Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
RELIGIOUS DISCRIMINATION BILL 2021
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable Michaelia Cash)
AMENDMENTS TO THE RELIGIOUS DISCRIMINATION BILL 2021
(Government)
GENERAL OUTLINE
1. The purposes of these amendments to the Religious Discrimination Bill 2021 (the
Bill) and the Explanatory Memorandum to the Bill is to respond to recommendations
made by the Parliamentary Joint Committee on Human Rights (PJCHR) and the
Senate Legal and Constitutional Affairs Legislation Committee (SLCALC) in their
respective reports on the Bill.
Publicly available policies
2. Amendments 2 to 6 and 13 to 16 would clarify the requirements for publicly
available policies under certain provisions.
Override of State and Territory laws
3. Amendments 1, 7 to 9, 11, 21 and 22 would clarify the operation of clauses 11 and
12.
4. Clauses 11 and 12 would exempt certain conduct from the operation of specified
Commonwealth, State and Territory laws in particular circumstances.
5. The SLCALC recommended that the Government consider submissions received by
that Committee that raised concerns about whether the drafting of clauses 11 and 12
effectively engaged section 109 of the Commonwealth Constitution.
6. For the avoidance of any doubt, these amendments would clarify the drafting of
clauses 11 and 12 to ensure that clauses 11 and 12 would, consistent with the terms
of these provisions, apply to the exclusion of any inconsistent state or territory laws.
Consequential amendments are also made to clauses 5, 18 and 68.
7. These amendments are not intended to change the scope or operation of clauses 11
and 12.
Burden of proof - indirect discrimination
8. Amendment 10 would correct a technical error that occurred during drafting of the
Bill.
9. The Bill prohibits discrimination on the ground of religious belief or activity in key
areas of public life. This includes indirect discrimination. This amendment would
ensure that the burden of proof for indirect discrimination under the Bill is consistent
with equivalent Commonwealth anti-discrimination legislation.
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Reasonable management action
10. Amendment 12 would clarify that reasonable management action does not constitute
discrimination.
Granting, varying and revoking temporary exemptions
11. Amendments 17 to 20 would insert new clause 44A, which would require the
Australian Human Rights Commission (the Commission) to issue notices setting out
certain matters in relation to the making of temporary exemptions by the
Commission, and amend clauses 47 and 48 of the Bill, which would remove the
Minister's power to vary or revoke a temporary exemption.
FINANCIAL IMPACT
12. These amendments would not impact the existing financial impact of the Bill and
associated legislation.
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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. The amendments to the Religious Discrimination Bill 2021 (the Bill) are 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. Amendments 2 to 6 and 13 to 16 would clarify the requirements for publicly
available policies under certain provisions, making these subclauses consistent with
subclause 11(1) of the Bill.
3. Amendments 1, 7 to 9, 11, 21 and 22 would clarify the operation of clauses 11 and
12 in Part 2 of the Bill, and would make related consequential amendments.
4. Amendment 10 would fix a technical error in the drafting of clause 14 of the Bill,
which prohibits indirect discrimination on the grounds of religious belief or activity.
5. Amendment 12 would clarify that reasonable management action does not constitute
discrimination in the course of employment.
6. Amendments 17 to 20 would insert a new provision at clause 44A to require the
Australian Human Rights Commission (the Commission) to issue notices setting out
certain matters in relation to the making of temporary exemptions by the
Commission, and would amend clauses 47 and 48 to remove the Minister's power to
vary or revoke an instrument.
Human rights implications
7. These amendments are consistent with the human rights implications established in
the Explanatory Memorandum to the Bill.
Publicly available policies
8. The purpose of the Bill is to promote the human rights to freedom of religion and
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.
9. These amendments will ensure that provisions in the Bill which require certain
entities to have a publicly available policy set out the requirements for such a policy.
The amendments require that the policy outline an entity's position in relation to
particular religious beliefs or activities, explains how the entity will enforce the
position it has outlined, and requires the entity to make the policy publicly available
(including, where appropriate to the provision, when employment opportunities
become available). This ensures the position of entities in relation to particular
exceptions in the Bill is set out and available to the public.
