghan, knowing that she is religious, it may be possible to demonstrate that these comments are not being made in good faith.

PART 3—CONCEPT OF DISCRIMINATION ON THE GROUND OF RELIGIOUS BELIEF OR ACTIVITY

195.               Part 3 of this Bill sets out the concept of discrimination on the ground of religious belief or activity.

196.               This Part defines discrimination on the ground of religious belief or activity to include direct discrimination (clause 13) and indirect discrimination (clause 14).

197.               Discrimination on the ground of religious belief or activity for the purposes of this Part includes discrimination on the basis of any of the extended grounds as provided by clause 6, or discrimination against people who have an association with an individual who holds or engages in a religious belief or activity, as provided by clause 16.

198.               This Part also clarifies that certain conduct is not covered by the prohibition of discrimination under this Bill. Under Part 2, conduct engaged in by religious bodies in accordance with their faith and reasonable conduct intended to meet a need or reduce a disadvantage arising out of a person or group’s religious belief or activity do not constitute discrimination on the grounds of religious belief or activity under this Bill.

Clause 13        Discrimination on the ground of religious belief or activity­â€”direct discrimination

199.               Clause 13 defines direct discrimination on the ground of religious belief or activity.

200.               Direct discrimination occurs where a person treats another person less favourably than someone in similar circumstances, because of that person’s religious belief or activity.

201.               The test of direct discrimination in this Bill reflects the tests of direct discrimination in the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act.

202.               Clause 13 defines direct discrimination to comprise three elements:

a.       treatment – the first person treated, or proposed to treat, the other person in a particular way (subclause 13(a));

b.      differential treatment – that treatment is less favourable than the treatment of another person who does not hold or engage in the other person’s religious belief or activity in circumstances that are not materially different (also known as the comparator element) (subclause 13(a)); and

c.       causation – the reason for the less favourable treatment is the other person’s religious belief or activity (subclause 13(b)).

203.               Subclause 13(a) specifies that the definition of direct discrimination includes both actual and proposed treatment. This subclause ensures that a person does not actually have to suffer a threatened detriment before being able to bring a complaint for discrimination. For example, the provision would make clear that it is not only unlawful for an employer to dismiss an employee because of their religious belief or activity, but it is also unlawful for an employer to propose to dismiss an employee because of their religious belief or activity.

204.               The differential treatment test in subclause 13(a) requires that the person who discriminates must treat the other person less favourably than a comparator in circumstances which are not materially different.

205.               The causation test in subclause 13(b) requires that the discrimination be by reason of the other person’s religious belief or activity. This requires a causal connection between the religious belief or activity of the other person and any less favourable treatment afforded to them. However, this does not require an intention or motive to discriminate, nor must the first person have regarded the treatment as less favourable.

206.               As provided by clause 17, if an act is done for multiple reasons, the person’s religious belief or activity need not be the dominant or substantial reason for the treatment for the purposes of subclause 13(b).

Illustrative examples of clause 13

207.               Emily works at a supermarket. Emily is a Christian and her church prohibits working on Sundays. Emily informs her manager, Lisa, of her religious beliefs and asks for Sundays off to accommodate her religious activities. Lisa approves the request and Emily is not scheduled for Sunday shifts for a number of months. Later, a new manager, Kevin, starts scheduling Emily for Sunday shifts. Emily explains that her religion prohibits her from working on Sundays, but Kevin refuses to change the roster and advises Emily that she can either work Sundays like her colleagues or find work elsewhere. Emily observes that Kevin often grants other colleagues leave on Sundays for non-religious reasons, such as social commitments. In this example, Emily could make a complaint of direct discrimination as Kevin has refused her request (subclause 13(a)). Kevin is also treating Emily less favourably than her non-religious colleagues as he approved their requests (subclause 13(a)). It also appears that the request could be accommodated given that Lisa had previously done so. This suggests that Kevin may be treating Emily less favourably because she is seeking leave to support her religious activities, rather than other commitments (subclause 13(b)).

208.               Azriel is an Orthodox Jew and is planning to start a small business producing religious items for the Orthodox Jewish community. Azriel meets with Jennifer, a loan consultant for a bank, to apply for a business loan. While Azriel meets the requirements for the loan and provides a comprehensive business plan, Jennifer refuses to approve the application because she considers that Azriel’s religious beliefs may interfere with running his business. In this example, Azriel could make a complaint of direct discrimination as the bank has refused his application (subclause 13(a)) and it appears that this decision was based on Azriel’s religious beliefs (subclause 13(b)).

209.               Anthony is a Catholic priest and wears religious dress, including a clerical collar, at all times. Anthony attempts to enter a restaurant, but is prevented from entering by the owner, Margaret. Margaret is agnostic and does not want people wearing religious dress in her restaurant. In this example, Anthony could make a complaint of direct discrimination as Margaret has refused to allow him to enter (subclause 13(a)) on the basis of his religious beliefs and activities (subclause 13(b)).     

Clause 14        Discrimination on the ground of religious belief or activity­â€”indirect discrimination

210.               Clause 14 defines indirect discrimination on the ground of religious belief or activity.

211.               Indirect discrimination occurs where an apparently neutral condition, requirement or practice has the effect of disadvantaging people who hold or engage in a particular religious belief or activity.

212.               The test of indirect discrimination in this Bill is broadly consistent with the tests of indirect discrimination in the Age Discrimination Act and the Sex Discrimination Act.

213.               Subclause 14(1) provides that it is discrimination to impose, or propose to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who hold or engage in the same religious belief or activity as the aggrieved person.

214.               Paragraph 14(1)(c) provides that the imposition of a condition, requirement or practice only constitutes indirect discrimination where that condition, requirement or practice is not reasonable. If a condition is reasonable in all of the circumstances, the imposition of that condition would not constitute unlawful discrimination. This reflects the need for people to be able to impose reasonable conditions, even where such conditions may disadvantage a group of people on the basis of their religious belief or activity.

215.               Subclause 14(2) provides how reasonableness is to be assessed for the purposes of paragraph 14(1)(c). It specifies that whether a condition, requirement or practice is reasonable for the purposes of paragraph 14(1)(c) depends on all the relevant circumstances of the case.

216.               Subclause 14(2) lists factors which may be taken into account in determining whether a condition, requirement or practice is reasonable. These general factors include:

a.       the nature and extent of the disadvantage;

b.      the feasibility of overcoming or mitigating the disadvantage; and

c.       whether the disadvantage is proportionate to the result being sought.

217.               This list is not exhaustive and courts may take into account any other matters they deem relevant in determining the question of reasonableness.

Illustrative examples of clause 14

218.               Mohammad is a public servant and has recently joined a new team. He is also Muslim and participates in the congregational prayer required of Muslim men each Friday. Mohammad’s new manager, Alex, schedules a routine meeting with Mohammad each Friday afternoon to discuss his work priorities. Mohammad advises Alex that he is not available at this time because he leaves early on Fridays for the congregational prayer. Alex refuses to change the meeting time as it better suits his schedule and preferences. In this example, a complaint of indirect discrimination could be made as Alex is proposing to impose a practice (subclause 14(a)) that would disadvantage people who are Muslim (subclause 14(b)) and the condition may not be reasonable in the circumstances (subclause 14(c)) given that the meeting does not need to be scheduled for that time.   

219.               Zahra is a host in a restaurant. She is also Muslim and wears a Hijab. The owner of the restaurant, Jane, imposes a new requirement that all staff must wear a specific uniform for food safety purposes and that Zahra must remove her Hijab when wearing the uniform. Zahra asks Jane whether she can be exempt from the requirement as she is not involved in food preparation. Jane insists that Zahra comply with the new uniform requirements, including the requirement that the Hijab be removed. In this example, a complaint of indirect discrimination could be made as Jane is proposing to impose a condition (subclause 14(a)) that would disadvantage people who wear religious dress (subclause 14(b)) and it may not be reasonable given that Zahra is not involved in food preparation.

220.               Mandeep joins a local sporting club to play recreational cricket. Mandeep is also Sikh and wears a turban. The board of the club requires that all batsmen wear a helmet whilst batting for safety reasons. Mandeep is concerned that this means he will be unable to wear religious dress whilst playing. In these circumstances, the actions of the board are unlikely to constitute indirect discrimination as the requirement is reasonable to protect the safety of players and is proportionately restricted to on-field activities (subclause 14(c)). 

221.               Daniel works in a retail outlet where he is required to wear a prescribed uniform of a polo shirt and trousers containing the company’s logo. Daniel wishes to instead wear his own T-shirt containing a picture of his favourite musician whom he worships. Daniel’s employer refuses his request and directs him to comply with the employer’s uniform requirement so that customers in the store can identify Daniel as a staff-member and seek assistance if needed. In this example, the actions of the employer are unlikely to constitute indirect discrimination because the wearing of the T-shirt does not meet the definition of religious belief or activity (subclause 5(1)) and that the uniform requirement is reasonable to ensure that Daniel can be identified as a staff member for the purpose of providing sales assistance.

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

222.               Clause 15 prohibits discrimination by a qualifying body in the imposition of qualifying body rules.

Definition of qualifying body

223.               Subclause 5(1) defines the term ‘qualifying body’ to mean ‘an authority or body that is empowered to confer, renew, extend, revoke, vary or withdraw an authorisation or qualification that is needed for, or facilitates, any of the following by an individual:

a.       the practice of a profession;

b.      the carrying on of a trade;

c.       the engaging in of an occupation.

224.               Examples of qualifying bodies include bodies which certify or register professionals such as lawyers, teachers, accountants or health practitioners. In addition, universities and vocational education and training providers, such as TAFEs, would constitute qualifying bodies to the extent that they are empowered to grant authorisations or qualifications that are needed for, or which facilitate, the practice of a profession, trade or occupation. For example, a university which confers medical degrees which are required for the practice of medicine would be a qualifying body in relation to the conferral of those qualifications.

225.               Examples of qualifying body conduct rules may include professional or registration standards or policies which require persons to engage, or not engage, in certain behaviour in order to receive or maintain their qualification or authorisation.

Operation of clause 15

226.               Subclause 15(1) protects against the imposition of qualifying body conduct rules which limit the ability of professionals or members of a trade or occupation to make statement of beliefs in their personal capacity. Subclause 5(1) defines statement of belief, the meaning of which is discussed in relation to clause 12.

227.               This clause recognises that individuals, including, for example, teachers, lawyers, health professionals and tradespeople, should not be at risk of losing their registration or qualifications by reason of the expression of their religious beliefs in their personal capacity. In addition, students of universities and other vocational education and training institutions, to the extent that those bodies are qualifying bodies, should not be at risk of not receiving their qualification due to the expression of their religious beliefs.

228.               This presumption only operates in relation to conduct rules that restrict or prevent a person from making a statement of belief other than in the course of practising their profession, trade or occupation. Nothing in this subclause affects the ability of qualifying bodies to regulate religious expression by persons in the course of engaging in their profession, trade or occupation.

229.               Subclause 15(2) provides that a qualifying body conduct rule which would have the effect of restricting or preventing a person from making a statement of belief other than in the course of practising their profession, carrying on their trade or engaging in their occupation is not discrimination if compliance with the rule is an essential requirement of the profession, trade or occupation.

230.               Whether compliance with a qualifying body conduct rule is an essential requirement of the profession, trade or occupation will require consideration of whether compliance is an essential element of the profession, such as whether compliance is clearly necessary to carry out the particular profession or whether the practice of that profession would be essentially the same if that requirement were dispensed with.

231.               In addition, this provision requires an objective assessment of whether a particular rule is an essential requirement of the particular profession, trade or occupation. This must be determined by reference to the relevant profession, trade or occupation.

232.               Clause 15(3) clarifies that clause 15 does not apply to statements which are malicious, or that a reasonable person would consider would threaten, intimidate, harass or vilify another person or group of persons, or that would counsel or promote a serious offence per paragraph 35(1)(b) and clarified in Note 2.

233.               Vilify, in relation to a person or group of persons, is defined in subclause 5(1) as incite hatred or violence towards the person or group, and is discussed further at clause 12. These provisions acknowledge that there are circumstances where it is legitimate for employers to place limits on their employees’ religious expression. Note 1 specifies that a moderately expressed religious view that does not incite hatred or violence would not constitute vilification.

234.               Subclause 15(4) provides that clause 15 in no way limits the indirect discrimination provisions outlines in clause 14.

Illustrative examples of clause 15

235.               A qualifying body for electricians has a set of rules that must be followed for people to retain their qualifications and work as an electrician. The qualifying body chooses to create a new rule that prevents electricians from expressing any religious views outside of work, as the body wants to maintain a completely secular stance. The rule states that an electrician would have their qualifications terminated if they do not follow the rule. In this example, the rule may be unlawful under clause 15 because it would restrict or prevent electricians from making statements of belief outside of work. It is also unlikely the body could argue that the rule meets the requirements under subclause 15(2).

236.               A qualifying body for legal practitioners sets out the rules that people must follow to retain their legal qualifications. One of the rules states that legal practitioners are not permitted to express religious beliefs relating to the legitimacy of the legal system in their personal or professional capacity. While this rule may restrict or prevent lawyers from making statements of belief (subclause 15(1)), it is likely the qualifying body could establish that the rule is an essential requirement of the legal profession under subclause 15(2). This is because a belief in the legitimacy of the legal system is essential for a legal practitioner to carry out their professional obligations.

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

237.               Clause 16 extends the application of parts of the Bill to people who have an association with an individual who holds religious beliefs or engages in religious activities.

238.               Accordingly, the concept of discrimination in Part 3 and the prohibition of discrimination in certain areas of public life in Part 4 are extended to apply to associates. In order for discrimination against an associate to be made out under this Bill, the test of discrimination in clause 13 or 14 must be established and the discrimination must occur in an area of public life.

239.               Clause 16 does not include clause 15 (qualifying body conduct rules) or Part 2 (conduct that is not discrimination).

240.               The clause would ensure that all conduct that has a discriminatory intent or effect is made unlawful by this Bill, even where that conduct is directed towards a third party. Although this form of discrimination is not directed towards the person who holds or engages in the relevant religious belief or activity, discrimination against associates still restricts that person’s ability to publicly manifest their faith, especially if they are in fear that their relatives or other associates may be subject to discrimination because of their faith. In addition, this clause recognises that associates are often subject to particularly pernicious forms of discrimination, such as people in interfaith marriages or families. 

241.               In addition, the Bill would provide protection from discrimination for persons who do not hold or engage in a particular religious belief or activity but are discriminated against on the basis of their association with an individual who holds or engages in that particular religious belief or activity. This includes associates who are discriminated against because of their association with an individual who does not hold or engage in a particular religious belief or activity. This is clarified in the note under clause 16.

