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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
RELIGIOUS DISCRIMINATION (CONSEQUENTIAL AMENDMENTS) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Hon Michaelia Cash)
RELIGIOUS DISCRIMINATION (CONSEQUENTIAL AMENDMENTS) BILL 2021
GENERAL OUTLINE
Purpose and objective
1. The Religious Discrimination (Consequential Amendments) Bill 2021 makes
consequential amendments necessary to support the implementation of the Religious
Discrimination Bill 2021.
2. The Religious Discrimination Bill introduces 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, goods,
services and facilities, and accommodation.
3. The Religious Discrimination Bill also establishes the standalone statutory office of
the Religious Discrimination Commissioner at the Australian Human Rights Commission
(the Commission), and confers functions on the Commission in relation to discrimination on
the grounds of religious belief or activity.
4. This Bill makes consequential amendments to the Australian Human Rights
Commission Act 1986 (the AHRC Act) and other existing federal legislation to ensure that
discrimination on the basis of religious belief or activity under the Religious Discrimination
Bill is treated in the same manner as discrimination under the Age Discrimination Act 2004,
Disability Discrimination Act 1992, Racial Discrimination Act 1975 and the
Sex Discrimination Act 1986.
5. Most significantly, this Bill amends the AHRC Act to extend the Commission's
functions of inquiring into and attempting to conciliate complaints of unlawful discrimination
to complaints of unlawful discrimination under the Religious Discrimination Act (as
enacted). Accordingly, these amendments allow complaints of discrimination on the basis of
religious belief or activity to be made to the Commission. Where such a complaint cannot be
successfully conciliated by the Commission, an individual may then make an application to
the Federal Court or the Federal Circuit and Family Court.
6. This Bill also makes amendments to the AHRC Act and the Inspector-General of
Intelligence and Security Act 1986 to ensure that complaints of discrimination on the basis of
religious belief or activity are dealt with by the appropriate entity. These amendments reflect
the existing framework for referral of complaints from the Commission where those
complaints are in relation to the conduct of intelligence agencies or relate to discriminatory
industrial instruments.
7. This Bill also makes the necessary consequential amendments to the AHRC Act to
establish the Religious Discrimination Commissioner as a member of the Commission,
alongside the President and the existing seven special-purpose Commissioners. These
administrative amendments ensure that the Commissioner is conferred the same functions,
powers, duties and privileges as the existing Commissioners. This includes, for example, the
function of assisting the court as amicus curiae and the application of non-disclosure
obligations.
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8. This Bill makes consequential amendments to other Commonwealth legislation
necessary to reflect the new prohibition on discrimination on the basis of religious belief or
activity. This includes recognising the Religious Discrimination Act as an anti-discrimination
law for the purposes of section 351 of the Fair Work Act 2009 and the Sea Installations Act
1987, and amending the Civil Aviation Act 1988 to provide that civil aviation regulations may
be inconsistent with the Religious Discrimination Act if necessary for the safety of air
navigation.
9. Finally, this Bill also makes contingent amendments should the Equal Opportunity
(Religious Exceptions) Amendment Bill 2021 (Vic) be passed by the Victorian Parliament, in
order to provide that the Equal Opportunity Act 2010 (Vic) is a prescribed State or Territory
law for the purposes of section 11 of the Religious Discrimination Act.
FINANCIAL IMPACT
10. The Bill will have cost implications for the Commission.
11. The creation of the statutory office of the Religious Discrimination Commissioner
will 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.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Religious Discrimination (Consequential Amendments) Bill 2021
12. 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
13. The Religious Discrimination (Consequential Amendments) Bill 2021 (the Bill)
makes consequential amendments to existing Commonwealth legislation to support the
implementation of the Religious Discrimination Bill 2021.
14. This Bill makes amendments to the Australian Human Rights Commission Act 1986
(the AHRC Act) and other Commonwealth legislation to ensure that discrimination on the
basis of religious belief or activity under the Religious Discrimination Act is treated in the
same manner as discrimination under existing federal anti-discrimination legislation.
15. Items 2, 3 and 6 and Items 8 to 11 of Schedule 1 of the Bill amend the AHRC Act to
allow the Australian Human Rights Commission (the Commission) to perform functions in
relation to the Religious Discrimination Act, including the function of inquiring into, and
attempting to conciliate, complaints of unlawful discrimination under the Religious
Discrimination Act.
16. Item 7 and Items 20 to 22 of Schedule 1 make amendments to the AHRC Act and the
Inspector-General of Intelligence and Security Act 1986 (the IGIS Act) to ensure that
complaints of discrimination on the basis of religious belief or activity in relation to the
conduct of intelligence agencies are dealt with by the Inspector-General of Intelligence and
Security (the IGIS). Item 13 makes amendments to the AHRC Act to require the Commission
to refer complaints relating to discriminatory industrial instruments to the Fair Work
Commission. Items 16 to 18 amend the Fair Work Act 2009 to provide that the Religious
Discrimination Commissioner may make submissions to the Fair Work Commission in
relation to such instruments. This reflects the current approach for such complaints under
existing federal anti-discrimination law.
17. Items 1, 4, 5 and 12 of Schedule 1 make amendments to the AHRC Act to establish
the Religious Discrimination Commissioner as a member of the Commission, alongside the
President and the existing seven special-purpose Commissioners. These administrative
amendments ensure that the Commissioner is conferred the same functions, powers, duties
and privileges as the existing Commissioners.
