Govt tweaks draft religious bills

Analysis

Govt tweaks draft religious bills

Legislation seeking to outlaw discrimination on the ground of religion in the federal jurisdiction has been delayed until next year, but in the meantime the government has revised its draft bills and extended the consultation period.

Legislation seeking to outlaw discrimination on the ground of religion in the federal jurisdiction has been delayed until next year, but in the meantime the government has revised its draft bills and extended the consultation period.

The revised drafts were released on 10 December 2019, with the consultation end date now 31 January 2020.

This article outlines the changes made since the original drafts were released in September 2019. It should be read in conjunction with a previous article that detailed the implications for employers of the proposed changes.

Main changes


The revised drafts differ in the following ways that affect most employers from the originals:
 
  • A new definition of whether an employee’s conduct (eg posting on social media) is at or outside work
  • Adding a definition of “vilify”
  • The scope of “religious bodies” is wider, as is their ability to give hiring preference to people with the same religion or religious beliefs
  • A “reasonable person of the relevant religion”, not a court, will become the yardstick for the “reasonable person” test
These changes are explained in greater detail below.

What stays in


The following contents are either unchanged or only altered in trivial ways:
 
  • Making it unlawful for employers to discriminate against employees or job applicants on the ground of “religious belief or activity”. The 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 general provision that “statements of belief do not generally constitute discrimination”, if the statement was made in good faith and in accordance with the doctrines, tenets, beliefs or teachings of the religion.
  • 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 – this has been a controversial provision but it is still there.
  • The provisions that allow the federal legislation to override provisions in state and territory equal opportunity legislation.

Revised “outside work” provisions


The original draft said that employers could not place restrictions on employees expressing their religious beliefs “other than at a time when the employee was performing work on behalf of the employer”. This has been replaced by the words “other than in the course of employment”. The government calls this a “technical amendment” and claims that “the obligation not to restrict employees’ religious expression in their own time does not traverse employers’ obligations in work health and safety and workers’ compensation law about conduct outside work hours (such as on meal breaks and at work social functions)”.

An assumption can be made from this that the test of whether the conduct occurred “in the course of employment” will be similar to the other legislation.

Definition of “vilify”


The first draft had no definition of “vilify”, but it now means “to incite hatred or violence”. The context of it is that the draft specifies that 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 in the course of employment” unless the statement is malicious and/or would harass, threaten, seriously intimidate or vilify a person or group.

Scope of “religious bodies” wider


Religious hospitals, aged care facilities and accommodation providers will now be able to give preference in hiring and other employment matters to people of the same religion/religious views. This covers all types of jobs, not just teaching positions. The government claims that these amendments are in line with provisions in other Commonwealth anti-discrimination Acts and the Fair Work Act 2009.

Also, religious bodies will not discriminate via conduct that was intended to avoid injury to the religious susceptibilities of adherents of their faith.

The definition of “religious bodies” has been extended to include religious charities that are public benevolent institutions (now regardless of whether involved in commercial activities) and other types of religious charities provided that they are not solely or primarily involved in commercial activities.

“Reasonable person” test


Whether a “reasonable person” would be offended, intimidated, humiliated, etc by the conduct is the test typically used in other anti-discrimination legislation, eg sexual harassment. A court will now need to consider whether a person of the same religion could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of the religion. In other words, the religious body itself will decide what they mean, not a court.

Where to from here?


The government has said it will introduce legislation during early 2020 – after previously saying it would be introduced in 2019. As noted above, it will be accepting submissions on the revised drafts until 31 January 2020.
 
Contents of the first drafts were criticised by both people who lobbied for the introduction of legislation and those who opposed introducing it. Some of the provisions criticised by the “supporters” have stayed in. It remains to be seen whether either side will be willing to compromise sufficiently to enable the bills to progress – or whether further amendments will be attempted to achieve that.

Further information

 
Further information on the revised drafts, including the draft bills themselves and a summary of the changes, is available here
 
Submissions on the revised drafts should be emailed to FoRConsultation@ag.gov.au.
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