242.               The extended meaning of discrimination in clause 6 also applies to discrimination against associates. For example, it would be unlawful to discriminate against a person on the basis that their companion wears a turban, and is therefore presumed to be Sikh. 

243.               The note under clause 16 provides a further example, that it would be unlawful under clause 19 for an employer to discriminate against an employee on the ground of a religious belief or activity of the employee’s spouse.

244.               Subclause 16(2) provides that an individual may have an association with another person 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.   

245.               Subclause 5(1) defines ‘near relative’ to include spouses or de facto partners, as well as parents, grandparents, children, grandchildren, siblings, including step-relations of all of these categories, and anyone who has any of those relationships to the spouse or de facto partner. The terms child, step‑child, de facto partner, parent and step‑parent are also defined in subclause 5(1).

246.               Clause 16 is consistent with similar provisions in the Disability Discrimination Act, the Racial Discrimination Act, and all state and territory anti-discrimination Acts, which provide for the extended application of those Acts to associates.

247.               Moshinsky J in Eisele v Commonwealth [2018] FCA 15 set out useful commentary on the interpretation of the associates clause in the Disability Discrimination Act, with which this associates clause is consistent. This commentary stepped out the understanding of the provision in plain terms, which may provide clarity when applying an associates provision to particular facts.

Coverage of bodies corporate

248.               Subclause 16(3) provides that a body corporate has an association with an individual if a reasonable person would closely associate the body corporate with that individual.

249.               As such, a body corporate would be able to make a claim for religious discrimination if it has experienced unlawful discrimination due to the religious beliefs or activities of a natural person that it is closely associated with. This is the only mechanism by which a body corporate could make a claim of unlawful discrimination under the Bill.

250.               This provision is important to protect the religious freedoms of individuals who may be associated with bodies corporate. In order for a person to freely express their religious views, it is necessary to protect their associates, including bodies corporate, from unlawful discrimination.

251.               For a body corporate to rely on this provision, it must establish that a reasonable person would closely associate the body corporate with the relevant person. This test is intended to ensure that the associate clause is appropriately limited to those relationships that are close and identifiable. The outcome of the reasonable person inquiry will depend on the facts and circumstances of the case.

252.               This clause does not purport to protect bodies corporate from discrimination on the basis of their association with other bodies corporate. For example, a body corporate would be protected against discrimination in relation to their association with a natural person, such as their Chief Executive Officer. However, a body corporate would not be protected due to their association with a non‑natural person, such as a body corporate that was a supplier.

253.               This approach is consistent with existing case law relating to the inclusion of bodies corporate as associates.[2]  For example, in Koowarta v Bjelke-Petersen (1982) 153 CLR 168, the High Court found that an associate clause in section 12 of the Racial Discrimination Act 1975 did extend to bodies corporate, in addition to natural persons. The High Court applied the ordinary meaning of the term ‘associate’ (as it is not defined in the Racial Discrimination Act) and noted the following: ‘According to the Shorter Oxford English Dictionary, “associate,” when used as a substantive, means, “One who is united to another community of interest, etc.; a partner, comrade, companion.” Although obviously a corporation cannot have an associate in the sense of a comrade or companion, it seems to me possible to say that a person who is in business in partnership with a corporation, or has some other community of interest uniting him with the corporation, is associated with it. Provisions such as those of section 12, which are intended to preserve and maintain freedom from discrimination, should be construed beneficially.’[3] 

Illustrative examples of clause 16

254.               Henry owns a chain of restaurants called ‘Burgers by Henry’, which are operated through a body corporate. Henry is a high profile member of his community and regularly appears on local radio channels. He is also Catholic. During an interview on local political issues, Henry criticises the religious views of a member of his local church, which Henry considers are not correct according to Henry’s own religious beliefs. Following the interview, a property manager refuses the body corporate’s request to hire facilities for business purposes. The property manager disagrees with Henry’s religious views and will not allow his business to use the premises. Clause 16 means that the body corporate could lodge a complaint with the Commission on the basis that it has experienced direct discrimination (clause 13) in relation to the use of facilities due to the religious beliefs or activities of its owner, Henry. Given Henry’s public profile and the name of the business, a reasonable person is likely to closely associate the body corporate with Henry (subclause 16(3)).

255.               Gisele is a religious leader who is prominent in the media. She is also a philanthropist and operates a successful charity which is dedicated to advancing her religion and helping others. Gisele’s charity, a body corporate, makes an application to a state-owned entertainment centre to hire a function room to host a fundraiser. The application is denied, with the entertainment centre citing the contentious nature of Gisele’s religious views as the reason. Under clause 16, the charity could make a complaint of direct discrimination (clause 13) in relation to goods and services due to its association with the religious beliefs and activities of its owner, Gisele. Given that Gisele is the owner of the charity, it is likely that a reasonable person would closely associate the body corporate with Gisele (subclause 16(3)).

Clause 17        Conduct engaged in for 2 or more reasons

256.               Clause 17 provides that where the discriminator has two or more reasons for doing a discriminatory act, the discriminatory reason need only be one of the reasons for the act, whether or not it is the dominant or a substantial reason for the doing of the act. 

257.               Clause 17 specifies that where conduct is engaged in for multiple reasons, which includes a person’s religious belief or activity, then the conduct is taken to be engaged in for that reason. This ensures that the prohibition against discrimination on the basis of religious belief or activity extends to discriminatory acts motivated by more than just religious belief or activity.

258.               Subclause 17(b) specifies that a person’s religious belief or activity need not be the dominant or a substantial reason for the conduct. This provision recognises that it would be very difficult for a complainant to prove that a discriminatory reason was the dominant or a substantial reason for the conduct. In addition, this provision is intended to avoid situations in which a person is able to avoid liability for otherwise discriminatory conduct where they can prove that there were additional motivations for their conduct and the person’s religious belief or activity was only a secondary motivation.

259.               This provision is intended to promote attitudinal change and build community understanding that less favourable conduct which is motivated by a person’s religious belief or activity, to whatever extent, constitutes discrimination and is not permissible in public life. This ensures that this Bill promotes the elimination of all forms of discrimination on the basis of religious belief or activity, in line with the objects of the Bill in clause 3.

260.               This provision ensures that there is an effective remedy for discriminatory conduct motivated by a person’s religious belief or activity, regardless of whether a person’s religious belief or activity was the sole, dominant, or a substantial reason for that conduct.

PART 3—UNLAWFUL DISCRIMINATION

Division 1—Introduction

Clause 18        Introduction

261.               Clause 18 introduces Part 4 of this Bill.

262.               Part 4 of this Bill sets out when discrimination on the ground of a person’s religious belief or activity is unlawful (Divisions 2 and 3) and the associated exceptions which are available (and exemptions which may be granted) in certain circumstances (Division 4).

263.               The protected areas of public life in Divisions 2 and 3 and the exceptions in Division 4 are broadly analogous to those provided for by the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act. This Part therefore ensures that discriminatory conduct on the ground of a person’s religious belief or activity is made unlawful in the same manner as discrimination on the basis of existing protected attributes including age, sex or disability.

264.               The note under subclause 18(1) clarifies that complaints of unlawful discrimination under Part 4 of this Bill can be made to the Commission. The necessary consequential amendments to support the ability of the Commission to inquire into complaints of unlawful discrimination under this Bill will be made by the Religious Discrimination (Consequential Amendments) Bill 2021.

265.               Some conduct is not discrimination under the Bill. This includes certain conduct engaged in by religiousbodies and certain statements of belief (see Part 2). As such conduct is not discrimination, Part 4 does not apply to it.

Division 2—Discrimination in work

Clause 19        Employment

266.               Clause 19 provides that it is unlawful for an employer to discriminate against an employee or prospective employee on the ground of religious belief or activity.

267.               Employment is defined broadly under subclause 5(1) to include work under a contract or work that a person is otherwise appointed or engaged to perform, whether on a full-time, part-time, temporary or casual basis, or whether the work is paid or unpaid. Subclause 5(1) also clarifies that an employer includes a person acting or representing themselves to be acting on behalf of an employer.

268.               The prohibition of discrimination in employment in this clause will therefore apply to discrimination by all employers, including discrimination by Commonwealth, state and territory governments against existing or prospective public sector employees.

269.               The note following subclause 19(1) clarifies that employment has an extended meaning in this Bill, in accordance with the definition under subclause 5(1). The note also clarifies that, in accordance with section 18A of the Acts Interpretation Act, the terms employee and employer have a corresponding extended meaning. 

270.               This extended meaning of employment includes, for example, contract work, work on commission and appointments, such as appointments to company boards. It is intended that, similar to existing anti‑discrimination law, discrimination against contract workers and commission agents on the basis of religious belief or activity would be unlawful under this Bill. This ensures that work relationships outside of the traditional employer to employee context are afforded the same protections under this Bill.

271.               In addition, the extended meaning of employment includes unpaid work, such as work undertaken by volunteers or unpaid interns. This ensures that any person who is undertaking work for an employer is protected from discrimination under this Bill, regardless of whether they are paid or not. The inclusion of unpaid work in this Bill reflects modern work practices, and ensures that workers cannot be subject to discrimination on the ground of their religious belief or activity merely because they are working in an unpaid capacity.

272.               Subclause 19(1) prohibits discrimination in recruitment decisions. This subclause provides that it is unlawful for an employer to discriminate against another person on the ground of their religious belief or activity in the arrangements made for determining who should be offered employment (paragraph 19(1)(a)), in determining who should be offered employment (paragraph 19(1)(b)), or in the terms and conditions on which the employment is offered (paragraph 19(1)(c)).

273.               Subclause 19(2) prohibits discrimination in the course of an employee’s employment. This subclause provides that it is unlawful for an employer to discriminate against an employee on the ground of their religious belief or activity in the actual terms and conditions afforded to the employee (paragraph 19(2)(a)), by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment (paragraph 19(2)(b)), by dismissing the employee (paragraph 19(2)(c)), or by subjecting the employee to any other detriment (paragraph 19(2)(d)).

274.               This provision is subject to the exceptions that permit discrimination where it is necessary due to the inherent requirements of the work, for domestic duties, and for certain conduct by religious hospitals, aged care facilities, accommodation providers and disability service providers in clauses 9 and 39.

Clause 20        Partnerships

275.               Clause 20 provides that it is unlawful to discriminate in partnerships of three or more people on the ground of religious belief or activity.

276.               Subclause 20(1) prohibits discrimination in the initial formation of a partnership. This subclause provides that it is unlawful for three or more persons proposing to form a partnership to discriminate against a person on the ground of their religious belief or activity in determining who should be invited to become a partner (paragraph 20(1)(a)) or in the terms or conditions upon which they are invited (paragraph 20(1)(b)).

277.               Subclause 20(2) prohibits discrimination in the invitation of new persons to join an existing partnership. This subclause provides that it is unlawful for any partner or partners to discriminate against a person on the ground of their religious belief or activity in determining who should be invited to become a partner (paragraph 20(2)(a)) or in the terms or conditions upon which they are invited (paragraph 20(2)(b)).

278.               Subclause 20(3) prohibits discrimination against an existing partner. This subclause provides that it is unlawful for any partner or partners to discriminate against another partner on the ground of their religious belief or activity by denying or limiting access to any benefit (paragraph 20(3)(a)), by expelling the partner (paragraph 20(3)(b)), or by subjecting the partner to any other detriment (paragraph 20(3)(c)).  For example, it may be unlawful for a partner in an accounting partnership to expel an existing partner because they are Buddhist or to require a Jewish partner’s attendance at events which are consistently held on the Sabbath.

279.               This provision is subject to the exceptions that permit discrimination where it is necessary due to the inherent requirements of the work, for domestic duties, and for certain conduct by religious hospitals, aged care facilities, accommodation providers and disability service providers in clauses 9 and 39.

Illustrative example of clause 20

280.               Three lawyers, all of whom are Catholic, are partners in a law firm. One of the partners, John, proposes to invite a colleague from their firm, Samantha, to join the partnership in recognition of her experience and commitment to the firm. John’s fellow partners, Peter and Andrew, would prefer not to invite Samantha as she is an atheist, but agree to let her join if she pays a higher financial contribution. In this example, Samantha could lodge a complaint under clause 20(1)(b) of the Bill on the basis that she has been discriminated against in the terms on which she was invited to join the partnership.

Clause 21        Qualifying bodies

281.               Clause 21 provides that it is unlawful for a qualifying body to discriminate against a person in relation to authorisations or qualifications on the ground of religious belief or activity.

282.               Subclause 5(1) defines a qualifying body as an authority or body that has certain powers in relation to authorisations or qualifications that are required to practice a profession, trade or occupation. This could include, for example, bodies which certify professionals, such as lawyers or accountants, or bodies which grant qualifications which are necessary to carry out particular occupations, such as surf lifesaving qualifications.

283.               Clause 21 prohibits discrimination in the conferral, renewal, extension, revocation, variation or withdrawal of an authorisation or qualification. This clause provides that it is unlawful for a qualifying body to discriminate against a person on the ground of their religious belief or activity by refusing or failing to confer, renew, extend or vary an authorisation or qualification (subclause 21(a)), in the terms or conditions on which the authority or body is prepared to confer, renew, extend or vary the authorisation or qualification (subclause 21(b)), or by revoking, varying or withdrawing the authorisation or qualification (subclause 21(c)).

284.               This provision is subject to the inherent requirements of the work exception in subclause 39(4).

Clause 22        Registered organisations

285.               Clause 22 provides that it is unlawful for a registered organisation, a registered organisation’s committee of management or a member of the committee of management to discriminate against a person on the ground of religious belief or activity in relation to membership.

286.               Subclause 22(3) defines a registered organisation to mean an organisation registered under the Fair Work (Registered Organisations) Act 2009. This includes associations of employers, associations of employees (a union) or an enterprise association.

287.               Subclause 22(1) prohibits discrimination in applications for membership of a registered organisation. This subclause provides that it is unlawful for a registered organisation, committee of management or member of a committee of management to discriminate against a person on the ground of their religious belief or activity by refusing or failing to accept an application for membership (paragraph 22(1)(a)) or in the terms or conditions upon which the registered organisation is prepared to admit the person (paragraph 22(1)(b)).

288.               Subclause 22(2) prohibits discrimination against existing members. This subclause provides that it is unlawful for a registered organisation, committee of management or member of a committee of management to discriminate against a member on the ground of their religious belief or activity by denying or limiting the member’s access to any benefit provided by the registered organisation (paragraph 22(2)(a)), by depriving the member of their membership or varying its terms (paragraph 22(2)(b)), or by subjecting the member to any other detriment (paragraph 22(2)(c)).

Clause 23        Employment agencies

289.               Clause 23 provides that it is unlawful for an employment agency to discriminate against a person in the provision of its services on the ground of religious belief or activity.