18. Items 14, 15, 19 and 23 of Schedule 1 make the necessary amendments to other
Commonwealth legislation to ensure that the Religious Discrimination Act has the same
application as existing anti-discrimination legislation. This includes recognising the Religious
Discrimination Act as an anti-discrimination law for the purposes of the Sea Installations Act
1987 and the general protections provisions of the Fair Work Act, and amending the
Civil Aviation Act 1988 to provide that civil aviation regulations may be inconsistent with the
Religious Discrimination Act if necessary for the safety of air navigation.
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19. Finally, Schedule 2 of the Bill makes contingent amendments should the Equal
Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) be passed by the Victorian
Parliament, in order to provide that the Equal Opportunity Act 2010 (Vic) is a prescribed
State or Territory law for the purposes of section 11 of the Religious Discrimination Act.
Human rights implications
20. By making consequential amendments that support the operation of the Religious
Discrimination Bill 2021, the Bill primarily engages:
a. the right to freedom of religion
b. the right to an effective remedy, and
c. the rights to equality and non-discrimination.
Right to freedom of religion
21. Article 18 of the International Covenant on Civil and Political Rights (ICCPR)
provides the right to freedom of thought, conscience and religion. The Religious
Discrimination Bill protects this right through making discrimination on the grounds of
religious belief or activity unlawful in a range of areas of public life.
22. The Bill amends the AHRC Act, the Fair Work Act, the IGIS Act and the Sea
Installations Act to reflect the new prohibitions on discrimination on the basis of religious
belief or activity under the Religious Discrimination Act.
23. These amendments promote the right to freedom of religion in two ways:
a. Items 2, 3, 6 and Items 8 to 11 of Schedule 1 ensure that the Commission may
perform functions in relation to the Religious Discrimination Act. This
includes providing that complaints of discrimination on the basis of religious
belief or activity can be considered through the Commission's existing
complaints handling procedures. The Bill also ensures that complaints of
discrimination on the basis of religious belief or activity are referred to the
most appropriate agency, with complaints relating to the conduct of security
agencies referred to the IGIS under amendments made by Item 7 and Items 20
to 22, and complaints relating to discriminatory industrial instruments referred
to the Fair Work Commission under amendments made by Item 13, and
b. Items 1, 4, 5 and 12 of Schedule 1 provide that the Religious Discrimination
Commissioner is a member of the Commission, and holds the same functions,
duties, powers and privileges as the existing Commissioners.
24. These amendments promote the enjoyment by all Australians of the right to freedom
of religion through the creation of mechanisms to investigate and remedy religious
discrimination and through the creation of a statutory office with the purpose of furthering
public understanding and discussion of freedom of religion.
25. In addition, Schedule 2 provides that a religious body that is an educational institution
will not contravene the Equal Opportunity Act (Vic) by preferencing people in employment
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who hold or engage in a particular religious belief or activity, where that conduct is done in
good faith and in accordance with a publicly available policy. These amendments promote
the right to freedom of religion by ensuring that the right is not unduly limited by Victorian
legislation which could restrict or interfere with the ability of religious educational
institutions to maintain the religious ethos of their institution by preferencing people on the
basis of their religious belief or activity in relation to employment.
26. As these amendments promote the right to freedom of religion, they are compatible
with Australia's human rights obligations regarding that right.
Right to an effective remedy
27. 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.
28. Relevantly for this Bill, Article 26 specifies that 'religion' is a prohibited ground of
discrimination.
29. 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.
30. The right to an effective remedy encompasses an obligation to bring perpetrators of
human rights abuses, including discrimination, to justice and to provide appropriate
reparation to victims. Examples of reparation include compensation, restitution,
rehabilitation, public apologies, guarantees of non-repetition and changes in relevant laws
and practices.
31. The amendments to the AHRC Act, Fair Work Act and IGIS Act are all intended to
ensure that complaints of religious discrimination have an appropriate pathway to effective
administrative and judicial remedies. This includes complaints relating to the actions of
federal officials and there is a remedy for discrimination by federal officials in relation to
conduct in key areas of public life such as employment and the administration of laws.
32. Items 2, 3 and 11 of Schedule 1 of the Bill amend the AHRC Act to ensure that
complaints of discrimination on the basis of religious belief or activity, or complaints relating
to offences, under the Religious Discrimination Act are complaints of unlawful
discrimination for the purposes of the Commission's complaints handling functions.
Accordingly, a person aggrieved under the Religious Discrimination Act may make a
complaint to the Commission, alleging unlawful discrimination. The Commission may then
inquire into, and attempt to conciliate, the complaint. If the complaint is not successfully
conciliated, the complainant may apply to the Federal Court or Federal Circuit Court of
Australia for an enforceable remedy.
33. The Commission's complaints handling process provides for a number of remedies
for individuals who have been the subject of unlawful discrimination. The Commission's
conciliation function allows complainants and respondents to mutually agree to appropriate
remedies for the relevant conduct. Examples of outcomes previously conciliated by the
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Commission include apologies, monetary compensation and systemic changes, such as
changes to employment policies or anti-discrimination training.
34. Item 13 and Items 16 to 19 of Schedule 1 amend the AHRC Act and the Fair Work
Act to ensure that complaints regarding discriminatory industrial instruments may be
considered in accordance with the Fair Work Act remedy provisions. These amendments
extend the Commission's power to refer discriminatory industrial instruments to the Fair
Work Commission to include instruments that may be discriminatory on the grounds of
religious belief or activity. In the event that a modern award or enterprise agreement requires
a person to do an act that would be unlawful under the Religious Discrimination Act, the Fair
Work Commission must make a determination varying the instrument to ensure that it no
longer has such effect (see, for example, subsection 161(3) of the Fair Work Act).