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10. In doing so, the Bill further protects the right to freedom of religion (under Article 18
of the International Covenant on Civil and Political Rights (ICCPR)) and the right to
equality and non-discrimination (under Articles 2 and 26 of the ICCPR).
Override of State and Territory laws
11. These amendments are consistent with the human rights implications established in
the Explanatory Memorandum to the Bill. As these amendments would not change
the substantive operation or intention of clauses 11, 12 and 68, the analysis of the
human rights engaged by these clauses contained in the Explanatory Memorandum to
the Bill is unchanged.
Burden of proof - indirect discrimination
12. These amendments will ensure that provisions under the Bill relating to indirect
discrimination on the grounds of religious belief or activity are consistent with
equivalent provisions under the Sex Discrimination Act 1984, the Disability
Discrimination Act 1992 and the Age Discrimination Act 2004.
13. In doing so, these amendments further protect the right to freedom of religion (under
Article 18 of the ICCPR) and the rights to equality and non-discrimination (under
Articles 2 and 26 of the ICCPR).
Reasonable management action
14. These amendments will ensure that provisions under the Bill relating to employment
will not inhibit employers undertaking reasonable management action. This is
intended to include action undertaken in compliance with legal obligations, such as
actions to comply with workplace health and safety laws. Accordingly, these
measures in the Bill further promote the right to physical and mental health (under
Article 12 of the International Covenant on Economic, Social and Cultural Rights).
Granting, varying and revoking temporary exemptions
15. As the grant of a temporary exemption allows a person to discriminate on the
grounds of religious belief or activity under the Bill, these amendments ensures that
information about decisions made by the Commission on applications for temporary
exemptions is made public. These amendments thereby provides further protection
under Article 26 of the ICCPR, by guaranteeing all persons equal and effective
protection against discrimination.
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NOTES ON AMENDMENTS
Amendment 1: Clause 5, page 5 (line 8).
1. This amendment would replace the reference to clause 12 in Note 2 under the
definition of 'discriminate' in subclause 5(1) with a reference to subclause 12(1). This
amendment is consequential to Amendment 8, which would create a new
subclause 12(1) which would relate to statements of belief which do not constitute
discrimination for the purposes of specified Commonwealth legislation.
Amendment 2: Clause 7, page 11 (lines 22 to 27)
2. This amendment would amend subclause 7(6) of the Bill.
3. Subclause 7(6) provides that, if a religious educational institution engages in certain
conduct in relation to clause 19 (about employment), then that religious educational
institution must have a publicly available policy in relation to the relevant conduct.
4. This amendment would insert requirements for this publicly available policy,
consistent with the current guidance for educational institutions under
paragraph 11(1)(b). Namely, the amendment specifies that the policy:
a. outlines the religious body's position in relation to particular religious beliefs
or activities; and
b. explains how the position is or will be enforced by the religious body; and
c. is publicly available, including at the time employment opportunities with the
religious body become available.
5. This is consistent with the policy intent of the provision, which sought to balance the
right of religious bodies to maintain their religious ethos, while ensuring that the
position of a religious body was publicly available, including to potential job
applicants. These requirements are consistent with the comments of the Expert Panel
as set out in the 2018 Report of the Religious Freedom Review.
Amendment 3: Clause 7, page 11 (lines 28 and 29)
6. This amendment would omit subclause 7(7) of the Bill. As Amendment 2 provides
further detail in the provision about the requirements for a policy, it is not considered
necessary for the Minister to have a power to determine any requirements for policies.
Amendment 4: Clause 9, page 13 (lines 32 to 36)
16. This amendment would amend subclause 9(3) of the Bill.
17. Subclause 9(3) currently 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 in respect of
employment and partnerships, if 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. Such conduct must be undertaken in accordance with a
publicly available policy.