290.               Clause 23 prohibits discrimination in the provision of an employment agency´s services. This clause provides that it is unlawful for an employment agency to discriminate against a person on the ground of their religious belief or activity by refusing to provide the person with any of its services (subclause 23(a)), in the terms or conditions on which it offers to provide its services (subclause 23(b)) or in the manner in which it provides its services (subclause 23(c)).

291.               This provision is subject to the inherent requirements of the work exception in subclause 39(5).

Division 3—Discrimination in other areas

Clause 24        Education

292.               Clause 24 provides that it is unlawful for an educational institution to discriminate against a student or prospective student on the ground of religious belief or activity.

293.               Educational institution is defined broadly in subclause 5(1) to include schools, colleges, universities and other institutions in which education or training is provided. Other institutions in which education or training is provided may include preschools or other early learning centres to the extent that they provide early childhood education.

294.               Subclause 24(1) prohibits discrimination in admission decisions. This subclause provides that it is unlawful for an educational institution to discriminate against a prospective student on the ground of their religious belief or activity by refusing or failing to accept an application for admission (paragraph 24(1)(a)), or in the terms or conditions upon which the institution is prepared to admit the person as a student (paragraph 24(1)(b)).

295.               Subclause 24(2) prohibits discrimination against existing students throughout their education or training. This subclause provides that it is unlawful for an educational institution to discriminate against an existing student on the ground of their religious belief or activity by denying or limiting the student’s access to any benefit provided by the institution (paragraph 24(2)(a)), expelling the student (paragraph 24(2)(b)) or subjecting the student to any other detriment (paragraph 24(2)(c)).

296.               This provisionis subject to clause 7, which provides that certain conduct engaged in by religious bodies, which includes religious educational institutions, does not constitute discrimination.

Illustrative example of clause 24

297.               Abbey recently graduated high school and hopes to become a mechanic. She is also Christian and wears rosary beads. Abbey applies to a training college for a position on its mechanic training program. During her interview with the admissions board, Abbey is asked inappropriate questions about her religious beliefs. She is then informed that she would not be a “good fit” for the program and her application is refused. In this example, Abbey could lodge a complaint under subclause 24(1) of the Bill on the basis that the training college has refused to admit her as a student (paragraph 24(1)(a)) on the ground of her religious beliefs or activities.

Clause 25        Access to premises

298.               Clause 25 provides that it is unlawful for a person to discriminate against another person on the ground of religious belief or activity in relation to access to public premises and facilities.

299.               Subclause 5(1) defines premises non-exhaustively to include structures, buildings, aircraft, vehicles, vessels, places and parts of premises.

300.               This clause solely relates to access to, or the use of, premises that the public or a section of the public is entitled or allowed to use, on a commercial or non‑commercial basis. Accordingly, this provision does not regulate access to private property.

301.               Subclauses 25(a) and (b) prohibit discrimination in relation to access to premises. These subclauses provide that it is unlawful for a person to discriminate against another person on the ground of their religious belief or activity in refusing to allow that person access to, or the use of, public premises (subclause 25(a)), or in the terms and conditions upon which the person is prepared to allow the other person access to, or use of, the public premises (subclause 25(b)).

302.               Subclauses 25(c) and (d) prohibit discrimination in relation to the use of public facilities within such premises. These subclauses provide that it is unlawful for a personto discriminate against another person on the ground of their religious belief or activity in refusing to allow the person the use of any such facilities (subclause 25(c)), or in the terms and conditions upon which the person is prepared to allow the other person the use of such facilities (subclause 25(d)).

303.               Subclause 25(e) provides that it is unlawful for a person to discriminate against another person on the ground of their religious belief or activity by requiring a person to leave the premises or to cease using any public facilities.

Illustrative example of clause 25

304.               Catherine and her children are dining at a restaurant in a public shopping centre. Catherine is Catholic and wears a crucifix necklace. She also says grace with her children before they eat. The owner of the restaurant, Marshall, is an atheist and disproves of religious practices. He aggressively asks Catherine and her children to leave the restaurant immediately and bans them from returning. In this example, Catherine could lodge a complaint under clause 25 of the Bill on the basis that she has been refused access to premises that the public is entitled or allowed to use (subclause 25(a)) on the basis of her religious beliefs and activities.

Clause 26        Goods, services and facilities

305.               Clause 26 provides that it is unlawful for someone who provides goods, services or facilities to discriminate against another person on the ground of religious belief or activity in relation to the provision of such goods, services or facilities.

306.               This clause applies to the provision of goods, services and facilities on both a commercial and non-commercial basis. Subclause 5(1) defines services broadly to mean services of any kind. This includes, for example, services relating to banking, insurance, superannuation, grants, loans, credit, finance, entertainment, recreation, refreshment, transport, travel, telecommunications, services provided by a profession or trade, or services provided by government, a government authority or a local government body.

307.               Clause 26 prohibits discrimination in the provision of goods, services or facilities. This clause provides that it is unlawful for a person to discriminate against another person on the ground of their religious belief or activity by refusing to provide goods, services or facilities (subclause 26(a)), in the terms or conditions on which those goods, services or facilities are provided (subclause 26(b)) or in the manner in which the goods, services or facilities are provided (subclause 26(c)). 

Illustrative example of clause 26

308.               Davina is organising a celebratory event for her family for a religious holiday. Davina attempts to hire a local community centre for the event, but the operators refuse her request on the basis that their internal policy does not permit religious gatherings. In this example, Davina could lodge a complaint under clause 26 of the Bill as she has been refused access to facilities (subclause 26(a)) on the basis of her religious beliefs or activities.

Clause 27        Accommodation                                                                                                  

309.               Clause 27 provides that it is unlawful for a principal or agent to discriminate against another person on the ground of religious belief or activity in relation to accommodation. 

310.               Accommodation is defined broadly in subclause 5(1) to include both residential and business accommodation. 

311.               Subclause 27(1) prohibits discrimination in applications for accommodation. This subclause provides that it is unlawful for a principal or agent to discriminate against another person on the ground of their religious belief or activity by refusing an application for accommodation (paragraph 27(1)(a)), in the terms or conditions upon which accommodation is offered (paragraph 27(1)(b)), or by deferring an application for accommodation or giving a person lower priority in a list of applicants (paragraph 27(1)(c)).

312.               Subclause 27(2) prohibits discrimination throughout a person’s occupation of accommodation. This subclause provides that it is unlawful for a principal or agent to discriminate against another person on the ground of their religious belief or activity by denying or limiting the person’s access to any benefit associated with the accommodation (paragraph 27(2)(a)), by evicting the person (paragraph 27(2)(b)) or by subjecting the person to any other detriment (paragraph 27(2)(c)).

313.               This provision is subject to the exception for religious accommodation providers and conduct in the course of administering religious camps and conference sites in clauses 8, 9 and 40 of the Bill.

Illustrative example of clause 27

314.               Ramandeep is looking for a new rental property. He is Sikh and wears a turban. He has secure employment and a good rental history. Ramandeep lodges a rental application for a property within his budget with a property manager, Cameron. Ramandeep is offered the property, but only if he pays six-months rent in advance and signs a two-year lease. Cameron advises him that the owner of the property does not like “religious types” and would only accept his application with this additional security. In this example, Ramandeep could lodge a complaint under clause 27 of the Bill as he has been offered less favourable terms to rent the property because of his religious beliefs or activities.

Clause 28        Land

315.               Clause 28 provides that it is unlawful for a principal or agent to discriminate against another person on the ground of religious belief or activity in the disposal of land. 

316.               Clause 28 prohibits discrimination in the disposal of an estate or interest in land. This clause provides that it is unlawful for a person to discriminate against another person on the ground of their religious belief or activity by refusing or failing to dispose of an estate or interest in land to that person (subclause 28(a)) or in the terms or conditions on which the estate or interest in land is offered (subclause 28(b)).

317.               This provision is subject to the exception for the disposal of land by way of wills or gifts in subclause 36(2).

Illustrative example of clause 28

318.               Ralph is a real estate agent and is responsible for selling a residential property. Ralph has agreed on a sale price with a buyer, but when he is advised that the buyer is Buddhist, he refuses to proceed with the sale. Instead, Ralph raises the asking price of the property for that buyer (and only that buyer). Under clause 28, the buyer could lodge a complaint of direct discrimination (clause 13) on the basis that Ralph has altered the terms on which the land is offered on the basis of their religious beliefs (subclause 28(a)). 

Clause 29        Sport

319.               Clause 29 provides that it is unlawful for a person to discriminate against another person on the ground of religious belief or activity in sporting activities. 

320.               Clause 29 provides that it is unlawful for a person to discriminate against another person on the ground of their religious belief or activity by excluding that person from participation in a sporting activity. Sporting activity includes, for example, umpiring, coaching and the administration of sporting activities.

321.               This provision does not affect the ability of sporting organisations to impose reasonable conditions, requirements or practices in relation to a sporting activity, in accordance with clause 14. It would not be unlawful for a sporting organisation to impose reasonable safety requirements, such as a requirement that all players wear a helmet or a requirement that no players may wear jewellery, even though these requirements may have a disproportionate effect on people who wear religious dress, such as Sikh men who wear turbans or Christian people who wear a crucifix.

Illustrative example of clause 29

322.               Bhasu is hoping to join a local sporting club to play recreational football. He is also Hindu. During a trial for one of the teams, Bhasu feels excluded by the other players and is ultimately not offered a place. When he asks why he was not accepted, the coach, David, explains that the team did not have space for ‘someone who believe in things so differently to them’ to join. In this example, Bhasu could lodge a complaint under clause 29 of the Bill as he has been excluded from participating in a sporting activity based on his religious beliefs, among other factors.

Clause 30        Clubs

323.               Clause 30 provides that it is unlawful for a club, a club’s committee of management or a member of the committee of management to discriminate against another person on the ground of religious belief or activity in relation to membership.

324.               Club is defined in subclause 5(1) to mean an association of persons which comes together for social, literary, cultural, political, sporting, athletic or other lawful purposes. The club must provide and maintain its facilities at least in part from its own funds. It is not relevant whether the club is incorporated or unincorporated.

325.               Subclause 30(1) prohibits discrimination in applications for membership of a club. This subclause provides that it is unlawful for a club, committee of management or member of the committee of management to discriminate against another person on the ground of their religious belief or activity by refusing or failing to accept an application for membership (paragraph 30(1)(a)) or in the terms or conditions upon which the club is prepared to admit the person (paragraph 30(1)(b)).

326.               Subclause 30(2) prohibits discrimination against existing members. This subclause provides that it is unlawful for a club, committee of management or member of the committee of management to discriminate against another person on the ground of their religious belief or activity in the terms or conditions of membership afforded to the member (paragraph 30(2)(a)), by refusing or failing to accept an application for a particular class of membership (paragraph 30(2)(b)), by denying or limiting the member’s access to any benefit provided by the club (paragraph 30(2)(c)), by depriving the member of their membership or varying its terms (paragraph 30(2)(d)), or by subjecting the member to any other detriment (paragraph 30(2)(e)).

327.               Clause 30 does not apply to any other conduct in relation to a club. For example, this provision does not apply to any process by which a club appoints people to the board of management for the club – this means it would not be unlawful discrimination under the Bill if a club had a policy of preferencing people on the basis of their religious belief or activity in appointments to the board of management.

328.               Clause 30 is subject to the exception for clubs whose membership is restricted to people who hold or engage in a particular religious belief or activity in clause 42.

Illustrative example of clause 30

329.               George is a car enthusiast and is interested in joining a local motoring club. George is not religious. During a meet-and-greet session for the club, George is advised that he is welcome to join and attend meetings, which requires a significant payment, but he is not welcome to attend some events as he is not Christian. The organisers explain that the club was started by members of a local church and access to popular events is restricted to the Christian community. In this example, George could make a complaint under clause 30 of the Bill on the basis that his access to benefits provided by the club are restricted due to his non-religious beliefs (paragraph 30(2)(c)). As membership of the club is not limited to people who are Christian, the exception in clause 42 does not apply.

Clause 31        Requesting or requiring information

330.               Clause 31 provides that it is unlawful for a person to request or require information from another person in order to discriminate against that person on the ground of religious belief or activity.

331.               Subclauses 31(a) and (b) provide that it is unlawful for a person to request or require a person to provide information for the purposes of engaging in conduct that would constitute unlawful discrimination under this Part. This prohibition therefore extends to requesting or requiring information for the purposes of engaging in unlawful discrimination in all of the protected areas of public life in this Part.

332.               This prohibition does not extend to requesting information which is not for the purpose of engaging in unlawful discrimination, such as requesting information necessary to determine whether that person could perform the inherent requirements of the work, or requesting information for the purpose of collecting statistical information about the composition of a workforce in terms of religious identity. For example, an employer asking a prospective employee whether they observed any holy days during which they could not work for the purposes of determining whether the prospective employee could undertake the inherent requirements of the work could constitute a non-discriminatory purpose.

333.               This provision is most commonly applicable in recruitment situations, but extends to any situation where a person requests information for the purposes of engaging in future conduct which would constitute unlawful discrimination.

Illustrative example of clause 31

334.               Lily is attending a job interview at an architecture firm. She is also Jewish. The interviewer, Kylie, asks Lily a number of inappropriate questions about her political and religious beliefs. Kylie is an atheist and would prefer to hire a person who shares her views, including her non-religious views. In this example, Kylie’s conduct may be unlawful under clause 31 of the Bill as she is requesting information from Lily about her religious views in order to potentially discriminate against her.

Clause 32        Commonwealth laws and programs

335.               Clause 32 provides that it is unlawful for a person to discriminate in the administration of Commonwealth laws and programs.

336.               Subclause 32(a) provides that it is unlawful for a person who performs functions or exercises powers under Commonwealth laws or for the purposes of a Commonwealth program to discriminate against a person on the basis of that person’s religious belief or activity in the performance of those functions or exercise of those powers. In addition, subclause 32(b) provides that it is unlawful for a person who has any other responsibility for the administration of Commonwealth laws or the conduct of Commonwealth programs to discriminate against a person on the basis of that person’s religious belief or activity in fulfilling that responsibility.

337.               This prohibition includes programs run by or on behalf of Commonwealth government departments and decisions made by Commonwealth officers under federal law.

338.               This provision is subject to the exception for conduct in direct compliance with Commonwealth legislation in clause 37.

Illustrative example of clause 32

339.               Masood has applied to a Commonwealth grants program for funding to provide childcare services. When reviewing the application, a Commonwealth official, Patricia, gives the grants application a low score even though it meets the criteria for the program. Patricia dislikes Muslim people and does not want to see Commonwealth funds supporting their facilities. In this example, Patricia’s conduct would be unlawful under clause 32 of the Bill because she has discriminated against Masood on the basis of his religious beliefs.

