On 2 December 2021, the Senate referred the provisions of the Religious Discrimination Bill 2021 (the religious discrimination bill), the Religious Discrimination (Consequential Amendments) Bill 2021 (the consequential amendments bill) and the Human Rights Legislation Amendment Bill 2021 (the human rights legislation bill) (referred to collectively as ‘the bills’) to the Senate Legal and Constitutional Affairs Committee for inquiry and report by 4 February 2022.
Conduct of the inquiry
In accordance with usual practice, the committee advertised the inquiry on its website and wrote to organisations inviting submissions by 7 January 2022. The committee received 221 submissions, listed at Appendix 1.
The committee also received five form letters. An example of each of these letters is available on the committee’s webpage. A list of these letters and the total number received of each is also available at Appendix 1.
The committee held two public hearings in Canberra on 20 and 21 January 2022. A list of the witnesses who appeared is at Appendix 2.
The committee recognises that people of religious faith and people of no religious faith often have deeply held, sometimes complex, personal views about religious belief and activity that are inherent in many, if not all, aspects of their lives and which can be particularly enlivened during processes such as a Senate committee inquiry. The committee extends its thanks to those who engaged with the inquiry process in a respectful and constructive manner. The committee appreciates the variety of views put to it, and the willingness of inquiry participants to discuss their experiences.
Structure of this report
The committee appreciates that, together, the bills form a multi-faceted package that engages a variety of issues. In this report, the committee has focused its attention on the areas that appeared to garner the most support from or raise the most concern amongst stakeholders during the course of the inquiry.
This report comprises five chapters, as follows:
Chapter 1 outlines the administrative details of the inquiry, background to the inquiry and the key provisions of the bills.
Chapter 2 considers a mechanism to protect against religious discrimination, in principle and in relation to specific legislative reform.
Chapter 3 discusses issues pertaining to human rights and discrimination.
Chapter 4 explores a number of other issues, such as the constitutionality of the bills, jurisdictional implications and the definitions of some key terms. And,
Chapter 5 outlines the committee's view and recommendations.
Overview of the bills
The legislative package
Together, the three bills seek to implement the recommendations of the Expert Panel on Religious Freedom in the Religious Freedom Review and implement greater protections from religious discrimination in federal legislation.
The religious discrimination bill
The religious discrimination bill would create new primary legislation implementing a range of measures to prohibit discrimination on the basis of a person’s religious belief or activity.
Upon introducing the bill in the House of Representatives on 25 November 2021, the Prime Minister stated that the religious discrimination bill would ‘fix an important weakness in our discrimination laws’. He noted that while:
the Commonwealth has a Sex Discrimination Act, a Racial Discrimination Act, a Disability Discrimination Act and an Age Discrimination Act…there is no standalone legislation to protect people of religious, or faith against discrimination. Or indeed for those who choose not to have a faith or religion.
The explanatory memorandum (EM) states that protections against discrimination on the grounds of religion under existing Commonwealth, state and territory laws ‘are piecemeal, have limited application and are inconsistent across jurisdictions’.
The Prime Minister explained that ‘the introduction of this bill, the Religious Discrimination Bill 2021, will fix this’. He stated that ‘this bill seeks to protect people of faith from discrimination on the basis of their religion in daily life, including work, education, buying goods and services and accessing accommodation’.
The EM describes the ‘wide range of areas of public life’ where the religious discrimination bill would prohibit discrimination on the basis of a person’s religious belief or activity, such as ‘employment, education, access to premises, the provision of goods, services and facilities, and accommodation’. The effect of this would be to ‘ensure that all people are able to hold and manifest their faith, or lack thereof, in public without interference or intimidation’.
The EM states another objective of the religious discrimination bill is:
to promote attitudinal change, to ensure that people are judged on their capacity and ability, rather than on generally unfounded negative stereotypes that some may have about people who hold certain religious beliefs or undertake certain religious activities.
