Religious Discrimination Bill 2021

20 December 2021

The Federal Government has released the draft Religious Discrimination Bill 2021 which allows religious bodies and schools to make employment decisions based on the employee’s beliefs to preserve the "religious ethos".

The background

The Religious Discrimination Bill 2021 (Bill) was introduced to federal parliament seeking to protect people of faith from discrimination on the basis of their religious belief or activity in daily life, including work and education.

Religious belief or activity is defined broadly to include holding, or not holding, a religious belief and engaging in, not engaging in, or refusing to engage in, religious activity.

In accordance with article 18 of the International Covenant on Civil and Political Rights to which Australia is a signatory, it is a fundamental human right for every person to have freedom of religion and to manifest that religion individually or in community. It is in this context that the bill has been proposed.

The Government proposed the Bill as providing protection from discrimination on the basis of religion and thus coming into alignment with other anti-discrimination legislation. While conferring protections on religious belief and assisting religious bodies it also envisages creation of a religious discrimination commissioner.

Key Provisions – what does it mean?

A religious body can behave consistent with the tenets of its religious doctrine in good faith and to avoid injury to the religious susceptibilities of people of the same religion (s 7).

A religious body means an educational institution, registered charity or other body not primarily engaged in commercial activities that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion.

There are exemptions to the provisions of s 7 for religious hospitals, aged care facilities, accommodation providers and disability service providers.

Thus it is discriminatory to exclude service recipients of religious hospitals, aged care facilities, accommodation providers and disability service providers based on faith.

However, it is not discrimination if a faith-based employer makes a "faith-based decision in relation to employment" to "preserve a religious ethos" regarding employees if they publish a complying publicly available policy (s 9).

Under s 19 employers, other than religious bodies, are not permitted to make faith-based employment decisions.

Students cannot be discriminated against on the basis of religion when accessing educational services.

It is worth noting that in terms of employment, the Bill proposes to override existing state or territory legislation.

A statement of belief does not amount to discrimination unless they are malicious or vilify a person or a group. It would not be constituted vilification where 'a moderately expressed religious view that does not incite hatred or violence' and thus such an expression may be immune from legal action (s 12).

What this means for you

If assented, it would be explicitly unlawful for registered organisations, qualifying bodies and employment agencies to discriminate against individuals on the basis of their religious belief or activity.

However, a range of different rules will apply to religious bodies which will enable them to prefer employing staff of the particular religion. This means religious bodies have a vested interest in closely examining what if any final legislation is passed.

It is important to understand that although conduct under the proposed Bill may not be considered as discrimination, on the other hand, it may be considered direct or indirect discrimination under other anti-discrimination legislation such as the Sex Discrimination Act 1984 (Cth).

With the Bill being referred to the Human Rights Committee impending amendments remain outstanding with various reports due in February 2022 for further Parliamentary debate.

Dr Laura Sowden
Anna Ly
Amber Zhang

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