Clause 33        Victimisation 

340.               Clause 33 provides that it is unlawful for a person to engage in victimising conduct against another person. This clause is intended to ensure that people can safely and confidently use the complaint mechanisms established under this Bill without being threatened or subjected to detriment for doing so.

341.               Victimisation occurs when a person subjects, or threatens to subject, another person to detriment because they believe the other person has taken, or proposes to take, some form of action under this Bill. This includes making a complaint to the Commission (paragraph 33(1)(a)), commencing proceedings under the AHRC Act (paragraph 33(1)(b)), attending a conciliation conference held by the Commission (paragraph 33(1)(d)), or making an allegation that a person has engaged in unlawful conduct under the Act (paragraph 33(1)(g)).

342.               Clause 33 operates separately from clause 50, which provides that it is an offence for a person to engage in victimising conduct against another person. This offence provision is intended to provide a separate mechanism for the AFP to address particularly egregious forms of victimisation conduct. Clause 33 includes two notes to ensure users of the Bill are aware of the mirrored civil and criminal provisions. 

343.               This Bill includes separate civil (clause 33) and criminal (clause 50) provisions to remedy existing legal uncertainty and ensure that it is clear that victimising conduct may be addressed as both a criminal and civil matter.

344.               Prior to 2011, the case law held that victimisation provisions in anti-discrimination Acts, such as subsection 94(1) of the Sex Discrimination Act, could give rise to both civil and/or criminal proceedings. This was because the definition of ‘unlawful discrimination’ referenced in section 46PO of the AHRC Act (which provides the mechanism for a person to initiate civil proceedings if their complaint is terminated) specifically captured victimisation provisions in other anti-discrimination Acts, such as section 94 of the Sex Discrimination Act.[4]

345.               However, there has been three cases since 2011 that questioned whether the Federal Court or Federal Circuit and Family Court has jurisdiction to hear a civil application of ‘unlawful discrimination’ under the AHRC Act that relates to victimisation.[5] This legal uncertainty has arisen predominantly because the existing victimisation provisions are set out as criminal offences with criminal penalties.

346.               To remedy this legal uncertainty and clarify that victimisation conduct is unlawful and can form the basis of a civil proceeding, this Bill includes separate civil and criminal provisions. Similar amendments were made to the Sex Discrimination Act by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

347.               This approach is not intended to create ambiguity in relation to the existing victimisation provisions in other Commonwealth anti-discrimination Acts. The intention has always been that such provisions may form the basis of two causes of action – civil and criminal – which is made clear by their inclusion in the definition of ‘unlawful discrimination’ in the AHRC Act. 

Division 4—Exceptions and exemptions

Subdivision A—Introduction

Clause 34        Certain conduct by religious bodies is not covered by this Division

348.               Clause 34 provides that Divisions 2 and 3 of this Part ensure that certain conduct by religious bodies is not discrimination, and clarifies this conduct does not fall within an exception in Division 4.

Subdivision B—General exceptions

Clause 35        Counselling, promoting etc. a serious offence

349.               Clause 35 provides a general exception from the prohibition on discrimination for discrimination on the basis that a person has expressed a particular religious belief and in doing so counsels, promotes, encourages or urges conduct that would constitute a serious criminal offence.

350.               This exception recognises that the protections in this Bill from discrimination on the grounds of religious belief or activity should not extend to advocacy for the commission of serious offences under Australian law.

351.               This provision does not regulate the holding of religious beliefs, and nothing in this provision interferes with the ability of an individual to freely hold any religious belief. Rather, this provision ensures that certain expressions of particular religious beliefs will not attract the protection of anti-discrimination law.

352.               Subclause 35(1) provides that it is not unlawful to discriminate against a person on the ground of their religious belief or activity if:

a.       the person has expressed a particular religious belief (paragraph 35(1)(a))

b.      a reasonable person, having regard to all the circumstances, would conclude that, in expressing the belief, the person is counselling, promoting, encouraging or urging conduct that would constitute a serious offence (paragraph 35(1)(b)); and

c.       at the time the discrimination occurs, it is reasonable to assume that the person holds the particular belief (paragraph 35(1)(c)).

353.               Paragraphs 35(1)(a) and (c) clarify that this exception solely applies to religious beliefs that the individual has expressed and currently holds.

354.               Paragraph 35(1)(a) requires that the particular religious belief must have been expressed by the individual subject to the discrimination. This exception therefore does not apply to discrimination on the ground of beliefs which are imputed to a person on the basis of their religious belief or activity. This is intended to ensure that the exception does not allow discrimination which is based on religious stereotypes.

355.               This requirement also recognises the distinction between the holding of beliefs, which an individual is free to do, and the expression of those beliefs in the public sphere in a manner which advocates conduct which would constitute a serious offence.

356.               Paragraph 35(1)(a) uses the term ‘expresses a particular religious belief’ rather than ‘has or engages in a religious belief or activity’, as used elsewhere in this Bill. Although the term ‘has or engages in a religious belief or activity’ encompasses the expression of religious beliefs, the use of ‘expresses a particular religious belief’ in this provision is intended to reflect the limited application of this provision to only those beliefs which have been outwardly expressed by a person, and which counsel, promote, encourage or urge the commission of serious offences. It is not necessary to also apply paragraph 35(1)(a) to religious activities as most forms of religious activity which would engage this provision could be characterised as expressing a religious belief (for example, public prayer) or would be an unlawful religious activity (and so not covered by the Bill).

357.               A person may express a particular religious belief by making a statement, communication or any other oral or written form of expression of that belief. For example, a person may express a particular religious belief by stating that belief to another person or group of people or writing about that belief online or in an essay or pamphlet.

358.               There is no requirement under this paragraph that the belief must have been expressed directly to the discriminator. For example, a person may discriminate against another person on the basis of beliefs that have been expressed in public, in the media, online, or in any forum where the expression is attributable to that particular person. 

359.               Paragraph 35(1)(c) requires that, at the time the discrimination occurs, it must be reasonable to assume that the individual holds that particular belief. This is an objective test and is intended to ensure that past beliefs are not captured by this exception where it is not reasonable to assume the person still holds that same belief.

360.               Paragraph 35(1)(b) requires that a reasonable person, having regard to all the circumstances, would conclude that the person, in expressing the belief, is counselling, promoting, encouraging or urging conduct that would constitute a serious offence.

361.               This is an objective test and is intended to ensure that the expression of beliefs, or an expression concerning particular religious beliefs, are only captured by this exception where that expression would reasonably be considered to be advocating the commission of a serious criminal offence.

362.               Subclause 35(2) defines serious offence for the purposes of subclause 35(1). Subclause 35(2) defines serious offence as an offence involving harm or financial detriment that is punishable by imprisonment for two years or more under a law of the Commonwealth, state or territory.

363.               For the purposes of this clause, harm has the meaning given by the Criminal Code Act 1995 (the Criminal Code). The Dictionary of the Criminal Code defines harm as physical harm or harm to a person’s mental health, whether temporary or permanent, but does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.

364.               This definition is intended to capture serious offences which cause harm to individuals and the community at large.

365.               Financial detriment is not defined for the purposes of this provision. It is intended that offences related to fraud and dishonesty would be captured by this term.

366.               It is intended that this exception will apply to the advocacy of conduct that would constitute a serious offence under any Commonwealth, state or territory law, regardless of the jurisdiction in which the discrimination occurs. As the intention of this provision is not to criminalise conduct, ordinary jurisdictional boundaries are not relevant. Rather, the provision ensures that the protections in the Bill do not extend to advocacy for serious offences, and is intended to apply consistently on a national basis.

367.               This provision does not limit the application or the operation of any of the other exceptions in this Part.

Clause 36        Conferring charitable benefits

368.               Clause 36 provides a general exception from the prohibition on discrimination for the provision of charitable benefits in accordance with certain provisions of a charity’s governing rules or provisions of deeds, wills or other instruments.

369.               Subclause 36(1) provides a general exception from the prohibition on discrimination for the provision of benefits by registered charities in accordance with their governing rules.

370.               This exception is consistent with the existing exemptions for registered charities in section 34 of the Age Discrimination Act, section 49 of the Disability Discrimination Act and section 36 of the Sex Discrimination Act.

371.               Subclause 5(1) defines a registered charity as an entity registered under the Australian Charities and Not-for-profits Commission Act 2012 as a charity.

372.               Paragraph 36(1)(a) provides that the prohibition on discrimination on the ground of religious belief or activity in work (Division 2) and in other areas (Division 3) does not affect any provision of the governing rules of a registered charity which confers charitable benefits, or allows such benefits to be conferred, on persons of a particular religious belief or activity. Paragraph 36(1)(b) clarifies that it is not unlawful to discriminate in giving effect to such a provision. 

373.               This exception applies to all the areas of public life protected in Divisions 2 and 3 and is intended to operate alongside clause 8, which provides that certain conduct engaged in by religious bodies, which includes religious charities, does not constitute discrimination. This provision ensures that secular registered charities, as well as religious charities whose conduct may not fall within the scope of clause 8, may continue to provide charitable benefits to particular religious groups so long as it is in accordance with their governing rules. This recognises the vital role that charities play in civic life in Australia and that in order to address disadvantage it is often necessary to restrict benefits to those who need it most, which may include restricting benefits to persons of a particular religious belief or activity.

374.               However, this provision does not allow registered charities to discriminate in conferring charitable benefits generally. For example, it would be unlawful for a charity providing general services to assist the homeless to refuse to provide such services to a homeless Sikh person.

375.               This exception solely applies to charities registered in accordance with the Australian Charities and Not-for-profits Commission Act. Whether or not a particular benefit is charitable is dependent on the Charities Act 2013.

376.               Subclause 36(2) provides a general exception from the prohibition on discrimination for the provision of charitable benefits in accordance with a provision of a deed, will or other instrument.

377.               This exception is consistent with exceptions for instruments conferring charitable benefits in state and territory anti-discrimination Acts, particularly the Equal Opportunity Act 2010 (Vic) and the Equal Opportunity Act 1984 (WA).  

378.               Paragraph 36(2)(a) provides that the prohibition on discrimination on the ground of religious belief or activity in work (Division 2) and in other areas (Division 3) does not affect a provision of a deed, will or other instrument that confers charitable benefits, or allows such benefits to be conferred, on persons of a particular religious belief or activity. Paragraph 36(2)(b) clarifies that it is not unlawful to discriminate in giving effect to such a provision. For example, this Bill does not affect the ability of a charity to provide a housing service solely to people of a particular religious belief or activity in accordance with the terms of a trust.

379.               This provision ensures that this Bill does not affect the ability of persons to decide upon whom to confer a charitable benefit through a deed, will or other instrument, and does not affect the legal requirements of a body to administer and give effect to the terms of a will, trust, bequest or other document which requires charitable benefits to be conferred on people of a particular religious belief or activity.

380.               This provision is intended to apply to instruments made before, on, or after the commencement of this Bill.

Clause 37        Conduct in direct compliance with certain legislation etc.

381.               Clause 37 provides a general exception from the prohibition on discrimination for acts done in direct compliance with certain Commonwealth, state and territory legislation.

382.               This exception is broadly consistent with the existing exemptions in section 39 of the Age Discrimination Act, section 47 of the Disability Discrimination Act and section 40 of the Sex Discrimination Act.

Commonwealth legislation

383.               Subclause 37(1) relates to Commonwealth legislation. Subclause 37(1) provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity if the conduct constituting the discrimination is in direct compliance with a provision of a Commonwealth law, or instrument, which is not prescribed by the regulations.

384.               This provision addresses situations in which obligations that arise under this Bill may conflict with other laws or obligations and recognises that some public policy issues are for the Parliament to determine.

385.               Paragraph 37(1)(b) allows for the prescription of Commonwealth laws which would not be protected by this exception. This is a safeguard to ensure that laws under which it would not be appropriate to make decisions which may discriminate on the basis of religious belief or activity are not protected by this exception.

Law enforcement, national security and intelligence functions and powers

386.               Subclause 37(2) relates to law enforcement, national security and intelligence functions and powers. Subclause 37(2) provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity if:

a.             the person is performing a function or exercising a power relating to law enforcement, national security or intelligence under a law or program of the Commonwealth; and

b.             the conduct constituting the discrimination is reasonably necessary in performing the function or exercising the power.

387.               National security is defined in subclause 37(5) to have the meaning given by the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act). Section 8 of that Act defines national security to mean Australia’s defence, security, international relations or law enforcement interests, with security, international relations and law enforcement interests given the meaning by sections 9, 10 and 11 of the NSI Act respectively. In particular, section 9 of the NSI Act provides that security has the same meaning as in the Australian Security Intelligence Organisation Act 1979. Subclause 32(5) also clarifies that national security for the purposes of this Bill includes granting, revoking or denying Australian Government security clearances, within the meaning of the Criminal Code.

388.               The terms law enforcement and intelligence take their ordinary meaning. It is intended that together these three terms will encompass functions and powers that include policing, investigations, intelligence gathering (including defence intelligence) and security vetting.

389.               It is intended that this exception will apply to the performance of functions or exercise of powers by, or on behalf of, federal agencies including by the National Intelligence Community, the AFP, other agencies or parts of agencies which have such functions or powers, and state and territory agencies when exercising functions or powers under Commonwealth laws or programs.

390.               This exception is intended to ensure that nothing in this Bill will disrupt the lawful performance or exercise of functions and powers related to law enforcement, national security and intelligence. This will provide clarity that Australian law enforcement, security and intelligence bodies can continue to lawfully perform their powers and functions in circumstances where a person’s religious beliefs or activities may have a connection to law enforcement, national security or intelligence. This includes situations in which a person’s religious views, in the same way as their political or ideological views, may have relevance to security. Clause 10 of the Bill captures conduct done for two of more reasons, making conduct unlawful even if the person’s religious belief or activity was not the primary or dominant reason for the conduct.

391.               This exception only applies to the performance of powers or exercise of functions relating to law enforcement, national security or intelligence under a law or program of the Commonwealth.

392.               This exception also requires the discriminatory conduct be reasonably necessary in exercising those powers or performing the relevant functions. This is an objective standard and will require persons performing functions or exercising powers relating to law enforcement, national security or intelligence to consider whether any conduct which may constitute discrimination under this Bill is reasonably necessary in the performance of their functions or the exercise of their powers.

393.               An example of where a person’s religious beliefs or activities may be relevant is in the various stages of an investigation by the AFP into Commonwealth criminal activity that has a religious aspect, justification or motivation as an element of the offence. This is especially applicable for many of the Commonwealth terrorism offences, as the definition of terrorist act in section 100.1 of the Criminal Code includes action that is done, or a threat that is made ‘with the intention of advancing a political, religious or ideological cause’.

394.               A person’s religious beliefs or activities may also be relevant in various stages of an investigation by the AFP into other Commonwealth criminal offences where there is a religious motivation for committing the offence, even if religion does not feature in the elements of the offence. For example, this issue may arise in investigations into forced marriage or slavery.