According to the EM, the religious discrimination bill seeks ‘as far as possible’ to be consistent with existing prohibitions on discrimination in the Age Discrimination Act 2004 (Age Discrimination Act), Disability Discrimination Act 1992 (Disability Discrimination Act) and the Sex Discrimination Act 1984 (Sex Discrimination Act). However, the EM notes that some alterations have been made ‘to reflect the distinct nature of religious belief or activity as a protected attribute’.
According to the Attorney-General’s Department (AGD), subject to a number of exceptions within the bill, it ‘does not override or interfere with state or territory legislation’. The AGD said that clause 68 would clarify that the bill ‘is not intended to exclude or limit the operation of a state or territory law, to the extent that the law is capable of operating concurrently with the bill’.
Religious Discrimination Commissioner
The religious discrimination bill would create the office of the Religious Discrimination Commissioner at the Australian Human Rights Commission (AHRC). The new Religious Discrimination Commissioner would have responsibility for freedom of religion, including discrimination on the grounds of religious belief or activity, at the AHRC. The EM states that the Commissioner would also promote understanding of and compliance with the religious discrimination bill as well as advocate, inquire into and report on issues pertaining to freedom of religion in Australia.
If enacted, the religious discrimination bill would facilitate the submission of complaints to the Commission, ‘about unlawful discrimination on the ground of religious belief or activity’. Complaints could be about either:
direct discrimination – when a person (or group of people) is treated less favourably than others because of their background or certain personal characteristics (clause 13); or
indirect discrimination – when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute (clause 14).
The Commission would not be ‘a court and does not have the power to decide if a complaint amounts to unlawful discrimination’. Rather, its role would be to hear from all parties and help resolve complaints, and:
If the President of the Commission is satisfied that a complaint cannot be resolved, the complaint will be terminated. In some cases, such as where a complaint cannot be resolved by conciliation, a complainant may be able to take the complaint to court. The court is then able to decide whether the subject of the complaint amounts to unlawful discrimination.
The bill would require the new Religious Discrimination Commissioner to conduct a review of the Act within two years of commencement, to ensure the government understands the impacts of the bill and identifies any necessary improvements. The AGD advised that the review would also:
…ensure that any necessary modifications following the Australian Law Reform Commission (ALRC) review of religious exceptions can be identified and made. It will also provide an opportunity for stakeholders to identify any concerns about the operation of the Bill.
Consequential amendments bill
The consequential amendments bill would amend the Australian Human Rights Commission Act 1986 (AHRC Act), the Civil Aviation Act 1988 (Civil Aviation Act), Fair Work Act 2009 (Fair Work Act), Inspector-General of Intelligence and Security Act 1986 (IGIS Act), and the Sea Installations Act 1987 (Sea Installations Act).
In his second reading speech, the Hon Alan Tudge MP stated that the amendments to these Acts would ‘ensure that discrimination on the basis of religious belief or activity is treated in the same manner as discrimination under existing antidiscrimination law’. The EM describes these amendments as being ‘necessary to support the implementation’ of the religious discrimination bill.
The consequential amendments bill would enable the AHRC to extend its inquiry and conciliation functions to unlawful discrimination under the Religious Discrimination Act (if enacted). It would also confer on the Religious Discrimination Commissioner the same functions, powers, duties and privileges of the existing Commissioners.
The consequential amendments bill also contains a number of amendments to the religious discrimination bill contingent upon the passage of the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic), which passed the Victorian Parliament on 3 December 2021.
Human rights legislation bill
The human rights legislation bill would amend the Age Discrimination Act, Charities Act 2013 (Charities Act), Disability Discrimination Act, Marriage Act 1961 (Marriage Act), Racial Discrimination Act 1975 (Racial Discrimination Act) and the Sex Discrimination Act to enhance protection of the right to freedom of religion within existing Commonwealth legislation.
In his second reading speech, the minister stated that the human rights legislation bill would amend objects clauses within existing anti-discrimination Acts ‘to reflect the equal status of all human rights’. The amendments, he explained, would:
ensure that each federal antidiscrimination act has an objects clause which recognises the indivisibility and universality of all human rights, the equal status of all human rights in international law and the principle that every person is free and equal in dignity and rights.