35. Item 7 and Items 20 to 22 of Schedule 1 amend the AHRC Act and the IGIS Act to
ensure that any complaints of unlawful discrimination made under the Religious
Discrimination Act that relate to discriminatory conduct in the Australian Intelligence
Community are referred to the IGIS. Any complaint made to the Commission must be
referred to the IGIS if it relates to one of the six intelligence agencies that comprise the
Australian Intelligence Community. The IGIS is the most appropriate place for the
investigation of complaints relating to the Australian Intelligence Community because of
their general intelligence oversight functions, including expertise in investigations relating to
intelligence agencies.
36. The IGIS Act provides an effective remedy for complaints of discrimination. The
IGIS has broad inquiry powers under Divisions 2 and 3 of Part II of the IGIS Act. In
particular the IGIS has the following remedy powers:
a. present reports that recommend particular actions to remedy the complaint,
including the provision of compensation, to relevant agency heads
(section 22), and
b. if the agency does not take adequate and appropriate action in response to
those recommendations, discuss the matter with the responsible Minister, and
prepare a report with a copy supplied to either the Prime Minister or
Attorney-General (subsection 24(2)).
37. These remedy provisions, including the ability to present reports and
recommendations to relevant Ministers, mean that an IGIS inquiry into unlawful
discrimination under the Religious Discrimination Act is an effective remedy under the terms
of Article 2(3)(a) of the ICCPR. Further, the IGIS is a competent authority under
Article 2(3)(b) of the ICCPR, given that it is provided for in the Commonwealth's legal
system through its statutory establishment.
38. While the IGIS cannot directly enforce its recommendations, these recommendations
are enforceable by the executive Government and the heads of the intelligence agencies. This
satisfies the threshold of enforceability in Article 2(3)(c), which requires that the competent
authorities enforce the remedy - in this case, the competent authorities are the executive.
39. In addition, Item 23 of Schedule 1 amends the Sea Installations Act to ensure that
discriminatory conduct occurring on a sea installation off Australia's coast is subject to the
operation of the Religious Discrimination Act, which ensures a remedy for that conduct.
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40. For these reasons, the amendments expressly provide a right to remedy for complaints
of discrimination on the grounds of religious belief or activity.
Rights to equality and non-discrimination
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 CCPR has indicated that 'discrimination' should be understood to include 'a
distinction, exclusion, restriction or preference' (CCPR General Comment No. 18 at [6]).
42. The CCPR has indicated that discrimination should be understood to apply to any
distinction based on any ground which has the purpose or effect of nullifying and 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' (CCPR 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. The amendments in the Bill are aimed at promoting the rights to equality and
non-discrimination. By integrating the Religious Discrimination Bill 2021 within the existing
Commonwealth anti-discrimination framework, the Bill ensures that discrimination on the
basis of religious belief or activity under the Religious Discrimination Act is treated in the
same manner as discrimination under existing federal anti-discrimination law.
45. Items 14 and 15 of Schedule 1 of the Bill amend the Civil Aviation Act to allow for
the making of regulations which are inconsistent with the Religious Discrimination Act if
necessary for the safety of air navigation. This reflects the existing provisions of the Civil
Aviation Act which provide that regulations may be inconsistent with the Sex Discrimination
Act 1984 and Disability Discrimination Act 1992 where necessary for the safety of air
navigation. Accordingly, this amendment permits differential treatment on the basis of
religious belief or activity. 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 stated objective, and be proportionate to its
objective.
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: This differential treatment is necessary to ensure that a
person's religious belief or activity does not endanger aircraft, crews or
passengers. For example, facial coverings may interfere with the safe
operation of oxygen masks and life jackets, endangering both the wearer and
those around the wearer, and flying during periods of fasting can lead to
serious exacerbation of medical conditions, requiring emergency descents and
landings which increase operational risks to aircraft and those aboard them. As
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these religious activities may need to be regulated in order to ensure the safety
of air navigation, it is necessary to allow air safety regulations to be
inconsistent with the Religious Discrimination Act in limited circumstances.
The limitation on manifestation of religious belief is required to promote
public safety, as permitted under Article 18(3) of the ICCPR. Further, the
objective is consistent with the obligation to protect the right to life in law, as
specified in Article 6 of the ICCPR. For these reasons, the limitation has a
legitimate objective which is consistent with Australia's international
obligations.
c. Rationally connected to its stated objective: The criteria used to determine the
differential treatment are strict, including that the treatment is necessary for
the safety of air navigation. Further criteria defining the nature and scope of
the differential treatment would be contained in any regulations made under
the Civil Aviation Act. Analysis of whether the criteria are reasonable and
objective must be undertaken at the time of making those regulations. The
measure will be effective in preventing endangerment of the public by
allowing for reasonable safety measures to be enacted. These measures must
be in regulations which are disallowable and subject to parliamentary scrutiny,
ensuring that any specific limitation of the rights to equality and
non-discrimination in such regulations must be justified in a specific
Statement of Compatibility accompanying those regulations.
d. Proportionate to its objective: Item 15 amends subsection 98(6C) of the Civil
Aviation Act to require the Civil Aviation Safety Authority to consult the
Commission about any proposal to make regulations that are inconsistent with
the Religious Discrimination Act. This is an important safeguard preventing
overreach in the use of the exception. Other measures to address the same
problem such as in principal legislation would either be too inflexible (such as
statutory specification of particular types of religious activity that could be
made unlawful on aircraft) or too specific (such as restricting the periods of
flight in which certain religious activity could be permitted). For these
reasons, allowing for regulations to be made which are inconsistent with the
Religious Discrimination Act in limited circumstances, and requiring
consultation on those regulations, is the most proportionate and appropriate
way of achieving the objective.