18. This amendment would insert requirements for this publicly available policy,
consistent with the current guidance for educational institutions under
paragraph 11(1)(b). Namely, the amendment specifies that the policy:
a. outlines the religious body's position in relation to particular religious beliefs
or activities; and
b. explains how the position is or will be enforced by the religious body; and
c. is publicly available, including at the time employment opportunities with the
religious body become available.
19. This is consistent with the policy intent of the provision, which sought to balance the
right of religious bodies to maintain their religious ethos, while ensuring that the
position of a religious body was publicly available, including to potential job
applicants. These requirements are consistent with the comments of the Expert Panel
as set out in the 2018 Report of the Religious Freedom Review.
Amendment 5: Clause 9, page 14 (lines 22 to 26)
20. This amendment would amend subclause 9(5) of the Bill.
21. Subclause 9(5) currently 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 in respect of
employment and partnerships, if that body engages in the conduct to avoid injury to
the religious susceptibilities of adherents of the same religion as the body. Such
conduct must be undertaken in accordance with a publicly available policy.
22. This amendment would insert requirements for this publicly available policy,
consistent with the current guidance for educational institutions under
paragraph 11(1)(b). Namely, the amendment specifies that the policy:
a. outlines the religious body's position in relation to particular religious beliefs
or activities; and
b. explains how the position is or will be enforced by the religious body; and
c. is publicly available, including at the time employment opportunities with the
religious body become available.
23. This is consistent with the policy intent of the provision, which sought to balance the
right of religious bodies to maintain their religious ethos, while ensuring that the
position of a religious body was publicly available, including to potential job
applicants. These requirements are consistent with the comments of the Expert Panel
as set out in the 2018 Report of the Religious Freedom Review.
Amendment 6: Clause 9, page 14 (lines 34 to 36)
24. This amendment would omit subclause 9(7) of the Bill. As Amendments 4 and 5
provide further detail in the provision about the requirements for a policy, it is not
considered necessary for the Minister to have a power to determine any requirements
for policies.
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Amendment 7: Clause 11, page 15 (lines 22 to 34)
25. This amendment would replace existing subclause 11(1) with a new subclause 11(1)
to clarify and remove any doubt about the intended operation of this clause. This
amendment does not alter the scope or operation of clause 11.
26. New subclause 11(1) would provide that, despite any prescribed State or Territory
law, it is not unlawful for a religious body that is an educational institution to give
preference in good faith to persons who hold or engage in a particular religious belief
or activity in employment, so long as the conduct is in accordance with a written
policy that meets the requirements of paragraphs 11(1)(a), (b) and (c). It is intended
that a State or Territory law which is prescribed by subclause 11(3) of the Bill would
be overridden by new subclause 11(1).
27. This amendment does not affect subclauses 11(2), (3) and (4) which relate to the
prescription of State or Territory laws.
Amendment 8: Clause 12, page 16 (line 22) to page 17 (line 10)
28. This amendment would replace existing subclause 12(1) with new subclauses 12(1),
(1A) and (1B) to clarify and remove any doubt about the intended operation of this
clause. This amendment would not amend the scope of clause 12.
29. New subclause 12(1) would relate to Commonwealth anti-discrimination laws. It
would provide that the making of a statement of belief, in and of itself, does not
constitute discrimination for the purposes of Commonwealth anti-discrimination law,
or a provision of a law of the Commonwealth prescribed by the regulations.
30. New subclause 12(1A) would relate to State and Territory anti-discrimination laws. It
would provide that the making of a statement of belief, in and of itself, is not
unlawful despite any provision of a law of a State or Territory that regulates or
prohibits discrimination, being either a State or Territory anti-discrimination law
listed at paragraphs 12(1A)(a) to (h), or a State or Territory law prescribed by the
regulations.
31. New subclause 12(1B) would relate to other State or Territory laws. It would provide
that the making of a statement of belief, in and of itself, is not unlawful despite
subsection 17(1) of the Anti-Discrimination Act 1998 (Tas) or a provision of a law of
a State or Territory prescribed by the regulations.