395.               The exception in subclause 37(2) will ensure that otherwise lawful action undertaken by the AFP in the course of police powers and functions throughout an investigation will not constitute unlawful discrimination for the purposes of the Bill.

State and territory legislation

396.               Subclause 37(3) relates to state and territory legislation. Subclause 37(3) provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity if the relevant conduct was in direct compliance with a provision of a state or territory law which is not prescribed by the regulations.

397.               This provision reflects that this Bill does not generally intend to override or interfere with state or territory legislation. Conduct in direct compliance with state and territory laws, such as in policing, will not be unlawful under this Bill (though such conduct may be regulated through the anti‑discrimination legislation of that state or territory).

398.               This provision allows the Commonwealth to prescribe state or territory laws which would not be protected by this exception. This is a safeguard in the event that a state or territory passed a law which authorised or required discriminatory conduct. For example, if a state or territory passed a law which provided that all people of a particular religious belief or activity could not be educated in public schools, the Commonwealth could prescribe this legislation in the regulations and any conduct done in direct compliance with that legislation would be excluded from this exception and would therefore be unlawful.

399.               Subclause 37(4) clarifies that despite subsection 14(2) of the Legislation Act 2003 (Legislation Act), regulations made for the purposes of paragraph 37(3)(b) of this clause may prescribe state or territory provisions as in force at a particular time or as in force from time to time.

400.               Subsection 14(2) of the Legislation Act provides that legislative instruments may not apply, adopt or incorporate any matter contained in an instrument or other writing (which includes state or territory legislation) as in force or existing from time to time, unless a contrary intention appears. Subclause 32(4) is a standard provision to ensure that subsection 14(2) does not operate to prevent the regulations prescribing state or territory laws as in force or existing from time to time. The overriding of subsection 14(2) of the Legislation Act is necessary in order to provide flexibility in the way in which laws are prescribed by the regulations under this subclause.

401.               The Commonwealth, state and territory provisions that are prescribed by the regulations will be publicly accessible through relevant public legislation databases.

Clause 38        Orders, determinations and industrial instruments

402.               Clause 38 provides a general exception from the prohibition on discrimination for conduct in direct compliance with orders of courts or tribunals, determinations and industrial instruments.

403.               This provision addresses situations in which obligations that arise under this Bill may conflict with orders of courts or tribunals, determinations, awards and industrial instruments. This provision is necessary to ensure that this Bill does not undermine the proper functioning of Australia’s judicial and industrial relations systems.

404.               This exception is broadly consistent with the existing exemptions in section 39 of the Age Discrimination Act, section 47 of the Disability Discrimination Act and section 40 of the Sex Discrimination Act.

405.               Subclause 38(a) provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity if the relevant conduct was in direct compliance with an order of a Commonwealth, state or territory court or tribunal.

406.               Subclauses 38(b) and (c) provide that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity if the relevant conduct was in direct compliance with:

a.             an order, determination or award of a court or tribunal with the power to fix minimum wages or other employment terms and conditions (subclause 38(b))

b.             a fair work instrument, which includes a modern award, enterprise agreement, workplace determination or an order of the Fair Work Commission (paragraph 38(c)(i)); or

c.             a transitional instrument or Division 2B state instrument within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments Act 2009) (paragraph 38(c)(ii)).

407.               For example, it is not unlawful for an employer to require that all employees take the Christmas period off using annual leave for non-public holidays if this is specified in the relevant enterprise agreement.

408.               The Fair Work Act provides a separate statutory regime to ensure that terms of modern awards and enterprise agreements are not discriminatory (see section 153 and subsection 186(4) of the Fair Work Act). This includes terms which discriminate on the basis of religion.

409.               This exception does not leave individuals without a remedy if they are subject to discrimination which was in direct compliance with an industrial instrument. Individuals, groups and trade unions may lodge a complaint with the Commission alleging that a person has done a discriminatory act under an industrial instrument, which can then be referred to the Fair Work Commission (see section 46PW of the AHRC Act).

410.               A discriminatory act under an industrial instrument is defined as an act that would be unlawful under federal anti‑discrimination law, but for the fact the act was done in direct compliance with the industrial instrument. The necessary consequential amendments to extend this definition to acts which are unlawful under this Bill will be made by the Religious Discrimination (Consequential Amendments) Bill 2021.

Subdivision B—Specific exceptions relating to particular areas of public life

Clause 39        Exceptions relating to work

411.               Clause 39 provides specific exceptions from the prohibition on discrimination in work in Division 2 of Part 3.

Domestic duties

412.               Subclause 39(1) provides an exception from the prohibition of discrimination in employment in relation to domestic duties.

413.               Subclause 39(1) provides that it is not unlawful for a person to discriminate against a prospective employee on the ground of religious belief or activity in the arrangements made for the purpose of determining who should be offered employment, or in determining who should be offered employment, where that employment is to perform domestic duties at that person’s private place of residence. ‘Domestic duties’ for the purposes of this subclause may include core and capacity building supports provided to people with disability.

414.               This exception reflects the distinction between public life, where discrimination is prohibited, and private life, which is not regulated by this Bill. For example, it would not be unlawful for a person hiring a live-in nanny or in‑home carer services to require that the employee be of the same religious belief or activity as that person. This exception is consistent with the existing exemptions for domestic duties in subsection 18(3) of the Age Discrimination Act, subsection 15(3) of the Disability Discrimination Act and subsection 14(3) of the Sex Discrimination Act.

Inherent requirements

415.               Subclause 39(2) provides an exception in relation to the inherent requirements of the work. This reflects the existing exemptions in subsection 18(4) of the Age Discrimination Act, section 21A of the Disability Discrimination Act and section 30 of the Sex Discrimination Act.

416.               Subclause 39(2) provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity in employment or in a partnership if the other person is unable to carry out the inherent requirements of the employment or the partnership because of their religious belief or activity.

417.               This exception ensures that it is not unlawful to discriminate in work where a person is unable to carry out the essential requirements of a particular position because of their religious belief or activity. This may arise in circumstances where an individual’s religious belief or activity means they are unable to meet the inherent requirements of a particular position (allowing an employer to refuse employment on that basis). It may also arise where it is an inherent requirement of a specific position that an employee hold a particular religious belief (allowing an employer to discriminate in favour of people with that religious belief).

418.               In order for a particular requirement to constitute an inherent requirement, it must meet the high threshold set by the High Court. The High Court has held that whether certain requirements constitute inherent requirements of particular work depends on whether the requirements are ‘something essential’ to, or an ‘essential element’ of, the particular position. The High Court held that this question must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and by reference to the organisation (Qantas Airways Ltd v Christie (1998) 193 CLR 280).

419.               Whether a requirement constitutes an inherent requirement must be determined by reference to the particular position. It will not be sufficient for an employer to merely describe certain elements of a position as inherent requirements to establish that they are in fact inherent requirements for the purposes of this exception. As held in X v Commonwealth (1999) 200 CLR 177, an employer is not able to organise or define their business so as to permit discriminatory conduct. As such, an employer cannot simply declare that it is an inherent requirement for an employee or partner to hold, or not hold, a religious belief or engage, or not engage, in a religious activity, unless this was, objectively in the circumstances, an essential element of the particular position.

420.               The inherent requirements exception applies in relation to all work relationships covered by this Bill (being employees, which has an extended meaning under this Bill, and partners) and applies to the following work‑related activities:

a.             the arrangements made for determining who should be offered employment

b.             determining who should be offered employment or who should be invited to become a partner

c.             the terms or conditions on which employment is offered, or on which a person is invited to become a partner

d.             the terms or conditions of employment that the employer affords the employee

e.             determining who should be offered promotion or transfer; or

f.              dismissing the employee or expelling a partner.

421.               Subclause 39(3) clarifies that the exception does not apply in relation to denying or limiting an employee’s access to opportunities for training or any other benefits associated with employment, or a partner’s access to any benefit arising from being a partner, other than in determining who should be offered promotion or transfer. In addition, subclause 39(3) clarifies that the exception does not apply in relation to subjecting an employee or a partner to any other detriment.

422.               Accordingly, this exception extends not only to offers of employment, but also to other work‑related activities, such as dismissal and opportunities for promotion or transfer. The scope of this exception reflects the scope of the inherent requirements exemption in section 21A of the Disability Discrimination Act.

423.               The scope of this provision recognises that it is necessary to consider whether a person can carry out the inherent requirements of each particular position they may hold. A person’s ability to carry out the inherent requirements of their current position does not necessarily mean that they could carry out the inherent requirements of a promotion or transfer.

424.               In addition, the scope of this exception ensures that it is not unlawful to dismiss a person on the basis that, in the course of their work, they become unable to carry out the inherent requirements of the work. This recognises that religious belief or activity may change over an individual’s lifetime. As such, a person may be able to perform the inherent requirements of the work when they are first hired, but they may later convert to a different religious belief or start engaging in different religious activities which means that they can no longer perform the inherent requirements of the work.

425.               For example, if an employee who was hired by a defence company as a weapons engineer converted to become a Quaker and as such refused to manufacture any weaponry to be used in conflict, it would not be unlawful to dismiss that employee as they could no longer carry out the inherent requirements of the work.

426.               Subclause 39(4) provides that it is not unlawful for a qualifying body to discriminate against another person on the ground of religious belief or activity if the person is unable to carry out the inherent requirements of the profession, trade or occupation because of their religious belief or activity.

427.               For example, it would not be unlawful for a qualifying body to refuse to issue a certificate in meat processing to a Jain person who is vegetarian and cannot harm animals in accordance with the tenets of Jainism, as slaughter or butchery would be an inherent requirement of that occupation.

428.               Subclause 39(5) provides that it is not unlawful for an employment agency to discriminate against another person on the ground of religious belief or activity if the person is unable to carry out the inherent requirements of the work sought because of their religious belief or activity.

429.               For example, it would not unlawful for an employment agency to not interview a person for a position as a sommelier if that person does not drink alcohol in accordance with their religious belief.

Clause 40        Exceptions relating to accommodation and facilities

430.               Clause 40 provides specific exceptions from the prohibition on the provision of accommodation in clause 27.

Accommodation provider who is resident etc.

431.               Subclause 40(1) provides an exception in relation to share house situations where the accommodation provider, or their near relative, is resident.

432.               Subclause 40(1) provides that it is not unlawful under clause 27 for a person to discriminate against another person on the ground of religious belief or activity in the provision of accommodation if that person or their near relative lives, and intends to continue to live, on the relevant premises, and the accommodation is offered for no more than three other people.

433.               Subclause 5(1) defines near relative to include spouses or de facto partners of the accommodation provider, as well as parents, grandparents, children, grandchildren, siblings, including step-relations of all of these categories, and anyone who has any of those relationships to the spouse or de facto partner of the accommodation provider. The terms child, step‑child, de facto partner, parent and step‑parent are also defined in subclause 5(1).

434.               This exception reflects the distinction between public life, where discrimination is prohibited, and private life, which is not regulated by this Bill, and is consistent with the existing exemptions for share house situations in subsection 29(3) of the Age Discrimination Act, subsection 25(3) of the Disability Discrimination Act and subsection 23(3) of the Sex Discrimination Act.

435.               For example, it would not be unlawful for a homeowner seeking a tenant for their spare room to require that the tenant be of the same religious belief or activity as the homeowner. 

Religious camps and conference sites

436.               Subclauses 40(2) and (5) provide exceptions to the prohibition on discrimination on the basis of religious belief or activity in relation to conduct engaged in by religious camps and conference sites.

437.               These provisions recognise the longstanding and unique role of religious camps, such as youth camps, and conference sites, such as religious retreats, and that they are distinguished from other types of entities that provide accommodation to the general public.

438.               These provisions reflect the importance of ensuring that persons administering religious camps and conference sites are able to provide accommodation and access to other facilities in accordance with the religious beliefs underpinning that body, including by determining to whom and in what manner that accommodation is provided or whether other facilities are booked at all. This will ensure that such providers are not compelled to provide accommodation or access to other facilities in a manner inconsistent with the religious belief underpinning that body and are able to maintain the religious ethos of their facilities.

439.               These provisions are intended to be read alongside subclauses 9(3) and (5). Religious camps and conference sites will generally be providing accommodation within the scope of those provisions, and it is intended that they would be able to make faith‑based decisions both in respect of staffing and in respect of the provision of accommodation or other facilities.

440.               However, not all religious accommodation providers will constitute religious camps or conference sites for the purposes of these provisions. Thus, while religious retirement villages may be able to make staffing decisions to maintain a faith-based ethos amongst their staff in accordance with subclauses 9(3) and (5), they will not generally be able to refuse accommodation under these subclauses. This distinction recognises the unique cultural place of religious camps, but also recognises the interest in preserving access to services (particularly retirement villages) in remote and regional services, where there may be limited alternative options. 

441.               Persons administering religious camps and conference sites are unable to rely upon clause 7 (which provides that certain conduct engaged in by religious bodies does not constitute discrimination for the purposes of this Bill), as clause 8 specifically excludes conduct in the course of providing accommodation where the person solely or primarily provides accommodation. However, a body that provides accommodation services that are incidental or ancillary to its primary purpose or function would not be excluded from the operation of clause 7. 

442.               Subclause 40(2) provides that it is not unlawful for a religious camp or conference site to discriminate against another person on the ground of religious belief or activity in the provision of accommodation or other facilities by engaging in conduct in good faith that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of the religion, in accordance with a publicly available policy.

443.               Subclause 40(5) provides that is not unlawful for a religious camp or conference site to discriminate against another person on the ground of religious belief or activity in the provision of accommodation or other facilities by engaging in conduct to avoid injury to the religious susceptibilities of adherents of their religion, in accordance with a publicly available policy.

444.               Accordingly, subclauses 40(2) and (5) provide limited exceptions for these bodies to maintain their ethos through the provision of accommodation or other facilities, in conjunction with the exceptions in subclauses 9(4) and (6) which provide exceptions in relation to employment and partnerships for religious accommodation providers.

445.               In order to rely upon this exception, a person must establish that:

a.       The conduct is in the course of establishing, directing, controlling or administering a camp or conference site that provides accommodation and is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (paragraphs 40(2)(a) and (5)(a)); and

b.      they engaged in the relevant conduct in good faith (paragraphs 40(2)(b) and (5)(b)); and

c.       they engaged in conduct:

                                                              i.      that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion (paragraph 40(2)(c)); or

                                                            ii.      to avoid injury to the religious susceptibilities of adherents of the same religion as the person (paragraph 40(5)(c)); and

d.      the conduct is in accordance with a publicly available policy (paragraphs 40(2)(d) and (5)(d)).

