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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 Australiaxs 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
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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.
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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
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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-
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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.
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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.
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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 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
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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.
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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.
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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
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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),
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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
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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
14
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.
15
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
16
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
17
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
18
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.
19
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
20
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
21
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.
22
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
23
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
24
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
25
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
26
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
27
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.
28
29
NOTES ON CLAUSES
List of abbreviations
Acts Interpretation Act Acts Interpretation Act 1901
Age Discrimination Act Age Discrimination Act 2004
AHRC Act 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
30
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.
31
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
32
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.
33
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'
34
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.
35
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.
36
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.
37
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
38
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
39
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.
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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).
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'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.
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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
43
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
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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
1
Religious Freedom Review: Report of the Expert Panel (2018), page 95.
45
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
46
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,
47
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).
48
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.
49
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
50
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
51
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
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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.
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'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).
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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:
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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
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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.
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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 employees a 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.
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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 activity--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.
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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 activity--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.
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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
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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
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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
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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,
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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.
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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
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.
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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
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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 religious bodies 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.
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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.
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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.
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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 agencyxs
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
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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 provision is 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.
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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
person to 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
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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.
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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
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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.
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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.
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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.
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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.
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.
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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
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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.
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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).
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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:
83
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
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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
85
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
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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.
87
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
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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.
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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,
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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))
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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 anti-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.
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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
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(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)).
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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.
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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
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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 ancillary conduct 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
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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
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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.
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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.
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