46. Therefore, the amendments to the Civil Aviation Act made by Items 14 and 15 of
Schedule 1 constitute legitimate differential treatment.
47. Schedule 2 provides that the Equal Opportunity Act (Vic) is a prescribed State or
Territory law for the purposes of section 11(1) of the Religious Discrimination Act. The
effect of this amendment is that a religious body that is an educational institution will not
contravene the Equal Opportunity Act (Vic) by preferencing people in employment who hold
or engage in a particular religious belief or activity, where that conduct is done in good faith
and in accordance with a publicly available policy. Accordingly, this amendment permits
differential treatment on the basis of religious belief or activity.
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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: Ensuring that religious bodies that are educational
institutions can continue to conduct themselves in accordance with their
religion, through the ability to make employment decisions is necessary to
protect the right to freedom of religion contained in Article 18 of the ICCPR.
The ICCPR has indicated that the concept of the 'observance, practice and
teaching' of religion or belief includes 'acts integral to the conduct by
religious groups of their basic affairs, such as the freedom to choose religious
leaders, priests and teachers and establish seminaries or religious schools'
(ICCPR General Comment No. 22 at [4]).
c. Rationally connected to its objective: Paragraph 11(1)(a) of the Religious
Discrimination Act requires that giving preference to persons who hold or
engage in a particular religious belief in employment be in good faith. Tying
the provision to whether conduct is in good faith ensures that there is a
reasonable nexus between the religious ethos that the provision is trying to
recognise and protect, and the operation of the provision in practice. 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.
d. Proportionate to its objective: The imposition on the right to
anti-discrimination is proportionate to the objective of protecting the right to
freedom of religion. The ability to engage in legitimate differential treatment
on the basis of religion under this provision is necessary to support religious
educational institutions to be able to engage in employment-related decisions
in accordance with their faith and provide a community for adherents who
share their religious beliefs. The application of the provision is limited to
religious bodies that are educational institutions, and requires that any conduct
be in accordance with a publicly available policy which outlines the body's
position and explains how that position will be enforced. On this basis, the
limitation is proportionate to the objective sought.
Conclusion
48. The Bill is compatible with human rights because it promotes 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 legitimate objectives, rationally connected to their objectives, and a
proportionate way of achieving those objectives.
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NOTES ON CLAUSES
List of abbreviations
Age Discrimination Act Age Discrimination Act 2004
AHRC Act Australian Human Rights Commission Act 1986
Commission Australian Human Rights Commission
Disability Discrimination Act Disability Discrimination Act 1992
Fair Work Act Fair Work Act 2009
IGIS Act Inspector-General of Intelligence and Security Act
1986
Inspector-General Inspector-General of Intelligence and Security
President President of the Australian Human Rights
Commission
Racial Discrimination Act Racial Discrimination Act 1975
Religious Discrimination Act Religious Discrimination Act 2021 (as enacted)
Religious Freedom Review Report of the Expert Panel into Religious Freedom
Sex Discrimination Act Sex Discrimination Act 1984
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Preliminary
Clause 1 Short title
49. This clause provides for the short title of the Act to be the Religious Discrimination
(Consequential Amendments) Act 2021.
Clause 2 Commencement
50. This clause provides for the commencement of each provision in the Bill, as set out in
the table at subclause 2(1).
51. Item 1 in the table provides that sections 1 to 3 and anything in the Act not elsewhere
covered by the table will commence on the day on which the Act receives the Royal Assent.
52. Item 2 in the table provides that Schedule 1 will commence at the same time as the
Religious Discrimination Act commences, the date of which is set by Proclamation or six
months from Royal Assent, if not proclaimed earlier.
53. Item 3 in the table provides that Schedule 2 will only commence if both the Religious
Discrimination Act commences and Division 2 of Part 2 of the Equal Opportunity (Religious
Exceptions) Amendment Act 2021 (Vic.). If both of these Acts commence, then Schedule 2
only commences on the later date of commencement of these two Acts. The commencement
of Schedule 2 is contingent on both these Acts commencing. If one or both of these two Acts
do not commence, Schedule 2 does not commence.
54. Subclause 2(2) specifies that information in column 3 of the table is not a part of the
Act, and information may be inserted in this column, or information in it may be edited, in
any published version of this Act.
Clause 3 Schedules
55. This clause enables legislation that is specified in a Schedule to this Act to be
amended or repealed as set out in the applicable items in the Schedule concerned, and
specifies that any other item in a Schedule to this Act has effect according to its terms.
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Schedule 1 - Amendments consequential on the enactment of the Religious
Discrimination Act 2021
Australian Human Rights Commission Act 1986
Item 1 Subsection 3(1)
56. Item 1 inserts a definition of 'Religious Discrimination Commissioner' into
subsection 3(1) of the AHRC Act to mean the person that is appointed under the Religious
Discrimination Act.
Item 2 Subsection 3(1) (after paragraph (b) of the definition of unlawful
discrimination)
57. Item 2 extends the definition of 'unlawful discrimination' in subsection 3(1) of the
AHRC Act to include any acts, omissions or practices that are unlawful under Part 4 of the
Religious Discrimination Act.
58. This ensures that the Commission can exercise its functions relating to unlawful
discrimination in respect of unlawful discrimination on the ground of religious belief or
activity under the Religious Discrimination Act. This includes the Commission's functions of
inquiring into and attempting to conciliate complaints of unlawful discrimination under
Part IIB of the AHRC Act.