These amendments will ensure that appropriate regard is given to all human rights in antidiscrimination law, including the right to freedom of religion. This reflects a key principle in international law—that all human rights must be treated with equal importance, and no rights should be prioritised at the expense of any other.
The EM to the human rights legislation bill identifies that the bill’s second purpose lies in its proposed amendments to the Charities Act and Marriage Act:
the freedom to manifest religion or belief is a fundamental aspect of the right to freedom of religion. This includes manifestation through establishing and maintaining places of worship and appropriate charitable institutions. It is imperative that Australian laws do not unduly burden this freedom.
Accordingly, this Bill makes amendments to the Charities Act and the Marriage Act to clarify the application of aspects of those Acts. These amendments go directly to the ability of individuals and faith-based organisations to manifest their religious beliefs. 8. Faith-based charities play a vital role in Australian civil society. The amendments in this Bill recognise that the law must protect the reasonable ability for such faith-based charities to manifest their faith and express their religious beliefs, without threat to their charitable status.
The solemnisation of marriage has particular significance for people of faith and can be an important way in which faith is manifested. The amendments in this Bill recognise that religious educational institutions should not be compelled to provide goods, services or facilities in support of marriages which are not in accordance with their religious beliefs.
Religious Freedom Review
On 22 November 2017, the then Prime Minister, the Hon Malcolm Turnbull MP, announced a review into religious freedom in Australia. The review was conducted by an Expert Panel, chaired by the Hon Philip Ruddock, and comprising of Emeritus Professor Rosalind Croucher AM, the Hon Dr Annabelle Bennett AC SC, Father Frank Brennan SJ AO and Professor Nicholas Aroney.
The review was announced in response to proposals for legislative reform to protect freedom of religion during the debate on marriage equality, recognising that any legislative reforms to protect freedom of religion should be undertaken carefully to avoid the risk of unintended consequences. The terms of reference for the review required the Expert Panel to examine and report on whether Australian law (Commonwealth, state and territory) adequately protects the human right to freedom of religion. In doing so, the Expert Panel was required to consider the intersections between the enjoyment of the right to freedom of religion and other human rights.
The Expert Panel received some 15,620 submissions and conducted around 90 consultation meetings with 180 individuals and groups. In its final report, which was provided to the then Prime Minister on 18 May 2018, the Expert Panel made 20 recommendations to enhance the protection of freedom of religion in Australia, both through legislative amendments to Commonwealth, state and territory laws, and through non-legislative measures.
The religious discrimination bill seeks to implement recommendations 3, 15 and 19 of the Religious Freedom Review, while the human rights legislation bill would implement recommendations 3, 4 and 12.
Exposure draft consultation
The bills currently before the Parliament are the third publicly released iteration of the legislation, following on from two exposure draft consultation processes when past iterations of the bills were released for public consultation. The first exposure draft consultation commenced on 29 August 2019; over 6,000 submissions were received, 270 of which were published.
On 10 December 2019, a second exposure draft consultation process commenced on a second iteration of the bills. Submissions to the second process closed on 31 January 2020. Approximately 7,000 submissions were received to this inquiry, and 290 submissions were published.
The current package of bills was also informed by consultation, including roundtable discussions and meetings with interested stakeholders such as religious, legal, community and lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) groups.
The AGD advised that the government sought legal advice on the current legislative package, where appropriate, and ‘considers that the Bills are appropriately supported by the Commonwealth’s Constitutional powers’.
Religious discrimination bill
The religious discrimination bill contains nine parts:
Part 2—Conduct etc. that is not discrimination;
Part 3—Concept of discrimination on the ground of religious belief or activity;
Part 4—Unlawful discrimination;
Part 6—Religious Discrimination Commissioner;
Part 7—Functions of the Australian Human Rights Commission;
Part 8—Application and constitutional provisions; and
Proposed clause 3 would give effect to Recommendation 3 of the Religious Freedom Review by recognising ‘the indivisibility and universality of human rights, and their equal status in international law’.
