Discrimination Law update: more protection for religious bodies, more difficulties for other businesses?

16 December 2019

In the wake of Israel Folau’s claim of religious discrimination and then subsequent settlement of his claims against Rugby Australia, the Federal Government has recognised an opportunity to enhance the statutory protection of freedom of religion.

Currently discrimination based on religion alone is lawful under Federal anti-discrimination law, and is rather dealt with under ethnic origin provisions or state and territory legislation.

New Religious Discrimination Bill 2019 (Cth)

On 29 August 2019, the Federal Attorney-General released the first exposure drafts (First Draft) of the Religious Discrimination Bill 2019 (Cth) (the Bill) which will make it unlawful to discriminate on the ground of religious belief or activity in a range of areas of public life.

On 10 December 2019, a second exposure draft of the Bill was released (Second Draft) which made noteworthy amendments to the First Draft particularly in the employment sphere.

Importantly, both the First and Second Drafts of the Bill have been designed to make it unlawful for an employer to discriminate on the grounds of a person’s religious beliefs or activities when hiring or when determining an employee’s terms and conditions of employment. However, due to exceptions in the Bill, in certain circumstances a religious body will not have discriminated against a person.

For instance a discrete, although critical amendment contained within the Second Draft, will allow religious organisations to preference the employment of those who share their faith. Further, the Bill protects statements of belief made in good faith from certain provisions of Commonwealth, State and Territory anti-discrimination law.

Impact for businesses

These changes will mean that religious bodies will be given more freedom to favour adherents of the same religion as the religious body when hiring, without engaging in unlawful discrimination.

It will also arguably mean changes in the behaviour employers can expect from employees. For non religious bodies this may particularly challenging as managing religious statements within workplaces or to customers may create business risks.

To assist the Explanatory Notes for the Second Draft provide the following examples of lawful behaviour:

  1. using the Israel Folau example, it will be lawful for a Christian to say in good faith that unrepentant sinners will go to hell;
  2. a doctor may tell a transgender patient that their religious belief is that God made men and women in his image and that gender is therefore binary;
  3. a religiously affiliated business is able to require senior leaders to hold or engage in a particular religious belief or activity where that is an inherent requirement for their positions;
  4. an employer can ask a prospective employee whether they observe any holy days during which they can’t work to determine if they can fulfil the inherent requirements of the work;
  5. a Catholic doctor may refuse to provide contraception to patients;
  6. an Anglican public benevolent institution could require its employees, including volunteer workers, to uphold and act consistently with Anglican doctrines and teachings at work.

Having regard to the above examples the ability of employers to control employee behaviour are enhanced for religious bodies but arguably confined for other employers who may wish to prevent even good faith religious statements at work.

Broader impact

The Bill marks a change in the political landscape with greater emphasis and protection on religious expression. This may be extremely challenging for businesses as they engage with customers and employees from a diverse society.

The Bill’s emphasis on the importance of religious belief is interesting in the wake of religious institutions and their departure from community norms and expectations surrounding the treatment of children has been so publicly examined and found lacking.

Businesses and religious organisations would be wise to stay alert, informed and seek advice as this area of law develops.

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