Item 3 Subsection 3(1) (after paragraph (e) of the definition of unlawful
discrimination)
59. Item 3 extends the definition of 'unlawful discrimination' in subsection 3(1) of the
AHRC Act to include any conduct that is an offence under Part 5 of the Religious
Discrimination Act.
60. This ensures that the Commission can exercise its functions relating to unlawful
discrimination in respect of offences under the Religious Discrimination Act. This includes
the Commission's functions of inquiring into and attempting to conciliate complaints of
unlawful discrimination under Part IIB of the AHRC Act. Accordingly, the Commission is
able to inquire into and attempt to conciliate complaints of victimisation and of
discriminatory advertisements under Part 5 of the Religious Discrimination Act.
Item 4 At the end of subsection 8(1)
61. Item 4 amends subsection 8(1) of the AHRC Act to provide that the composition of
the Commission must include the Religious Discrimination Commissioner as a member of
the Commission.
62. Subsection 8(1) of the AHRC Act provides that the Commission is to consist of the
President (paragraph 8(1)(a)) and the existing seven special-purpose statutory Commissioners
(paragraphs 8(1)(b)-(g)). All statutory Commissioners are members of the Commission.
63. As a member of the Commission, the Religious Discrimination Commissioner is
required to work co-operatively with the other Commissioners to achieve common objectives
(subsection 8(2)).
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64. In addition, the Commission may delegate any of the functions or powers conferred
on it by the AHRC Act to the Religious Discrimination Commissioner (section 19). In
addition, the Religious Discrimination Commissioner is protected from civil actions related to
the performance of such functions done in good faith (section 48), and is subject to the
non-disclosure provisions of section 49.
Item 5 Subsection 8(7)
65. Item 5 amends subsection 8(7) of the AHRC Act to provide that a vacancy in the
office of the Religious Discrimination Commissioner does not, of itself, affect the
Commission's performance of its functions or exercise of its powers.
Item 6 Paragraph 11(1)(a)
66. Item 6 amends paragraph 11(1)(a) of the AHRC Act to ensure that the functions of the
Commission include such functions conferred on the Commission by the Religious
Discrimination Act. This includes, for example, the functions conferred on the Commission
by section 61 of the Religious Discrimination Act.
Item 7 Subsection 11(3)
67. Item 7 amends subsection 11(3) of the AHRC Act to provide that the Commission
must refer complaints made to the Commission alleging that an act or practice of an
intelligence agency is unlawful under the Religious Discrimination Act to the
Inspector-General.
68. Subsection 11(3) of the AHRC Act provides that the Commission's functions do not
include inquiring into the acts or practices of an intelligence agency (as defined in
subsection 11(4)). If a complaint is made alleging that an act or practice of an intelligence
agency is unlawful under the Age Discrimination Act, Disability Discrimination Act, Racial
Discrimination Act or the Sex Discrimination Act, the Commission must refer the complaint
to the Inspector-General. Similar to existing anti-discrimination law, Item 7 extends this
requirement to acts or practices which are alleged to be unlawful under the Religious
Discrimination Act.
69. A key function of the Inspector-General is to assist Ministers in ensuring that the
activities of Australian intelligence agencies are consistent with human rights
(subsection 4(b) of the IGIS Act). Complaints relating to the acts or practices of an
intelligence agency which are alleged to constitute unlawful discrimination are therefore
more appropriately referred to the Inspector-General for inquiry as part of their general
oversight functions.
Item 8 Subsection 14(8)
70. Item 8 amends subsection 14(8) of the AHRC Act to provide that the Commission
may not make an examination or hold an inquiry in relation to functions conferred on it by
the Religious Discrimination Act.
71. Subsection 14(1) of the AHRC provides that the Commission, in the performance of
its functions, may make an examination or hold an inquiry in such manner as it sees fit
without being bound by the rules of evidence. Such examinations and inquiries are carried
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out in respect of the Commission's human rights and equal opportunity in employment
functions (Divisions 3 and 4 of Part II of the AHRC Act respectively), but not in respect of
the Commission's unlawful discrimination functions (Part IIB of the AHRC Act).
72. Accordingly, subsection 14(8) provides that the functions referred to in
subsection 14(1) do not include functions conferred on the Commission by the
Age Discrimination Act, Disability Discrimination Act or the Sex Discrimination Act. Item 8
extends these exclusions to functions conferred on the Commission by the Religious
Discrimination Act.
Item 9 Subsection 16(2A)
73. Item 9 amends subsection 16(2A) of the AHRC Act to provide that an act done by a
State or an instrumentality of a State under an inter-governmental arrangement is deemed to
have been done by the President for the purposes of the Religious Discrimination Act.
74. Section 16 of the AHRC Act provides that inter-governmental arrangements may be
made between the Commonwealth and the States in relation to the performance of the
Commission's functions, or the Commission's performance of functions relating to human
rights or discrimination in employment on behalf of a State. For example, paragraph 16(1)(b)
provides that the Commonwealth and a State may make an arrangement allowing the State or
an instrumentality of that State (for example, a State public service employee or a State office
holder) to perform any of the Commission's functions on behalf of the Commonwealth.
75. Subsection 16(2A) ensures that any act done by a State or an instrumentality of a
State under such an arrangement is deemed to have been done by the President for the
purposes of the AHRC Act, the Age Discrimination Act, Disability Discrimination Act,
Racial Discrimination Act and the Sex Discrimination Act. Item 9 extends this provision to
deem such acts as being done by the President for the purposes of the Religious
Discrimination Act.
