The Morrison Government has introduced the much-awaited Religious Discrimination Bill 2021 (the “Religious Discrimination Bill”), which purports to bring legislative protections for religious belief and activity in line with other areas such as age, disability, sex and race.

Background

The Explanatory Memorandum to the Religious Discrimination Bill states that its purpose is to give effect to three recommendations of the Report of the Expert Panel on Religious Freedom, which delivered its report on 18 May 2018. On its face, the Religious Discrimination Bill prohibits discrimination on the ground of religious belief or activity.

The Religious Discrimination Bill introduces protections for “statements of belief”, which are statements of a religious belief held a person, made in good faith (whether written, spoken or via other communications) that are genuinely considered to be in accordance with the doctrines, tenets, beliefs or teachings of that religion. This definition also includes statements made by a person who does not hold a religious belief which is made in good faith that the person genuinely considers relate to “the fact of not holding a religious belief”. The Religious Discrimination Bill excludes such statements of belief as constituting discrimination for the purposes of other discrimination legislation such as the Sex Discrimination Act 1984 and state legislation such as the Anti-Discrimination Act 1977 (NSW).

In addition, the Religious Discrimination Bill permits faith-based employers to discriminate against employees and potential employees based on their “religious belief or activity”. The Religious Discrimination Bill specifically provides an example of a religious primary school requiring all of its staff and students to practice that religion as permitted discrimination, provided that this requirement is necessary to avoid “injury to the religious susceptibilities of people of that religion”.

However, religious bodies that are engaged solely or primarily in commercial activities are not included in the exceptions. The exceptions also do not apply to the conduct of religious bodies where that conduct is in the course of the administration of hospitals, aged care facilities, accommodation and disability services, except where that body has been established in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. Before

Possible impacts on employers and employees

From the perspective of non-religious employers, the Religious Discrimination Bill introduces protections that make it unlawful for employers to discriminate against another person on the grounds of their religious belief or activity, including through offers of employment, the terms or conditions of employment that are afforded to the employee, and denying or limiting the employee’s access to opportunities for promotion, transfer, training or any other benefit associated with employment.

In addition, the Religious Discrimination limits the way in which “qualifying bodies” can limit the expression of religious beliefs by an individual. Qualifying bodies are authorities or bodies that are empowered to confer, renew, extend, revoke, vary or withdraw an authorisation or qualification that is needed for, or facilitates the practice of a profession, the carrying on of a trade or engaging in an occupation. Dubbed the ‘Folau rule’ in response to the well documented case of Israel Folau (see PCS’ commentary here), this rule has been contentious due to the concern that it would prevent an employer from dismissing an employee for expressing any religious belief. The relevant rule in the Religious Discrimination Bill has been watered down from the original drafting, but holds that a qualifying body will engage in discrimination if:

• it imposes, or proposes to impose, a condition, requirement or practice on persons seeking or holding an authorisation or qualification from the qualifying body that relates to standards of behaviour of those persons; and
• the condition, requirement or practice has, or is likely to have, the effect of restricting or preventing the person from making a statement of belief other than in the course of the person practising in the relevant profession, carrying on the relevant trade or engaging in the relevant occupation.

However, this provision does not apply to statements of belief that are malicious, or that a reasonable person would consider would threaten, intimidate, harass or vilify a person or group.

In addition to the Religious Discrimination Bill, the government has also introduced the Religious Discrimination (Consequential Amendments) Bill 2021, which relevantly for employers will make amendments to the Fair Work Act 2009 (Cth) (the “FW Act”) to recognise the Religious Discrimination Act (once passed) as an anti-discrimination law for the purpose of the general protections provisions contained in section 351 of the FW Act. This bill will also provide for the appointment of a religious discrimination commissioner, and allow individuals to make religious discrimination complaints to the Australian Human Rights Commission.

The Bill is to be put to a vote in the House next week before going to the Senate which will likely see an inquiry into the Bill.

Key takeaways

• The Religious Discrimination Bill, if passed, will restrict certain employers from discriminating against individuals on the basis of “statements of belief” subject to those statements meeting the requirements of the legislation.
• Faith-based employers will be able to discriminate against employees and potential employees based on their “religious belief or activity” without contravening other anti-discrimination legislation, provided that that the requirement is necessary to avoid “injury to the religious susceptibilities of people of that religion”.
• Employees will have greater protections over their religious expressions, and will be able to apply to make a religious discrimination complaint to the Australian Human Rights Commission.

People + Culture Strategies