Proposed subclause 5(1) contains several definitions, such as:
‘qualifying body’ – an authority or body that is 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 the engaging in of an occupation.
‘religious belief or activity’ – holding or not holding a religious belief, and engaging in, not engaging in or refusing to engage in religious activity’.
‘religious body’ – an educational institution, registered charity or any other kind of body (other than a body that engages solely or primarily in commercial activities) that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion.
‘statement of belief’ – a statement:
of a religious belief held by a person, made in good faith, by written or spoken words or other communication (other than physical contact), by the person, and a belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion; or
of a belief held by a person who does not hold a religious belief, made in good faith, by written or spoken words or other communication (other than physical contact), by the person, and a belief that the person genuinely considers to relate to the fact of not holding a religious belief.
Subclause 5(2) would clarify that religious activity does not include an activity that is unlawful.
Clause 6 would extend the meaning of ‘ground’ by articulating discrimination on the grounds of religious belief or activity:
on the ground of a characteristic that people who hold or engage in the religious belief or activity generally have; and
on the ground of a characteristic that people who hold or engage in the religious belief or activity are generally presumed to have; and
on the ground of the religious belief or activity that a person holds or engages in; and
on the ground of the religious belief or activity that a person has held or engaged in in the past, whether or not the person still holds or engages in the religious belief or activity; and
on the ground of the religious belief or activity that a person is thought to hold or engage in, whether or not the person holds or engages in the religious belief or activity; and
on the ground of the religious belief or activity that a person is thought to have held or engaged in in the past, whether or not the person has held or engaged in the religious belief or activity in the past.
Part 2 of the religious discrimination bill would provide that certain conduct is not discrimination, for example certain conduct by religious bodies, conduct to meet a need or disadvantage, and statements of belief.
Clause 7 of the bill would specify that the following activities by a religious body would not be discrimination:
engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion; or
by engaging, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body.
Subclause 7(6) would require that where the conduct is engaged in by an education institution (that falls within the definition of a religious body):
the conduct must be in accordance with a publicly available policy; and
if the Minister determines requirements [by legislative instrument under subclause (7)]…the policy, including in relation to its availability, must comply with the requirements.
Clause 8 sets out certain conduct by religious hospitals, aged care facilities, accommodation providers and disability service providers not covered by clause 7, including:
establishing, directing, controlling or administering a hospital or aged care facility; or
if the religious body solely or primarily provides accommodation—the provision of accommodation; or
establishing, directing, controlling or administering a camp or conference site that provides accommodation; or
if the religious body solely or primarily provides services to people with disability—the provision of the services.
Clause 9 would provide that conduct engaged in by religious hospitals, aged care facilities, accommodation providers and disability services providers would not be discrimination in relation to employment or partnerships if the body has:
engaged in good faith; and
engaged in accordance with a publicly available policy; and
if the Minister determines requirements (by legislative instrument under subclause (7)), complied with the requirements.
In addition, under clause 9, these bodies would not discriminate against a person in relation to employment or partnerships if:
a person of the same religion as the body could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of that religion; or
the body engages, in good faith, in the conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body.
Clause 10 would provide that a person does not discriminate by engaging in reasonable conduct intended to meet a need arising out of a person or group’s religious belief or activity, or to reduce a disadvantage experienced by a person or group based on their religious beliefs or activities.
The AGD explained that the conduct protected by clause 10 would be legitimate differential treatment, which ‘must be reasonable in the circumstances and consistent with the purposes of the bill’. The provision is to:
…ensure that programs, policies and other conduct aimed at ensuring the equality of, and full participation by, people of faith in public life are supported and not otherwise affected by the provisions of this Bill.
Clause 11 would permit educational institutions to preferentially employ people who hold or engage in a particular religious belief or activity. The preference may be given to people of any, or no, religion, as long as the preference is given in good faith and in accordance with a publicly available policy, regardless of relevant state or territory law.
The AGD submitted that a policy may be made public through ‘any appropriate means’, for example at the time of making an employment application, part of a package of material associated with an advertised role, or a by providing a printed copy to anyone who requests it.