Item 10 Subsection 19(6)
76. Item 10 amends subsection 19(6) of the AHRC Act to clarify that the Commission's
ability, under subsection 19(1), to delegate the powers conferred on it under the AHRC Act
does not apply to powers conferred on the Commission by the Religious Discrimination Act.
77. Subsection 19(1) provides that the Commission may delegate any of the powers
conferred on it under the AHRC Act to a member of the Commission, a member of staff of
the Commission or another person or body of persons.
78. Subsection 19(6) provides that these powers do not include the powers conferred on
the Commission by the Age Discrimination Act, Disability Discrimination Act, Racial
Discrimination Act or the Sex Discrimination Act. This is because the delegation of powers
under the Age Discrimination Act, Disability Discrimination Act, Racial Discrimination Act
and the Sex Discrimination Act is governed by those Acts.
79. Item 10 ensures that the AHRC similarly cannot delegate the powers conferred on it
by the Religious Discrimination Act under subsection 19(1), as delegation of those powers is
governed by that Act. Section 69 of the Religious Discrimination Act provides that the
Commission may delegate all or any of its functions or powers to the Religious
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Discrimination Commissioner or another member of the Commission, a member of staff or
any other person or body of persons.
Item 11 Subsection 46PF(3) (note)
80. Item 11 amends the note following subsection 46PF(3) of the AHRC Act to note
specific provisions of the Religious Discrimination Act which impose liability for unlawful
discrimination onto other persons.
81. Section 46PF of the AHRC Act relates to inquiries into complaints alleging unlawful
discrimination. Subsection 46PF(3) provides that a complainant, with leave of the President,
may amend their complaint to add, as a respondent, a person who is alleged to have done the
alleged act of unlawful discrimination.
82. The note following subsection 46PF(3) notes that a person may be regarded as
responsible for acts of unlawful discrimination done by another person, referring to the
relevant provisions of the Age Discrimination Act, Disability Discrimination Act, Racial
Discrimination Act and the Sex Discrimination Act which impose liability for unlawful
discrimination onto other persons. Item 11 ensures that the note also includes a reference to
sections 70 and 71 of the Religious Discrimination Act, which concern liability for conduct
ancillary to unlawful discrimination (section 70) and liability for the conduct of
representatives (section 71).
Item 12 At the end of subsection 46PV(3)
83. Item 12 amends subsection 46PV(3) of the AHRC Act to enable the Religious
Discrimination Commissioner to assist the Federal Court or the Federal Circuit and Family
Court as amicus curiae in certain proceedings.
84. Section 46PV of the AHRC Act provides that special-purpose Commissioners may
assist the Federal Court and the Federal Circuit and Family Court as amicus curiae in certain
proceedings under Division 2 of the AHRC Act. An amicus curiae, or a 'friend to the court',
assists the court on points of law or relevant facts, but does not have a legal interest in the
proceedings nor are they a party to the proceedings.
85. For the purposes of this section, special-purpose Commissioner is defined by
subsection 46PV(3) to include all members of the Commission, excluding the President.
Item 13 extends the definition of 'special-purpose Commissioner' in subsection 46PV(3) to
include the Religious Discrimination Commissioner. Accordingly, the Religious
Discrimination Commissioner may assist the Court as amicus curiae in proceedings which
may have significant implications for the administration of the Religious Discrimination Act,
proceedings in which the orders sought may affect to a significant extent the human rights of
persons who are not party to the proceedings, or proceedings in which it would be in the
public interest for the Commissioner to assist the court.
Item 13 Subsection 46PW(7) (after paragraph (b) of the definition of
discriminatory act under an industrial instrument)
86. Item 13 amends subsection 46PW(7) of the AHRC Act to extend the Commission's
power to refer industrial instruments to the Fair Work Commission to include instruments
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which require a person to do an act that would be unlawful under the Religious
Discrimination Act.
87. Section 46PW of the AHRC Act provides that 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. If the President is of the view that the act is a
discriminatory act, made under an industrial instrument, the President must refer the
industrial instrument to the Fair Work Commission. Subsection 46PW(7) defines a
'discriminatory act under an industrial instrument' as an act that would be unlawful under the
relevant provisions of the Age Discrimination Act, Disability Discrimination Act or the
Sex Discrimination Act, but for the fact that the act was done in direct compliance with that
instrument.
88. Item 14 extends the definition of 'discriminatory act under an industrial instrument' in
subsection 46PW(7) to include an act that would be unlawful under Part 4 of the Religious
Discrimination Act, but for the fact that the act was done in direct compliance with that
instrument.
Civil Aviation Act 1988
Item 14 After subsection 98(6B)
89. Item 14 provides that regulations made under section 98 of the Civil Aviation Act
1988 may contain provisions that are inconsistent with the Religious Discrimination Act if
the inconsistency is necessary for the safety of air navigation.
90. Subsections 98(6A) and (6B) currently provide that the regulations may contain
provisions inconsistent with the Sex Discrimination Act (related to medical standards) and
the Disability Discrimination Act, respectively, if the inconsistency is necessary for the safety
of air navigation. Item 14 inserts new subsection 98(6BA) to similarly exempt provisions
which may be inconsistent with the Religious Discrimination Act but are necessary for the
safety of air navigation. Such provisions may include, for example, provisions prohibiting
certain types of religious dress which may interfere with safety requirements, such as wearing
oxygen masks, or prohibiting flying during periods of fasting.
