In response to the current debate around the protection of religious freedoms, the federal Government released a suite of legislative reforms for public consultation recently. The reforms were made up of three Bills:
- The Religious Discrimination Bill 2019,
- The Religious Discrimination (Consequential Amendments) Bill 2019, and
- The Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 (the Reforms).
Politicians, the media and advocacy groups have all added their voice to the chorus of responses – but what would the actual impact of the Reforms be on organisations?
We’ve summarised the Reforms, as well as provided some key takeaways for organisations and not-for-profits.
Summary of the Reforms
The Reforms (if passed) will introduce the Religious Discrimination Act 2019, which will make it unlawful to discriminate on the ground of religious belief or activity in certain areas of “public life”. The proposed legislation mirrors federal discrimination laws in relation to age, sex, disability and race. In doing so, it misses an important opportunity to modernise the patchwork scheme of discrimination laws, which developed in a piecemeal manner over a 45 year period. The result is an overly complex mix of laws that are difficult to use and have unnecessary differences in definitions and coverage between them. This makes it harder for organisations to take measures to comply with the laws, and harder for people who have been discriminated against to receive access to justice.
Discrimination on the grounds of religious belief or activity is broadly defined. It includes protection from direct discrimination (treating someone differently because of the belief or activity) and indirect discrimination (imposing unreasonable conditions, requirements or practices that have the effect of disadvantaging people who engage in certain religious beliefs or activity).
Under the Reforms, treatment of indirect discrimination for large employers (turnover of over $50 million) is contentious – it states that large organisations have to show employee conduct rules that discriminate against religious beliefs will not be “reasonable” unless compliance is necessary to avoid “unjustifiable financial hardship” to the employer.
This is arguably a response to the Israel Folau case, where he has launched court proceedings against Rugby Australia for an unfair dismissal claim. In Folau’s case, Rugby Australia would have to demonstrate that they would suffer “unjustifiable financial hardship” as a result of Folau’s conduct, which was arguably a breach of their social media policy.
The Reforms will make it unlawful to discriminate on the grounds of religious belief or activity in relation to certain areas of public life, relevantly:
- Access to premises that the public or a section of the public can enter;
- Provision of goods, services and facilities;
- Sport; and
There are a number of exceptions and exemptions that apply. For organisations this includes:
- When the religious belief or activity promotes or encourages serious criminal offences;
- Registered charities following their own religious purposes;
- Statements of belief;
- Inherent requirements of jobs;
- Religious clubs; and
- Religious voluntary bodies.
Organisations and individuals can also apply for an exemption from the application of the law from the Australian Human Rights Commission (AHRC).
The Reforms address religious “statements of belief” and their interaction with other discrimination laws. Under the proposed law, religious statements of belief would not breach discrimination laws unless they are malicious, would harass, vilify or incite hatred or violence, or promote/encourage serious criminal offences. This may be a response to the recent situation in Tasmania where priests were taken to court under anti-discrimination legislation for voicing opposition to same-sex marriage.
Amendments to Charity Laws
The Reforms include an interesting amendment to the Charities Act 2013. The amendment aims to protect charities engaging in or promoting activities that “support a view of marriage as a union of a man and woman to the exclusion of all others” from losing their charity status.
This amendment reflects concerns from some faith-based charities that they would lose their charity status (and associated tax concessions) for advocating “traditional” marriage during and after the 2017 same-sex marriage plebiscite. These concerns followed cases in New Zealand and the UK where this happened, including a New Zealand charity losing its charity status for promoting views about marriage and family that were not seen as being for the “public benefit”.
A proposal to “clarify” the position of this in Australian charity law was in the leaked Ruddock Report in 2018. Experts at the time indicated this was unnecessary, noting a charity’s right to advocate in pursuit of its charitable purpose has been firmly recognised in Australian law. Regardless, the proposal is now contained in the Reforms and given it is a fairly innocuous clarification it is unlikely to face push-back.
Faith-based charities will appreciate the clarification, otherwise this will have little impact.
Amendments to other Anti-discrimination legislation
Proposed amendments were made to other federal anti-discrimination laws to state that in giving effect to the objects of the legislation, regard is to be given to:
- “The indivisibility and universality of human rights; and
- The principle that every person is free and equal in dignity and rights”.
The effect of this is unclear, but the intention is to put all human rights (including religious freedom) on an equal playing field.
Of interest is the effect of the proposed laws in relation to conscientious objections. Federal Attorney General Christian Porter has noted that where a state law is silent on conscientious objections, the proposed law would step in and have some work to do. It states that nurses, doctors and other healthcare providers should not be compelled to provide services where they have a genuine religious objection.
Takeaways for organisations
- Review your employment policies and ask whether they indirectly discriminate against religious beliefs or activities. For example, do your policies unreasonably require employees to work during prayer hours?
- If you are a large organisation (turnover of more than $50 million), do you limit the ability of employees to express religious beliefs outside of work hours? If you do, then you would need to show that this conduct would cause unjustifiable financial hardship to the organisation.
- In general terms, the proposed Reforms provide a good opportunity to stop and take stock. Ask yourself the question: how open and appropriate is your organisation for people of faith?