446.               Paragraphs 40(2)(a) and (5)(a) limit the application of the exceptions to the provision of accommodation or other facilities by religious camps or conference sites. This is intended to capture accommodation facilities including outdoor education, holiday and educational camps, retreat facilities and conference and recreation centres. It is also intended to cover the use of other facilities that religious camps or conference sites might have available – for example, they may allow single day bookings for conference facilities without needing to also stay in the accommodation. The reference to ‘other facilities’ is intended to capture this incidental use of facilities and ensure that the religious camp or conference site that provides accommodation has the same ability to discriminate in permitting use of these facilities as it has in providing access to the accommodation services it provides.

447.               Paragraphs 40(2)(c) and (5)(c) provide that the relevant conduct must have been engaged in in good faith and must be conduct that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of the relevant religion or conduct to avoid injury to the religious susceptibilities of adherents of the same religion, respectively.

448.               For the purposes of these paragraphs, courts are not required to determine whether particular conduct is in accordance with the doctrines, tenets, beliefs or teachings of a particular religion, but rather whether members of that same religion would reasonably consider that to be so. In doing so, the courts may still have regard to foundational documents that a religious body considers supports the conduct under consideration, where those documents are used to demonstrate that particular religion’s doctrines, tenets, beliefs or teachings

449.               This reflects the tests in subclauses 7(2) and (4) for conduct engaged in by religious bodies. This will ensure that religious camps and conference sites must meet the same standard of conduct as religious bodies in order to not be captured by the prohibition of discrimination under this Bill in relation to the provision of accommodation.

450.               Subclause 40(4) clarifies that, without limiting subclause 40(2), the kinds of conduct covered by subclause 40(2) include the giving of a preference to a person of the same religion as the religious camp or conference site.

451.               Subclause 40(6) clarifies that, without limiting subclause 40(5), the kinds of conduct covered by subclause 40(5) include the giving of a preference to a person of the same religion as the religious camp or conference site.

452.               Subclauses 40(4) and (6) clarify that religious camps and conference sites may prefer, or give priority to, adherents of their religion through accommodation or other facility hire decisions. Subclauses 40(4) and (6) provide that it is not unlawful discrimination for religious camps and conference sites to engage in such conduct, where this is done in good faith, in accordance with the doctrines, tenets, beliefs or teachings of that religion or to avoid injury to the religious susceptibilities of adherents of the religious body, and is in accordance with a publicly available policy.

453.               This recognises that religious camps and conference sites often do not require that all persons seeking accommodation or other facilities be of their particular religious belief, but may nevertheless choose to give priority to adherents of their faith in order to maintain their religious ethos.

Publicly available policy requirement

454.               Paragraphs 40(2)(d) and (5)(d) provide that the conduct must be in accordance with a publicly available policy issued by the person.

455.               Considering the broader impact that this exception could have on the general community attempting to access accommodation and other facilities, this is an additional safeguard to ensure that this exception will only permit discrimination in circumstances where the accommodation provider has publicly articulated their policy on the provision of that accommodation or other facilities in accordance with their religious beliefs. This will increase certainty and transparency and ensure that the general public is able to ascertain and understand the position of that camp or conference site prior to seeking to access the accommodation or facilities.

456.               A policy must be available to a person seeking to access the accommodation or facilities. It may be issued publicly through a variety of means, such as being provided online at the point of booking.

Illustrative example of clause 40

457.               A Catholic holiday camp has a publicly available policy stating that non‑Christian groups are not permitted to hire out its accommodation or facilities. Per subclause 40(2) and (5), it would not be unlawful for that camp to refuse an application for accommodation by a non-Christian group, provided this was in good faith and in accordance with the doctrines, tenets, beliefs and teachings of Catholicism. However, if the camp accepted an application from a Protestant group but then restricted that group’s access to certain facilities, such as pools and kitchens, this conduct would not be covered by this exception as the conduct would not be in accordance with the camp’s publicly available policy.

Clause 41        Exception for disposal of land

458.               Clause 41 provides a specific exception from the prohibition on discrimination in the disposal of land for the disposal of land by wills and gifts. 

459.               Clause 41 provides that it is not unlawful for a person to discriminate against another person on the ground of religious belief or activity in relation to the disposal of an estate or interest in land by will or by gift. 

460.               This clause recognises that individuals are free to dispose of their land through private means in the manner in which they determine, as distinct from the disposal of land in the public marketplace. This exception is consistent with the existing exemptions for the disposal of land in subsection 30(2) of the Age Discrimination Act, subsection 26(2) of the Disability Discrimination Act and subsection 24(2) of the Sex Discrimination Act. For example, it would not be unlawful for a person to require that their beneficiary adhere to a particular religious belief in order to take ownership of the land.

Clause 42        Exception relating to clubs

461.               Clause 42 provides a specific exception from the prohibition on discrimination in the membership of clubs.

462.               Clause 42 provides that it is not unlawful to discriminate against a person on the ground of religious belief or activity in relation to the membership of a club, if membership of that club is restricted to persons who hold or engage in a particular religious belief or activity, and the person does not hold or engage in that religious belief or activity.

463.               This includes situations in which any class or type of membership is restricted to people of a particular religious belief or activity, such as voting membership.

464.               Boards of management are thus able to preference people of faith, even if their membership is not restricted to people of faith and if they are not a ‘religious body’ as defined by subclause 5(1).

465.               This provision is intended to operate alongside clause 7, which provides that certain conduct engaged in by religious bodies, which may include certain religious clubs, does not constitute discrimination. This provision ensures that it is not unlawful for clubs with membership based on religious criteria, but which may not constitute religious bodies for the purposes of clause 7 because they are not conducted in accordance with the doctrines, tenets, beliefs or teachings of the religion, to require members and potential members to be of that religious belief or activity.

466.               This recognises the significant and meaningful role that many religious clubs play in the community, including in providing support to members and promoting, advocating and protecting the interests of people in their particular religious group. This exception is consistent with the existing exemptions for clubs in subsection 27(4) of the Disability Discrimination Act and subsection 25(3) of the Sex Discrimination Act.

467.               For example, it would not be unlawful for a Shaolin Kung Fu club which requires all members to be Buddhist to refuse membership to a person who was not Buddhist.

Clause 43        Exception relating to voluntary bodies

468.               Clause 43 provides a specific exception from the prohibition on discrimination in relation to voluntary bodies.

469.               Subclause 5(1) defines a voluntary body as a not-for-profit association or other body (which may either be incorporated or unincorporated). Subclause 5(1) specifies that a voluntary body does not include a club, a statutory body established under Commonwealth state or territory legislation, or an association that provides grants, loans, credit or finance to its members.

470.               Consistent with other Commonwealth anti-discrimination laws, clubs and voluntary bodies are distinct concepts under this Bill. For example, as opposed to a voluntary body, a club must provide and maintain facilities, at least in part, from its own funds, and there is no requirement that a club be not‑for-profit.

471.               Subclause 43(2) provides that it is not unlawful for a voluntary body to discriminate against a person on the ground of religious belief or activity in relation to admission as a member of that body (paragraph 43(2)(a)), or in the provision of benefits, facilities or services to members of that body (paragraph 43(2)(b)). 

472.               Subclause 43(1) specifies that this exception solely applies to voluntary bodies whose membership is restricted to persons who hold or engage in a particular religious belief or activity.

473.               This provision is intended to operate alongside clause 7, which provides that certain conduct engaged in by religious bodies, which may include certain religious voluntary bodies, does not constitute discrimination. This provision ensures that it is not unlawful for voluntary bodies with membership based on religious criteria, but which may not constitute religious bodies for the purposes of clause 7 because they are not conducted in accordance with the doctrines, tenets, beliefs or teachings of the religion, to discriminate in the admission of members and the provision of benefits, facilities or services to members. For example, it would not be unlawful for a Jewish body to only provide certain services to Orthodox members.

474.               This exception does not extend to other possible acts of discrimination by voluntary bodies, such as in employment or in the provision of services to the public.

475.               This provision protects the right to freedom of assembly as it allows a voluntary organisation to choose its members, and provide benefits to those members. This exception is broadly consistent with the existing exemptions for voluntary bodies in section 36 of the Age Discrimination Act and section 39 of the Sex Discrimination Act.

Subdivision C—Exemptions granted by the Commission

Clause 44        Commission may grant exemptions

476.               Clause 44 provides that the Commission may grant temporary exemptions for conduct that would otherwise constitute unlawful discrimination under this Bill.

477.               Subclause 44(1) provides that the Commission may grant an exemption in respect of discrimination in work (Division 2) or discrimination in other areas, such as education or goods, services and facilities (Division 3).

478.               The Commission is currently able to grant temporary exemptions under the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act. These provisions provide flexibility and recognise that in particular circumstances, conduct which would otherwise be unlawful discrimination should be permitted on a temporary basis. This may include providing exemptions on a transitional basis, such as providing protection for organisations while they transition toward full compliance with this Bill, or addressing circumstances where considerable adjustments may need to be made.

479.               Subclause 44(1) specifies that the grant of a temporary exemption must be done by notifiable instrument. This requirement ensures that the community at large is aware of temporary exemptions granted by the Commission. It is intended that such an instrument would set out the findings of the Commission, refer to the evidence on which those findings are based, and detail the reasons for making the decision.

480.               Subclause 44(2) clarifies the content of a temporary exemption. In accordance with this subclause, the exemption must specify those covered by the exemption, the provisions of this Bill to which the exemption applies and the period for which the exemption is granted. Paragraph 44(2)(c) clarifies that the exemption must not be granted for a period of more than five years.

481.               Subclause 44(3) provides that the exemption may be granted subject to terms and conditions specified in the instrument and may apply only in relation to the circumstances or activities specified in the instrument. 

Clause 45        Applying for an exemption

482.               Clause 45 provides that a person or body, or a group of people or bodies, may apply to the Commission for the grant of a temporary exemption under clause 44.

483.               Subclause 45(2) provides that an application must be in a form approved by the Commission in writing. The Commission may vary this form at any time.

Clause 46        Effect of exemptions

484.               Clause 46 provides that conduct engaged in in accordance with a temporary exemption granted by the Commission under clause 44 is not unlawful under the relevant provisions of this Bill.

485.               Clause 46 clarifies that a temporary exemption applies to both the people or bodies covered by the exemption, as well as employees or persons under the direction or control of a person or body that is covered by the exemption. 

Clause 47        Variation and revocation of exemptions

486.               Clause 47 provides that the Commission or the Minister may vary or revoke a temporary exemption granted under clause 44.

487.               Subclause 47(1) specifies that the variation or revocation of a temporary exemption must be done by notifiable instrument. This requirement ensures that the community at large is aware of any amendments to existing temporary exemptions, or the revocation of temporary exemptions. It is intended that such an instrument detail the reasons for revoking or varying the exemption.

488.               Subclause 47(2) clarifies that the variation or revocation takes effect on the day specified in the notifiable instrument.

Clause 48        Review by Administrative Appeals Tribunal

489.               Clause 48 provides that a person affected by a decision under this subdivision may seek a review of that decision by the Administrative Appeals Tribunal.

490.               This clause provides that a person may make an application to the Administrative Appeals Tribunal for review of a decision by the Commission in relation to the grant of a temporary exemption under clause 44, or for review of a decision by the Commission or the Minister in relation to the variation or revocation of an existing temporary exemption under clause 47. 

PART 5—OFFENCES

491.               Part 5 of this Bill sets out the offences under this Bill, being victimisation of a person who takes action under this Bill and discriminatory advertisements.

492.               The offences established by this Part fall under the definition of ‘unlawful discrimination’ in section 3 of the AHRC Act and may therefore give rise to a complaint of unlawful discrimination to the Commission. The necessary consequential amendments to support the ability of the Commission to inquire into complaints of unlawful discrimination under this Bill will be made by the Religious Discrimination (Consequential Amendments) Bill 2021.

Clause 49        Unlawful conduct is not an offence unless expressly provided

493.               Clause 49 specifies that, except where expressly provided, nothing in this Bill makes it a criminal offence to engage in unlawful discrimination under Part 4.

494.               A person who is found to have engaged in unlawful discrimination under Part 4 will therefore not be criminally liable for such actions. This reflects the approach that the civil regime established by Part IIB of the AHRC Act is the appropriate mechanism to deal with matters that are unlawful under this Bill.

Clause 50        Victimisation

495.               Clause 50 makes it an offence to commit an act of victimisation.

496.               This clause is designed to ensure that people can safely use the complaints procedures established under the AHRC Act for discrimination on the ground of religious belief or activity, without being threatened or punished for doing so.

497.               This provision creates two separate offences; victimisation involving actual detriment and victimisation involving threat of detriment.

498.               Subclause 50(1) provides for the offence of victimisation involving actual detriment. This subclause makes it an offence for a person to engage in conduct which is intended to, and does, cause detriment to another person, because they believe that the person has taken, or proposes to take, some form of action under this Bill or the AHRC Act.

499.               Paragraph 50(1)(d) specifies that the action or proposed action undertaken by the second person includes making a complaint, commencing proceedings, giving information or producing documents, attending conferences, appearing as a witness, asserting rights under this Bill or the AHRC Act, or making an allegation that a person has engaged in unlawful conduct under this Bill.

500.               Subclause 50(2) provides for the offence of victimisation involving threat of detriment. This subclause makes it an offence for a person to threaten to cause detriment to another person because they believe that the person has taken, or proposes to take, some form of action under this Bill or the AHRC Act. Paragraph 50(2)(b) provides that the first person must have intended the second person to fear that the threat will be carried out or have been reckless as to causing the second person to fear that the threat will be carried out. The offence also applies in relation to a threat to cause detriment to a third person.

501.               Subclause 50(3) clarifies that a threat may be either express or implied or conditional or unconditional. Subclause 50(4) provides that it is not necessary to prove that the victim actually feared that the threat would be carried out.

502.               The concept of detriment is not defined under this Bill and is left intentionally broad to ensure that a definition does not unintentionally limit the actions to which these offences would apply. Conduct that may constitute detriment could, in relation to the work context, include dismissal, injury, alteration of position or duties, or discrimination. Outside of the work context, detriment may include harassment or intimidation, harm or injury (including psychological harm), or damage to a person’s property, reputation, business or financial position or any other damage.

503.               The penalty for both offences of victimisation is imprisonment for six months, 30 penalty units or both. This penalty is consistent with analogous offences under existing anti‑discrimination legislation.

504.               The notes under subclause 50(1) and (2) clarify that a civil complaint of victimisation can also be made to the Commission (pursuant to subsection 3(1) and section 46P of the AHRC Act). The necessary consequential amendments to ensure the Commission may inquire into and attempt to conciliate complaints of discrimination on the basis of religious belief or activity will be made by the Religious Discrimination (Consequential Amendments) Bill 2021.