Item 15 Subsection 98(6C)
91. Item 15 amends subsection 98(6C) of the Civil Aviation Act to provide that the Civil
Aviation and Safety Authority (CASA) must consult with the Commission about any
proposal that regulations be made containing provisions which are inconsistent with the
Religious Discrimination Act.
92. Subsection 98(6C) requires CASA to consult with the Commission about proposed
regulations which are inconsistent with the Sex Discrimination Act or the
Disability Discrimination Act (in accordance with subsections 98(6A) and (6B) respectively).
This item extends subsection 98(6C) to similarly require CASA to consult with the
Commission regarding proposed regulations which may be inconsistent with the Religious
Discrimination Act in accordance with subsection 98(6BA) as inserted by Item 14 of this Act.
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Fair Work Act 2009
Item 16 Section 12
93. Item 4 inserts a definition of 'Religious Discrimination Commissioner' into section 12
of the Fair Work Act to mean the person that is appointed under the Religious Discrimination
Act.
Item 17 After paragraph 161(2)(b)
94. Item 17 amends subsection 161(2) of the Fair Work Act to entitle the Religious
Discrimination Commissioner to make submissions to the Fair Work Commission related to a
modern award which requires a person to do an act that would be unlawful under the
Religious Discrimination Act.
95. This amendment is consequential to Item 13 which amends section 46PW of the
AHRC Act to provide that the Commission must refer to the Fair Work Commission
industrial instruments which require a person to do an act which would otherwise be unlawful
under the Religious Discrimination Act but for the fact that the act would be done in direct
compliance with the industrial instrument.
96. Section 161 of the Fair Work Act requires the Fair Work Commission to review a
modern award if that award is referred to the Fair Work Commission by the Commission
under section 46PW of the AHRC Act.
97. Where the referral relates to actions which would be unlawful under the Age
Discrimination Act, Disability Discrimination Act or the Sex Discrimination Act,
subsection 161(2) of the Fair Work Act provides that the relevant Commissioner is entitled to
make submissions to the Fair Work Commission. Item 17 will allow the Religious
Discrimination Commissioner to similarly make submissions regarding referrals relating to
actions which would be unlawful under the Religious Discrimination Act.
Item 18 After paragraph 218(2)(b)
98. Item 18 amends subsection 218(2) of the Fair Work Act to entitle the Religious
Discrimination Commissioner to make submissions to the Fair Work Commission related to
an enterprise agreement which requires a person to do an act that would be unlawful under
the Religious Discrimination Act.
99. This amendment is consequential to Item 13 which amends section 46PW of the
AHRC Act to provide that the Commission must refer to the Fair Work Commission
industrial instruments which require a person to do an act which would be unlawful under the
Religious Discrimination Act but for the fact that the act would be done in direct compliance
with the industrial instrument.
100. Section 218 of the Fair Work Act requires the Fair Work Commission to review an
enterprise agreement if that agreement is referred to the Fair Work Commission by the
Commission under section 46PW of the AHRC Act.
101. Where the referral relates to actions which would be unlawful under the Age
Discrimination Act, Disability Discrimination Act or the Sex Discrimination Act,
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subsection 281(2) of the Fair Work Act provides that the relevant Commissioner is entitled to
make submissions to the Fair Work Commission. Item 18 will allow the Religious
Discrimination Commissioner to similarly make submissions regarding referrals relating to
actions which would be unlawful under the Religious Discrimination Act.
Item 19 After paragraph 351(3)(ac)
102. Item 19 extends the definition of 'anti-discrimination law' for the purposes of
section 351 of the Fair Work Act to include the Religious Discrimination Act.
103. Subsection 351(1) of the Fair Work Act provides that an employer must not take
adverse action against an employee or prospective employee on the basis of that person's
race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family
or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social
origin.
104. Paragraph 351(2)(a) provides that the prohibition in subsection 351(1) does not apply
to action that is not unlawful under any anti-discrimination law in force in the place where the
action is taken. Subsection 351(3) prescribes the list of anti-discrimination laws for the
purposes of the exception in paragraph 351(2)(a). This currently includes all existing federal
anti-discrimination laws and state and territory anti-discrimination laws.
105. Item 19 amends subsection 351(3) of the Fair Work Act to include the Religious
Discrimination Act as an anti-discrimination law for the purposes of section 351. This will
have the effect of ensuring that conduct which is not unlawful under the Religious
Discrimination Act, for example because it falls within an exception, will not be unlawful for
the purposes of section 351 of the Fair Work Act. The exceptions in the Religious
Discrimination Act will therefore operate concurrently with the existing exceptions in
subsection 351(2) of the Fair Work Act, as is the case for existing anti-discrimination
legislation.
Inspector-General of Intelligence and Security Act 1986
Item 20 Subparagraph 8(1)(a)(v)
106. Item 20 extends the functions of the Inspector-General in relation to the Australian
Security Intelligence Organisation (ASIO) to include inquiring into complaints referred to it
by the Commission alleging that an act or practice of ASIO may be unlawful under the
Religious Discrimination Act.
107. This amendment is consequential to Item 7 of the amendments to the AHRC Act,
which amends subsection 11(3) of the AHRC Act to require the Commission to refer to the
Inspector-General complaints alleging that an act or practice of an intelligence agency is
unlawful under the Religious Discrimination Act.
108. Subparagraph 8(1)(a)(v) of the IGIS Act provides that the Inspector-General has the
function of inquiring into any act or practice of ASIO referred to the Inspector-General by the
Commission that may be inconsistent with or contrary to any human right, that may
constitute discrimination or that may be unlawful under existing federal anti-discrimination
law. Item 20 extends this inquiry function to include an act or practice of ASIO that may be
unlawful under the Religious Discrimination Act.