Amendment 9: Clause 12, page 17 (line 11)
32. This amendment would replace the reference to 'subsection (1)' in subclause 12(2)
with 'This section'.
33. This amendment is consequential to Amendment 8, which would insert
subsections 12(1), (1A) and (1B). This amendment ensures that these new
subsections do not apply to statements of belief which are malicious, that a
reasonable person would consider threaten, intimidate, harass or vilify a person or
group or which a reasonable person would conclude counsel, promote, encourage or
urge conduct that would constitute a serious offence.
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Amendment 10: Clause 14, page 19 (after line 7)
34. This amendment would insert subclause 14(3) into the Bill.
35. Currently as drafted, clause 14 of the Bill prohibits indirect discrimination on the
ground of religious belief or activity:
a. 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.
b. Paragraph 14(1)(c) further provides that discrimination only occurs when the
relevant condition, requirement or practice is not reasonable.
c. This reflects the need for people to be able to impose reasonable conditions in
certain situations, even where such conditions may disadvantage a group of
people on the basis of their religious belief or activity.
36. Due to a technical error, clause 14 as drafted does not address the burden of proof
relating to establishing whether a condition, requirement or practice is reasonable.
37. Subclause 14(3) is intended to clarify that, for the purposes of subclause 14(1), the
person who imposes, or proposes to impose, the condition, requirement or practice
has the burden of proving that the condition, requirement or practice is reasonable.
38. This ensures that the burden of proof lies with the person who is imposing or
proposing to impose the condition, rather than with the person who is complaining of
indirect discrimination on the ground of religious belief or activity.
39. This is consistent with provisions that prohibit indirect discrimination that are
contained in the Age Discrimination Act 2004, the Disability Discrimination Act
1992 and the Sex Discrimination Act 1984.
Amendment 11: Clause 18, page 22 (line 19)
40. This amendment would replace the reference to section 12 in subclause 18(4) with a
reference to subsection 12(1). This amendment is consequential to Amendment 8
which would create new subclause 12(1) which relates to statements of belief which
do not constitute discrimination for the purposes of specified Commonwealth
legislation.
Amendment 12: Clause 19, page 23 (after line 26)
41. This amendment would insert new subclause 19(3) into the Bill.
42. 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.
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43. The new subclause 19(3) is intended to clarify that the provision does not apply to
reasonable management action that is:
a. carried out to comply with legal obligations under Australian law; or
b. authorised under Australian law.
44. This is consistent with the policy intent of the provision, which did not seek to
classify reasonable management action as discrimination. Accordingly, this
amendment is intended to provide certainty to employers and to remove all doubt that
the Bill will not make it unlawful for reasonable management action to be
undertaken. This is intended to ensure that employers are confident in their ability to
take reasonable action that directly complies with their legal obligations, including
under workplace health and safety laws.
45. For the purposes of this subclause, to remove all doubt, the words 'Australian law'
refer to a law of the Commonwealth, a State or a Territory.
Amendment 13: Clause 40, page 38 (lines 4 to 8)
46. This amendment would amend subclause 40(2) of the Bill.
47. 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 certain
conduct, if 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. Such conduct must be undertaken in accordance with a publicly available
policy.
48. This amendment would insert requirements for this publicly available policy,
consistent with the current guidance for educational institutions under
paragraph 11(1)(b). Namely, the amendment specifies that the policy:
a. outlines the religious body's position in relation to particular religious beliefs
or activities; and
b. explains how the position is or will be enforced by the religious body; and
c. is publicly available.
49. This is consistent with the policy intent of the provision, which sought to balance the
right of religious bodies to maintain their religious ethos, while ensuring that the
position of a religious body was publicly available. As clause 40 relates to
accommodation, rather than employment, it is not necessary to include a requirement
that the policy be available at the time employment opportunities become available.
These requirements are consistent with the comments of the Expert Panel as set out
in the 2018 Report of the Religious Freedom Review.