Clause 51        Advertisements

505.               Clause 51 makes it an offence to publish or display discriminatory advertisements.

506.               Clause 51 provides that a person commits an offence if they publish or display an advertisement or notice which indicates, or could be reasonably understood to indicate, an intention to engage in unlawful discrimination on the ground of religious belief or activity. It is also an offence for a person to cause or permit such an advertisement or notice to be published or displayed.

507.               For example, advertisements indicating that Sikh people would only be eligible for a position at a reduced rate of pay, would indicate an intention to engage in unlawful conduct.

508.               Examples of an advertisement that is published or displayed may include newspaper, television or radio advertisements or the display of notices or signs. It is intended that the publication or display of an advertisement for the purposes of this provision is not limited to advertisements which are displayed to the public.

509.               It is not an offence under this Bill for an employer to advertise an intention to employ persons on a basis that would not be unlawful under Part 3 of the Bill, because, for example, the employment would fall within an exception. For example, it would not be an offence for a business to advertise that applicants for chaplaincy positions be of a particular religious belief if being of that religious belief was an inherent requirement of the job, as this would not constitute unlawful discrimination under subclause 39(2).

510.               Similarly, this provision does not make it an offence to advertise an intention to engage in conduct which is not discrimination for the purposes of this Bill, and is therefore not unlawful under Part 3. For example, it would not be an offence for a church to advertise a position requiring applicants to be of their particular faith, as this conduct would be covered by this Bill by virtue of clause 7. In addition, it would not be an offence for a person to publish or display advertisements which relate to beneficial measures under clause 10.

511.               The penalty for this offence is 10 penalty units. This penalty is consistent with analogous offences under existing anti‑discrimination legislation.

512.               The note under subclause 51(b) clarifies that a civil complaint regarding conduct that is unlawful under this clause can also be made to the Commission (pursuant to subsection 3(1) and section 46P of the AHRC Act). The necessary consequential amendments to ensure the Commission may inquire into and attempt to conciliate complaints of discrimination on the basis of religious belief or activity will be made by the Religious Discrimination (Consequential Amendments Bill) 2021.

PART 6—RELIGION DISCRIMINATION COMMISSIONER

513.               Part 6 of this Bill establishes the office of the Religious Discrimination Commissioner.

514.               This implements recommendation 19 of the Religious Freedom Review, which recommended that the Commission take a leading role in the protection of religious discrimination, including through enhancing engagement, understanding and dialogue.

515.               This Part is based on equivalent provisions governing the offices of the Age Discrimination Commissioner (Part 6A of the Age Discrimination Act), the Disability Discrimination Commissioner (Part 6 of the Disability Discrimination Act), the Race Discrimination Commissioner (Part VI of the Racial Discrimination Act) and the Sex Discrimination Commissioner (Part V of the Sex Discrimination Act). The provisions in this Part are also consistent with, and operate in conjunction with, the administrative provisions governing all members of the Commission in Part II, Division 5 of the AHRC Act.

516.               The Religious Discrimination Commissioner will be a member of the Commission. The necessary consequential amendments to support the establishment of the Religious Discrimination Commissioner as a member of the Commission will be made by the Religious Discrimination (Consequential Amendments) Bill 2021.

Clause 52        The Religious Discrimination Commissioner

517.               Clause 52 establishes the office of the Religious Discrimination Commissioner.

518.               Subclause 52(1) provides that there is to be a Religious Discrimination Commissioner.

519.               Subclauses 52(2) and (3) provide that the Commissioner is to be appointed by the Governor-General on either a full-time or part-time basis. In accordance with section 33AA of the Acts Interpretation Act, the Commissioner is eligible for reappointment.

520.               Subclause 52(4) specifies that a person can only be appointed as Commissioner if the Minister is satisfied that the person has appropriate qualifications, knowledge or experience. This reflects the qualification requirements for the four existing anti‑discrimination Commissioners, the Human Rights Commissioner and the National Children’s Commissioner.

521.               The qualification requirements in subclause 52(4) do not require the Religious Discrimination Commissioner to hold any religious beliefs or to engage in any religious activities. There is no requirement that the Commissioner be a representative of a major faith group. Rather, it is intended that the Commissioner be able to represent all those who may face discrimination on the basis of religious belief or activity under this Bill, including smaller and emerging faith groups, and those who do not hold religious beliefs. Accordingly, this provision does not set a religious test for the office of the Religious Discrimination Commissioner.

Clause 53        Term of appointment

522.               Clause 53 provides that the Religious Discrimination Commissioner holds office for the period specified in the instrument of appointment, which must not exceed seven years.

Clause 54        Remuneration of Commissioner

523.               Clause 54 provides that the Religious Discrimination Commissioner is to be paid remuneration by the Commonwealth as determined by the Remuneration Tribunal.

524.               Subclause 54(1) clarifies that in the event that no such determination exists in respect of the position, the Commissioner is to be paid by the Commonwealth the amount set out in the regulations.

525.               Subclause 54(2) specifies that the Commissioner is to be paid by the Commonwealth any allowances as set out in the regulations. This provision is included for consistency with existing anti‑discrimination law, although in practice, the Remuneration Tribunal sets allowances for statutory office holders, such as reunion allowances.

526.               Subclause 54(3) provides that certain subsections of the Remuneration Tribunal Act 1973 (Remuneration Tribunal Act) do not apply in relation to the office of the Commissioner. It is standard practice for remuneration of certain Commonwealth officers to be determined by the Remuneration Tribunal. It is the Tribunal’s role to determine, report on or provide advice about remuneration, including allowances and entitlements. This will continue to be the case for the Commissioner. However, by dis-applying subsections 7(9) and (13) of the Remuneration Tribunal Act, this subclause will have the effect that the remuneration or allowances of the Commissioner so determined will be paid out of money appropriated by another Act, rather than under the standing appropriation provided for in the Remuneration Tribunal Act.

527.               Subclause 54(4) specifies that this provision has effect subject to the Remuneration Tribunal Act, except as provided by subsection 54(3), given that subclause 54(3)
dis-applies certain provisions of that Act.

Clause 55        Leave of absence

528.               Clause 55 specifies the leave entitlements of the Religious Discrimination Commissioner.

529.               For full-time office holders, subclause 55(1) specifies that the Commissioner has the recreation leave entitlements determined by the Remuneration Tribunal. In addition, the Minister may grant the Commissioner other leave of absence. Such additional leave of absence is on the terms and conditions as determined by the Minister, including as to remuneration.

530.               For part-time office holders, subclause 55(2) specifies that the Minister may grant leave of absence to the Commissioner. Such leave of absence is on the terms and conditions as determined by the Minister. 

Clause 56        Outside employment

531.               Clause 56 specifies the obligations of the Religious Discrimination Commissioner in respect of outside employment.

532.               For full-time office holders, subclause 56(1) specifies that the Commissioner must not engage in paid work outside the duties of their office without the approval of the Minister. Paid work is defined by subclause 5(1) to mean any work for financial gain or reward. For part-time office holders, subclause 56(2) specifies that the Commissioner must not engage in paid work which, in the opinion of the Minister, conflicts with the proper performance of the Commissioner’s duties.

533.               This provision ensures that any outside work carried out by the Commissioner does not conflict with their statutory duties. This includes employment that would give rise to a conflict of interest or that would unduly impinge on their capacity to undertake their role as Commissioner. The distinction in the obligations between a full-time office holder and a part-time office holder reflects the principle that a part-time Commissioner should only be restricted in their ability to undertake paid work outside of the duties of their statutory office if such work would conflict with the performance of their duties.

534.               If a Commissioner does engage in outside paid work in contravention of clause 56, clause 59 provides that the Governor-General must terminate the Commissioner’s appointment.

Clause 57        Other terms and conditions of employment

535.               Clause 57 provides that to the extent that the terms and conditions of the office of the Religious Discrimination Commissioner are not covered by this Bill, the Religious Discrimination Commissioner holds office on the terms and conditions determined by the Governor‑General.

Clause 58        Resignation

536.               Clause 58 provides that the Religious Discrimination Commissioner may resign their appointment by tendering a written resignation to the Governor-General. Such a resignation takes effect on the date the resignation is received by the
Governor-General, or if specified, a later day.

Clause 59        Termination

537.               Clause 59 empowers the Governor-General to terminate the appointment of the Religious Discrimination Commissioner in certain circumstances.

538.               Subclause 59(1) provides for discretionary grounds of termination related to misbehaviour (paragraph 59(1)(a)) or where the Commissioner is unable to perform the duties of their office due to physical or mental incapacity (paragraph 59(1)(b)). Paragraph 59(1)(b) is intended only to apply where there are no reasonable adjustments that could be made to enable the member to meet the inherent requirements of the office.

539.               Subclause 59(2) provides for mandatory grounds of termination. Accordingly, the Governor‑General must terminate the Commissioner’s appointment if the Commissioner:

a.    becomes bankrupt or takes certain steps in relation to insolvency or bankruptcy (paragraph 59(2)(a))

b.    is absent from duty for a specified period of time, depending on whether they are appointed on a full-time or part-time basis (paragraphs 59(2)(b) and (d)); or

c.    engages in paid outside work without the necessary approvals specified in clause 56 (paragraphs 59(2)(c) and (e)).

Clause 60        Acting Commissioner

540.               Clause 60 provides for the appointment of an acting Religious Discrimination Commissioner.

541.               Subclause 60(1) provides that during a vacancy in the office, or periods where the ordinary office holder is absent from duty, overseas, or for any reason unable to perform the functions of the office of the Religious Discrimination Commissioner, the Minister may appoint a person to act as Commissioner. Such an appointment must be by written instrument.

542.               The note under subclause 60(1) clarifies that the rules applying to acting appointments as specified in sections 33AB and 33A of the Acts Interpretation Act apply to acting appointments made under this provision.

543.               Subclause 60(2) provides that the same qualification requirement for a substantive appointment as Religious Discrimination Commissioner (as specified in clause 52) applies to an acting appointment.

PART 7—FUNCTIONS OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION

544.               Part 7 of this Bill sets out the functions conferred on the Commission by this Bill.

545.               This Part reflects analogous provisions in existing anti‑discrimination law, including Part 6 of the Age Discrimination Act, Part 4 of the Disability Discrimination Act, Part III of the Racial Discrimination Act and Part III of the Sex Discrimination Act.

Clause 61        Functions of the Commission

546.               Clause 61 confers functions related to discrimination on the basis of religious belief or activity under this Bill on the Commission. These functions include:

a.       granting temporary exemptions under clause 39 (subclause 61(a))

b.      promoting understanding, acceptance of and compliance with the Bill (subclause 61(b))

c.       undertaking research and educational programs (subclause 61(c))

d.      reporting to the Minister on policy and legislative development related to discrimination on the basis of religious belief or activity (subclauses 61(d)‑(g))

e.       preparing guidelines for avoiding discrimination on the basis of religious belief or activity (subclause 61(h)); and

f.        intervening in court proceedings (subclause 61(i)). 

547.               Subclause 61(i) provides that the Commission may do anything incidental or conducive to the performance of any of the above functions.

548.               These functions are conferred on the Commission, rather than the Religious Discrimination Commissioner. This reflects the approach in existing
anti-discrimination legislation. The Commission may delegate such functions to the Commissioner as it sees appropriate, in accordance with clause 69.

549.               Clause 61 does not confer functions on the Commission related to complaints handling. The Commission’s function of inquiring into and attempting to conciliate complaints of unlawful discrimination is provided in Part IIB of the AHRC Act. The necessary consequential amendments to ensure the Commission may inquire into and attempt to conciliate complaints of discrimination on the basis of religious belief or activity will be made by the Religious Discrimination (Consequential Amendments) Bill 2021.

PART 8—APPLICATION AND CONSTITUTIONAL PROVISIONS

550.               Part 8 of this Bill sets out provisions which relate to the application of this Bill, and clarifies the constitutional basis for this Bill.

551.               This Part also includes provisions which clarify the interaction between this Bill and state and territory anti­â€‘discrimination laws. 

552.               This Part reflects analogous provisions in existing anti‑discrimination law, including in Part 2 of the Age Discrimination Act, Part 1 of the Disability Discrimination Act and Part I of the Sex Discrimination Act.

Clause 62        This Act binds the Crown

553.               Clause 62 provides that this Bill binds the Crown in each of its capacities but does not make the Crown liable to be prosecuted for an offence.

554.               Accordingly, this Bill binds the executive governments of the Commonwealth, of each of the states, of the Australian Capital Territory and of the Northern Territory. This is consistent with existing anti‑discrimination law.

555.               For example, a government employee is entitled to make a complaint under this Bill concerning discrimination on the basis of religious belief or activity engaged in by the government department in which they are employed.

Clause 63        Geographical application of this Act

556.               Clause 63 provides that this Bill applies throughout Australia.

557.               Subclause 5(1) defines Australia to include all of the external territories.

558.               This clause ensures that this Bill would apply to all states, all internal territories and all external territories of Australia.

559.               In addition, subclause 63(2) provides that this Bill would apply to conduct engaged in in Australia, even where such conduct involves people, things or matters outside of Australia.

Clause 64        Constitutional basis of this Act

560.               Clause 64 specifies that this Bill gives effect to Australia’s obligations under the:

a.       ICCPR

b.      International Covenant on Economic, Social and Cultural Rights

c.       Convention on the Rights of the Child

d.      International Convention on the Elimination of All Forms of Racial Discrimination

e.       ILO Convention concerning Discrimination in respect of Employment and Occupation (No.111); and

f.        ILO Convention concerning Termination of Employment at the Initiative of the Employer (No. 158).

561.               This provision clarifies that the external affairs power is the main constitutional basis for this Bill. This recognises the important role of the Bill in implementing Australia’s international law obligations.

Clause 65        Additional operation of this Act

562.               Clause 65 provides for additional constitutional bases of this Bill, aside from the external affairs power as provided in clause 64.

563.               Subclause 65(1) provides that, in addition to clause 60 which refers to the external affairs power, the Bill has effect to the extent directly supported by a number of other constitutional heads of power.

564.               All Commonwealth anti-discrimination legislation relies on a range of constitutional powers to apply to the maximum extent possible throughout Australia.

565.               Subclause 65(2) relies on the corporations power to extend the Bill to the conduct of corporations and their officers, employees or agents (paragraphs 65(2)(a) and (b)), as well as conduct towards officers, employees or agents of corporations (paragraph 65(2)(c)), where the conduct is connected with the person’s duties as an officer, employee or agent of the corporation.

566.               Subclause 65(3) relies on the Commonwealth and territory matters power to extend the Bill to the conduct of the Commonwealth, a territory, or a covered authority (as defined by subclause 65(4)), and their officers, employees or agents, where the conduct is connected with the person’s duties as an officer, employee or agent (paragraphs 65(3)(a) and (b)). Subclause 65(3) also extends the Bill to conduct towards officers, employees or agents of the Commonwealth, a territory or a covered authority, where the conduct is connected with the person’s duties as an officer, employee or agent (paragraph 65(3)(c)). Subclause 65(3) also extends to conduct occurring in the course of the performance of a function or exercise of a power under a Commonwealth or territory law and to conduct that is engaged in within a territory (paragraphs 65(3)(d) and (e)).