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Item 21 Subparagraph 8(2)(a)(iv)
109. Item 21 extends the functions of the Inspector-General in relation to the Australian
Secret Intelligence Service (ASIS), Australian Geospatial-Intelligence Organisation (AGO)
and the Australian Signals Directorate (ASD) to include inquiring into complaints referred to
it by the Commission alleging that an act or practice of ASIS, AGO or ASD may be unlawful
under the Religious Discrimination Act.
110. This amendment is consequential to Item 7 of the amendments to the AHRC Act,
which amends subsection 11(3) of the AHRC Act to require the Commission to refer to the
Inspector-General complaints alleging that an act or practice of an intelligence agency is
unlawful under the Religious Discrimination Act.
111. Subparagraph 8(2)(a)(iv) of the IGIS Act provides that the Inspector-General has the
function of inquiring into any act or practice of ASIS, AGO or ASD referred to the
Inspector-General by the Commission that may be inconsistent with or contrary to any human
right, that may constitute discrimination or that may be unlawful under existing federal
anti-discrimination law. Item 21 extends this inquiry function to include an act or practice of
ASIS, AGO or ASD that may be unlawful under the Religious Discrimination Act.
Item 22 Subparagraph 8(3)(b)(i)
112. Item 22 extends the functions of the Inspector-General in relation to the Defence
Intelligence Organisation (DIO) or Office of National Intelligence (ONI) to include inquiring
into complaints referred to it by the Commission alleging that an act or practice of the DIO or
ONI that may be unlawful under the Religious Discrimination Act.
113. This amendment is consequential to Item 7 of the amendments to the AHRC Act,
which amends subsection 11(3) of the AHRC Act to require the Commission to refer to the
Inspector-General complaints alleging that an act or practice of an intelligence agency is
unlawful under the Religious Discrimination Act.
114. Subparagraph 8(3)(b)(i) of the IGIS Act provides that the Inspector-General has the
function of inquiring into any act or practice of DIO or ONI referred to the Inspector-General
by the Commission that may be inconsistent with or contrary to any human right, that may
constitute discrimination or that may be unlawful under existing federal anti-discrimination
law. Item 22 extends this inquiry function to include an act or practice of DIO or ONI that
may be unlawful under the Religious Discrimination Act.
Sea Installations Act 1987
Item 23 Schedule
115. Section 45 of the Sea Installations Act 1987 provides that certain Commonwealth
Acts, as provided for in the Schedule to that Act, apply to sea installations installed in
adjacent areas as if those areas were part of the Commonwealth. This currently includes the
Age Discrimination Act, Racial Discrimination Act and Sex Discrimination Act.
116. Item 23 amends the Schedule to similarly ensure that the Religious Discrimination
Act applies to sea installations in adjacent areas.
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Schedule 2 - Contingent amendments
117. Schedule 2 provides for contingent amendments should the Equal Opportunity
(Religious Exceptions) Amendment Bill 2021 (Vic), which amends the Equal Opportunity
Act 2010 (Vic) (the Victorian Equal Opportunity Act), be passed by the Victorian Parliament.
Religious Discrimination Act 2021
Item 1 Subsection 11(2)
118. Item 1 amends subsection 11(2) of the Religious Discrimination Act to insert a
paragraph that include the Equal Opportunity Act 2010 (Vic) as a prescribed State or
Territory law for the purposes of that section.
119. Section 11 of the Religious Discrimination Act provides that a religious body that is
an educational institution does not contravene a prescribed State or Territory law by giving
preference, in good faith, to persons who hold or engage in a particular religious belief or
activity in employment, in accordance with a publicly available policy.
120. The Equal Opportunity Act prohibits discrimination on the ground of religious belief
or activity, as well as discrimination on the basis of other protected attributes, in key areas of
public life, including in education. The Equal Opportunity (Religious Exceptions)
Amendment Bill 2021 (Vic) amends the existing religious exemptions in the Equal
Opportunity Act in a manner which interferes with an educational institution's ability to
preference people in employment decisions.
121. This amendment will provide that the Equal Opportunity Act is a prescribed State or
Territory law on the face of the Religious Discrimination Act. Accordingly, under
section 11(1) a religious body that is an educational institution will not contravene the Equal
Opportunity Act by preferencing people in employment who hold or engage in a particular
religious belief or activity, where that conduct is done in good faith and in accordance with a
publicly available policy.
Item 2 Subsection 11(3)
122. Item 2 is consequential to Item 1. This item amends subsection 11(3) of the Religious
Discrimination Act to provide for the correct cross-reference following insertion of the
paragraph into subsection 11(2) to include the Equal Opportunity Act 2010 (Vic) as a
prescribed State or Territory law.
Item 3 Subsection 11(4)
This amendment is consequential to Item 1 of the amendments to the Religious
Discrimination Act, which amends subsection 11(2) of the Religious Discrimination Act to
include the Equal Opportunity Act 2010 (Vic) as a prescribed State or Territory law.
Subsection 11(4) of the Religious Discrimination Act provides that section 11 only has effect
if a law of a State or Territory is prescribed by the regulations. The purpose of this
subsection 11(4) is to clarify that section 11 does not otherwise have any operative effect
unless and until a law of a State or Territory is prescribed by the regulations. This item
repeals subsection 11(4) as it is no longer necessary, because the inclusion of the Equal
20
Opportunity Act 2010 (Vic) as a prescribed State or Territory law on the face of the Religious
Discrimination Act means that section 11 will now have operative effect.
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