Amendment 14: Clause 40, page 38 (lines 9 and 10)
50. This amendment would omit subclause 40(3). As Amendment 13 provides further
detail in the provision about the requirements for a policy, it is not considered
necessary for the Minister to have a power to determine any requirements for
policies.
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Amendment 15: Clause 40, page 38 (lines 27 to 31)
51. This amendment would amend subclause 40(5) of the Bill.
52. Subclause 40(5) 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 certain
conduct, if that body engages in the conduct to avoid injury to the religious
susceptibilities of adherents of the same religion as the body.
53. This amendment would insert requirements for this publicly available policy,
consistent with the guidance for educational institutions under subclause 11(1)(b).
Namely, the amendment specifies that the policy:
a. outlines the religious body's position in relation to particular religious beliefs
or activities; and
b. explains how the position is or will be enforced by the religious body; and
c. is publicly available.
7. This is consistent with the policy intent of the provision, which sought to balance the
right of religious bodies to maintain their religious ethos, while ensuring that the
position of a religious body was publicly available. As clause 40 relates to
accommodation, rather than employment, it is not necessary to include a requirement
that the policy be available at the time employment opportunities become available.
These requirements are consistent with the comments of the Expert Panel as set out in
the 2018 Report of the Religious Freedom Review.
Amendment 16: Clause 40, page 38 (lines 32 and 33)
54. This amendment would omit subclause 40(6) of the Bill. As amendment 8 provides
further detail in the provision about the requirements for a policy, it is not considered
necessary for the Minister to have a power to determine any requirements for
policies.
Amendment 17: Page 40 (after line 11), after clause 44
55. This amendment would insert a new provision to the Bill at clause 44A that specifies
that the Australian Human Rights Commission (the Commission) must publish on its
website a notice containing certain information in relation to a decision under clause
44 within one month of the decision being made.
56. New subclauses 44A(1)(a) to (d) outline what must be included in the notice.
57. This new subclause is consistent with the Commission's notice requirements in
relation to making temporary exemptions under the Age Discrimination Act, the
Disability Discrimination Act and the Sex Discrimination Act. This amendment
would improve transparency of decisions made by the Commission in relation to
applications for temporary exemptions and allow appropriate public scrutiny of such
decisions.
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Amendment 18: Clause 47, page 40 (line 26)
58. This amendment would omit reference to 'or the Minister' in clause 47 of the Bill.
59. This amendment will have the effect of removing the Minister's power to revoke or
vary a temporary exemption granted by the Commission. This is consistent with the
position in the Age Discrimination Act, the Disability Discrimination Act and the
Sex Discrimination Act, in which only the Commission has the power to make,
revoke or vary exemptions.
Amendment 19: Clause 48, page 41 (line 5)
60. This amendment would amend subclause 48(b) of the Bill to substitute 'section 47;'
with 'section 47.' This amendment is consequential to Amendment 20, which
removes subclause 48(c).
Amendment 20: Clause 48, page 41 (line 6)
61. This amendment would remove subclause 48(c) of the Bill which provides that an
application may be made to the Administrative Appeals Tribunal for review of
decisions of the Minister under clause 47. This amendment is consequential to
Amendment 18, which removes the power of the Minister to vary or revoke
temporary exemptions under clause 47.
Amendment 21: Clause 68, page 56 (line 3)
62. This amendment would replace the reference to 'to the extent that the law' in
subclause 68(1) with 'that'. This would render subclause 68(1) consistent with
equivalent provisions in the Age Discrimination Act, Disability Discrimination Act
and the Sex Discrimination Act.
Amendment 22: Clause 68, page 56 (line 5)
63. This amendment would insert a reference to section 11 in the Note under
subclause 68(1).
64. Clause 68 addresses the relationship between thids Bill and State and Territory laws.
While it is not generally intended that the Bill will cover the field, clauses 11 and 12
do prevail over certain Commonwealth, State and Territory laws in specified
circumstances. This amendment would insert a reference to clause 11 into the Note
under subclause 68(1), alongside the existing reference to clause 12, to make clear
that subclause 68 does not detract from the operation of clauses 11 or 12.
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