567.               Subclause 65(5) relies on the trade or commerce power to extend the Bill to conduct engaged in while the discriminator or the person subjected to discrimination is acting in the course of, or in relation to, trade or commerce between Australia and places outside Australia, among the states, between a state and a territory or between two territories.

568.               Subclause 65(6) relies on the banking and insurance power to extend the Bill to conduct engaged in while the discriminator or the person subjected to discrimination is acting in the course of, or in relation to, the carrying on of the business of banking or the business of insurance, other than state banking or insurance (within the meaning of paragraphs 51(xiii) and (xiv) of the Constitution respectively) and not extending beyond the limits of the state concerned.

569.               Subclause 65(7) relies on the telecommunications power to extend the Bill to conduct engaged in by a person by means of a postal, telegraphic, telephonic or other like service, within the meaning of paragraph 51(v) of the Constitution.

570.               Subclause 65(8) relies on the defence power to extend the Bill to conduct engaged in by a person for purposes relating to the defence of Australia.

Clause 66        Limited application provisions

571.               Clause 66 clarifies the conduct of provisions with limited application under this Bill, namely subclauses 7(5), 7(7), 9(5), 9(7), 40(4) and 40(7) as provided for at subclause 66(1).

572.               Paragraph 66(1)(a) provides that the sections outlined at subclause 66(1) apply in relation to conduct engaged by a corporation applying to paragraph 51(xx) of the Constitution.

573.               Paragraph 66(1)(b) provides that the sections outlined at subclause 64(1) apply in relation to certain conduct engaged in by a person during trade or commerce between Australia and places outside Australia (subclause (66(1)(b)(i)) or between the States and Territories (subclauses 66(b)(ii) to (iv)).

574.               Paragraph 66(1)(c) provides that the sections outlined at subclause 66(1) apply in relation to conduct of a body corporate that is incorporated in a Territory.

575.               Paragraph 66(1)(d) provides that the sections outlined at subclause 66(1) apply in relation to conduct engaged in by a body corporate taken as registered in a Territory under section 119A of the Corporations Act 2001.

576.               Paragraph 66(1)(e) provides that the sections outlined at subclause 66(1) apply in relation to conduct engaged in in a Territory.

577.               Paragraph 66(1)(f) provides that the sections outlined at subclause 66(1) apply in relation to conduct engaged in within the meaning of paragraph 51(v) of the Constitution, namely postal, telegraphic, telephonic or other like services.

578.               Paragraph 66(2) clarifies the application of this clause despite the application of clauses 64 and 65 relating to the Constitutional basis and additional operations of this Bill.

Clause 67        Compensation for acquisition of property

375.               Clause 67 ensures that property is acquired on just terms.

376.               Subclause 67(1) provides that if the operation of this Bill would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation. This is designed to ensure that this Bill does not interfere with a person’s property rights in a way that contravenes paragraph 51(xxxi) of the Constitution.

377.               Subclause 67(2) confers jurisdiction on the Federal Court of Australia or the Supreme Court of a state or territory to determine the amount of compensation necessary to ensure that the acquisition takes place on just terms.

Clause 68        Relationship with State and Territory laws

579.               Clause 68 addresses the relationship between this Bill and state and territory laws.

580.               As a general proposition, it is not intended that this Bill cover the field and override state and territory legislation. Accordingly, subclause 68(1) provides that this Bill is not intended to exclude or limit the operation of a state or territory law, to the extent that the law is capable of operating concurrently with this Bill.

581.               However, the note under subclause 68(1) clarifies that nothing in this subclause detracts from the operation of Part 4. Part 4 operates to create a federal exception to certain complaints under state and territory anti-discrimination law concerning a statement of belief, despite this clause. 

582.               Subclause 68(2) provides that where a person has made a complaint or instituted a proceeding under a state or territory anti‑discrimination law, they are not entitled to make a complaint to the Commission alleging discrimination under this Bill in relation to the same conduct.

583.               This requires complainants to choose the appropriate forum for an anti‑discrimination complaint by prohibiting complaints relating to the same conduct from being brought under this Bill as well as relevant state and territory legislation.

584.               Subclauses 68(3) and (4) provides that a person may be prosecuted and convicted for an offence relating to particular conduct under this Bill or a state or territory anti‑discrimination law, but cannot be punished more than once in respect of the same conduct.

PART 9—OTHER MATTERS

585.               Part 9 of this Bill sets out provisions which aid the general operation of this Bill.

586.               This includes provisions to assist the Commission in the performance of its functions, such as the power to delegate certain powers or functions (clause 69) and the protection of the Commission from civil actions (clause 70). This Part also includes provisions which extend liability for unlawful conduct to other persons, including to persons who are involved in unlawful conduct (clause 71) and to bodies corporate, bodies politic and individuals for the conduct of their representatives (clause 72).

587.               This Part reflects analogous provisions in existing anti‑discrimination law, including Part 7 of the Age Discrimination Act, Part 7 of the Disability Discrimination Act and Part VI of the Sex Discrimination Act.

Clause 69        Delegation

588.               Clause 69 provides the Commission with a broad ability to delegate its functions or powers under this Bill.

589.               Subclause 69(1) provides that the Commission may delegate all or any of its functions or powers under this Bill to:

a.             the Religious Discrimination Commissioner

b.             the President or any of the other special-purpose Commissioners

c.             a member of the staff of the Commission; or

d.             any other person or bodies of persons.

590.               Subclause 69(2) provides that the Religious Discrimination Commissioner may delegate all or any of the Commissioner’s functions or powers under this Bill to an approved member of the staff of the Commission or any other approved person or body of persons.

591.               This broad power of delegation is necessary to enable the Commission to carry out the wide range of functions conferred on it by this Bill. This broad power also recognises that in certain circumstances, the Commission may consider it necessary to delegate to a person or body external to the Commission, such as a barrister, certain functions, such as in relation to the grant of exemptions or the preparation of reports, where there may be a conflict of interest with the Commission. This power is consistent with delegation powers in existing federal anti‑discrimination legislation and in the AHRC Act.

592.               Delegations under subclauses 69(1) and (2) must be in writing. Subclause 69(3) specifies that the delegate must comply with any written directions of the delegator in exercising the delegation.

593.               The note under subclause 69(1) clarifies that the provisions in sections 34AA to 34A of the Acts Interpretation Act relating to delegations apply to delegations under this clause.

Clause 70        Liability of persons involved in unlawful conduct

594.               Clause 70 provides that a person who engages in conduct ancillary to unlawful discrimination is also taken to have engaged in that unlawful discrimination.

595.               Subclause 70(1)provides that a person must not:

a.             attempt to engage in unlawful discrimination

b.             aid, abet, counsel or procure unlawful discrimination

c.             induce unlawful discrimination

d.             be in any way knowingly concerned in, or party to, unlawful discrimination; or

e.             conspire with others to engage in, or effect, unlawful discrimination.

596.               Subclause 70(2) provides that a person who engages in the conduct in
subclause 70(1) is taken to have engaged in unlawful discrimination for the purposes of this Bill. 

597.               The effect of this provision is that a complaint of unlawful discrimination can be made against the person who engaged in the ancillary conduct, as well as the person who actually did the unlawful act.

598.               This provision is necessary to ensure a person is not able avoid liability for promoting or encouraging discriminatory conduct, despite not actually carrying out that conduct themselves.

599.               This clause is consistent with the ancillaryconduct provisions in section 92 of the Regulatory Powers (Standard Provisions) Act 2014.

Clause 71        Conduct by representatives

600.               Clause 71 provides that individuals, bodies corporate and bodies politic may be liable for conduct amounting to unlawful discrimination done by their representatives.

601.               This provision balances incentives for businesses to take reasonable measures to avoid unlawful conduct by directors, employees and agents with appropriate recourse for people who have suffered discrimination on the basis of religious belief or activity.

602.               Subclause 71(1) provides that a person is taken to have engaged in conduct by their representative acting on their behalf within the scope of their actual or apparent authority. Representative is defined in subclause 71(4) as a director, employee or agent of a body corporate, or an employee or agent of a body politic or individual.

603.               Subclause 71(2) specifies that where it is necessary to establish the state of mind of a person in relation to conduct engaged in by a representative, it is sufficient to establish that the representative engaged in the conduct within the scope of their actual or apparent authority, and had the relevant state of mind. Accordingly, it is not necessary to demonstrate that a body corporate, for example, had a particular state of mind in relation to discriminatory conduct engaged in by an employee.

604.               Subclause 71(3) provides that a reference to state of mind in subclause 71(2) includes a reference to the representative’s knowledge, intention, opinion, belief or purpose, or the reasons for the intention, opinion, belief or purpose.

605.               However, subclause 71(1) provides an exception where a person is able to establish they took reasonable precautions and exercised due diligence to avoid the discriminatory conduct.

606.               For example, it may be a reasonable precaution for a company to make and enforce workplace policies prohibiting discriminatory conduct and to regularly train staff on their responsibilities. Due diligence may include regularly reviewing this policy and its effectiveness, and ensuring staff members comply with this policy.

607.               Subclause 71(5) provides that this clause does not apply to proceedings for an offence against Part 5 of this Bill.

608.               Part 2.5 of the Criminal Code applies to Commonwealth offences and sets out the rules governing when criminal responsibility can be attributed to a body corporate, based on the conduct of directors and employees and the surrounding circumstances. It is intended that Part 2.5 of the Criminal Code will continue to apply in relation to liability for bodies corporate under Part 5 of this Bill. It is not intended that subclause 71(5) would displace that Part’s application.

609.               The offences of victimisation and discriminatory advertisements under clauses 50 and 51 of this Bill respectively may be pursued civilly or criminally. Where a complaint is pursued civilly through the Commission, clause 71 applies in relation to liability of bodies corporate, bodies politic and individuals. 

Clause 72        Protection from civil actions

610.               Clause 72 provides protection from civil liability for the Commission and Commission officials for conduct engaged in in good faith in the performance or exercise of the Commission’s function or powers.

611.               Subclauses 72(1) and (2) provide that a person may not take civil action against the Commission, the Religious Discrimination Commissioner or any other member of the Commission, or a person acting on behalf of the Commission or a member of the Commission for, or in relation to, conduct engaged in in good faith in the performance of functions or exercise of powers conferred on the Commission by this Bill. This includes the purported performance of functions and the purported exercise of powers.

612.               Subclauses 72(3) and (4) provides that there is no right of action created where someone has suffered loss, damage or injury if the only reason they suffered such loss, damage or injury was due to the making of a submission or the giving of a document, information or evidence to the Commission or a person acting on behalf of the Commission.

613.               Subclause 72(5) specifies that this provision is subject to clause 67 which concerns the acquisition of property on just terms.

Clause 73        No right of action unless expressly provided

614.               Clause 73 specifies that, except where expressly provided, a person does not have a right of action in relation to unlawful discrimination or conduct that is an offence against a provision of this Bill.

615.               The AHRC Act provides the mechanism for dealing with matters that are unlawful under this Bill. It is not intended that rights created under this Bill give rise to separate civil actions in the courts.

616.               The effect of this provision is that the only action available in relation to unlawful discrimination, or the offences under Part 5, is a complaint under the AHRC Act or the criminal prosecution of the victimisation or discriminatory advertisements offences.

Clause 74        Non-disclosure of protected information

617.               Clause 74 makes it an offence for certain Commission officials, and their delegates, to disclose protected information. 

618.               This clause is designed to ensure the confidentiality of personal information provided to the Commission by prohibiting the disclosure of such information by Commission officials. This protects the privacy of individuals who make, or who are the subject of, complaints to the Commission and ensures that the complaints handling process is safe for individuals making complaints regarding sensitive personal matters. 

619.               Clause 74 prohibits a person who is, or at any time has been, an entrusted person from disclosing protected information if such information was acquired in their capacity as an entrusted person.

620.               Protected information is defined by subclause 74(4) to mean information that is obtained by an entrusted person under or for the purposes of this Bill that relates to the affairs of another person. An entrusted person is defined by subclause 74(4) to mean the Religious Discrimination Commissioner, another member of the Commission, a member of staff of the Commission or a delegate of the Commission or of the Commissioner.

621.               The penalty for this offence is imprisonment for two years. This penalty is consistent with analogous offences under existing anti‑discrimination legislation.

622.               Subclause 74(2) provides exceptions to the general prohibition in subclause 74(1). Paragraph 74(2)(a) provides that protected information may be disclosed if it is authorised by a Commonwealth, state or territory law. In addition,
paragraph 74(2)(b) provides that protected information may be disclosed in the performance of functions or exercise of powers under or in connection with this Bill or in accordance with an intergovernmental arrangement between the Commonwealth and a state body under section 16 of the AHRC Act. The note under subclause 74(2) clarifies that a defendant bears an evidential burden in relation to a matter in this subclause.

623.               Subclause 74(3) provides that a court must not require a person to disclose protected information or produce documents containing protected information that the person has acquired, has custody of or has access to in their capacity as an entrusted person, unless it is necessary to do so for the purposes of this Bill. This provision is necessary to maintain the integrity of the complaints process and ensure that persons performing or exercising functions or powers under this Bill are not compelled to disclose sensitive personal information concerning complainants or respondents except in relation to this Bill.

624.               Subclause 74(4) defines the terms court, entrusted person, produce and protected information for the purposes of this provision.

Clause 75        Commissioner to give information to the Commission

625.               Clause 75 provides that the Religious Discrimination Commissioner is required to give the Commission any information it requires in relation to the Commissioner’s operations.

Clause 76        Review of operation of Act

626.               Subclause 76(1) provides that the Religious Discrimination Commissioner must conduct a review of the operation of the Bill no later than two years after commencement.

627.               Subclauses 76(2) and (3) provides that the Religious Discrimination Commissioner must give the Minister a written report of the review and the Minister must table the report in Parliament within 15 sittings days of receiving it.

Clause 77        Regulations

628.               Clause 77 provides that the Governor-General may make regulations prescribing matters required or permitted by this Bill to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Bill.

 

 



[1] Religious Freedom Review: Report of the Expert Panel (2018), page 95.

[2] See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and IW v City of Perth (1997) HCA 30.

[3] Koowarta v Bjelke-Petersen(1982) 153 CLR 168, 7.

[4] See Australian Human Rights Commission, Federal Discrimination Law (2016), 157 – 161.

[5] See Walker v Cormack (2011) 196 FCR 574; Walker v State of Victoria [2012] FCAFC 38; Chen v Monash University [2016] FCAFC 66.