​Draft religious discrimination bill: potential impact on employers

Analysis

​Draft religious discrimination bill: potential impact on employers

The federal government has released draft legislation seeking to outlaw discrimination on the ground of religion. What does it mean for employers?

With the potential landmark case of footballer Israel Folau not due to be heard until next year, the Federal Attorney-General has released draft legislation seeking to outlaw discrimination on the ground of religion in the Federal jurisdiction.

Final draft legislation is likely to be introduced into Federal Parliament later this year. This article examines how the draft legislation could affect employers if it became the final legislation. 

Overview


The draft legislation is a series of three Bills. The one most relevant to employers is called the Religious Discrimination Bill 2019

This draft bill would make it unlawful for employers to discriminate against employees or job applicants on the ground of “religious belief or activity”. This is defined as holding a (lawful) religious belief or engaging in a (lawful) religious activity, and also NOT holding a religious belief or NOT engaging in a religious activity. In other words, both people of religious faith and those who do not have it (both atheist and agnostic) will be equally protected against discrimination.

Both direct and indirect discrimination are unlawful (see further discussion below). A “reasonableness test” applies to indirect discrimination.

The Australian Human Rights Commission will have the power to enquire into and attempt to conciliate complaints of discrimination. A Freedom of Religion Commissioner will be appointed to the commission. Unresolved complaints may be taken to court, as is the case with complaints made under the other federal anti-discrimination Acts.

Similar to other anti-discrimination provisions


The above provisions are similar to those that apply to existing grounds of unlawful discrimination in the federal jurisdiction – that is race, sex, disability and age. The provisions do not provide for a positive right of “freedom of religion”, which is what some people and lobby groups were seeking.

The definitions used are similar to equal opportunity legislation that already makes religious discrimination unlawful in all states and territories except New South Wales and South Australia. 

Where these provisions merely complement existing legislation and add an extra ground to federal legislation, it can be argued that they should not be controversial. However, the draft package also has some differences, which are discussed below.

But what’s different?


The extra provisions in the draft legislation include the following.

There is a general provision that “statements of belief do not generally constitute discrimination”. The statement must be made in good faith and in accordance with the doctrines, tenets, beliefs or teachings of the religion. Alternatively, it may be made about religion by a person who is not religious, and relates to a belief held by that person directly arising from his/her not holding a religious belief, and is made in good faith.

An employer will not be able to impose a condition (eg in an employment policy, code of conduct or work contract) that prevents or restricts an employee from “making a statement or belief at a time other than when the employee is performing work” unless the statement is malicious and/or would harass, vilify or incite hatred against a person or group. Making potentially offensive comments on social media on a personal account and while not at work appears to fall within the scope of this provision, and if so would not amount to discrimination.

Employers whose annual revenue exceeds $50 million will be able to use the defence that making such statements could cause “unjustifiable financial hardship” to their business – if they can prove it. The same employers will be able to impose standards of dress, appearance or conduct that may restrict religious expression, but again only if they can prove that not imposing them could cause financial hardship.

Editor’s comment: These provisions appear to have taken the circumstances of the Folau case into account. Arguably, Rugby Australia could not argue that he had breached his employment contract when he made his comments on his own social media account – unless it could prove that the comments were malicious or inciteful in the manner described above. On the other hand, it may be able to argue that the loss or threatened loss of corporate sponsors of Rugby Australia that followed the comments amounted to “unjustifiable financial hardship”. Interpretation of this would probably require a test case.

The draft legislation also provides for exemptions from discrimination for health practitioners who conscientiously object to treating patients on religious grounds. Potential examples are refusal to perform abortions, assisted suicides and medical procedures for transgender people. Exemptions for religious educational institutions will include being allowed to only employ people of the same religious faith.

There is also a provision intended to specifically override a provision in the Tasmanian Anti-Discrimination Act 1998. It provides that a statement of religious belief does not breach sec 17(1) of the Tasmanian Act unless it is malicious or likely to harass, vilify, or incite hatred or violence towards others.

Finally, there is a provision that states that a statement of belief does not amount to unlawful discrimination for the purposes of ANY OTHER anti-discrimination legislation (federal, state or territory). The potential impact of this is that statements based on religious beliefs that could offend, insult, intimidate or humiliate others will NOT be unlawful, regardless of the content of state or territory legislation. This is because the new provisions will set a higher threshold – they use the wording of “harassment, vilification or incitement of hatred”.

Compliance with health and safety requirements


Employers will be able to refuse to employ someone if he/she insists on wearing religious clothing that would pose a threat to workplace health and safety requirements.

The standard exemption for employers if a person is unable to perform the inherent requirements of the job because of his/her religious belief or activity will also apply.

What happens next?


The draft legislation has been released for “consultation”, but the final draft version is expected to be introduced into Parliament in late October. 

To make submissions regarding the proposed legislation, and for access to the draft bills, click here

See also: 
Israel Folau: why everyone's all atwitter 
The Israel Folau case: what are the employment law issues
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