Clause 12 would provide that statements of belief that satisfy the definition of that term in clause 5(1) would not constitute discrimination under existing Commonwealth, state or territory anti-discrimination law, nor would they contravene subsection 17(1) of the Anti-Discrimination Act 1998 (Tas) (Tasmanian Anti-Discrimination Act) or a specified provision of a law prescribed in a disallowable instrument for the purposes of this clause.
The EM states that clause 12 would provide ‘a defence to a complaint of discrimination made in relation to the statement in and of itself’. This provision ‘is not intended to impact the meaning or interpretation of other anti-discrimination law, or the tests of direct or indirect discrimination. The operation of the provision would be such that ‘although the statement of belief is not, in and of itself, discriminatory, this clause will not affect the determination of whether associated conduct constitutes discrimination’.
The AGD clarified that the protection afforded by clause 12 applies only to statements (whether written, spoken, or through other forms of communication), and does not extend to conduct which may be discriminatory.
Subclause 12(2) would excise statements that are malicious or that ‘a reasonable person would consider would threaten, intimidate, harass or vilify a person or group’ or that advocate for the commission of a serious criminal offence from the protection outlined in subclause 12(1). While ‘vilify’ is defined in subclause 5(1) to mean ‘incite hatred or violence towards [a] person or group’, ‘threaten’, ‘intimidate’ and ‘harass’ are undefined by the bill. The EM states that these words are intended to be interpreted in accordance with their ordinary meaning.
The AGD explained the judicial process which may take place in considering clause 12:
As clause 12 is a federal defence, state and territory tribunals may be unable to consider matters where a defence under this clause is raised in relation to a claim of discrimination under a state or territory anti-discrimination law. However, states and territories each have competent courts. If their legislation provides a barrier to complainants accessing these – in lieu of a tribunal – it is open to states and territories to make amendments to their legislation.
Part 3 of the religious discrimination bill describes discrimination on the grounds of religious belief or activity. It would prohibit both direct discrimination and indirect discrimination on the ground of religious belief or activity, ensuring that treating a person less favourably because of their religious belief or activity (clause 13), or imposing unreasonable conditions, requirements or practices which have the effect of disadvantaging people of a particular religious belief or activity (clause 14) are unlawful in the areas of public life covered by the bill.
The EM notes that Part 3 clarifies that certain conduct is not covered by the prohibition of discrimination under the religious discrimination bill. It states that under Part 2, conduct engaged in by religious bodies in accordance with their faith and reasonable conduct intended to meet a need or reduce a disadvantage arising out of a person or group’s religious belief or activity would not constitute discrimination on the grounds of religious belief or activity.
Clause 15 would prohibit discrimination by a qualifying body (as defined in subclause 5(1)) in the imposition of qualifying body rules. The EM illustrates examples of entities that might fall within this definition, as follows:
Examples of qualifying bodies include bodies which certify or register professionals such as lawyers, teachers, accountants or health practitioners. In addition, universities and vocational education and training providers, such as TAFEs, would constitute qualifying bodies to the extent that they are empowered to grant authorisations or qualifications that are needed for, or which facilitate, the practice of a profession, trade or occupation. For example, a university which confers medical degrees which are required for the practice of medicine would be a qualifying body in relation to the conferral of those qualifications.
Examples of qualifying body conduct rules may include professional or registration standards or policies which require persons to engage, or not engage, in certain behaviour in order to receive or maintain their qualification or authorisation.
The protection against discrimination in clause 15(1) would protect against the imposition of conditions, requirements or practices (qualifying body conduct rules) that would limit the ability of professionals or members of a trade or occupation to make statements of belief in their personal capacity. The provision is limited by three circumstances, namely:
the protection extends only to making a statement of belief outside of a person practising their profession, trade or occupation and does not otherwise affect the ability of qualifying bodies to regulate religious expression;
if compliance with the qualifying body conduct rule is an essential requirement of the profession, trade or occupation; or
if the statement of belief would be considered by a reasonable person to threaten, intimidate, harass or vilify a person or group, or would encourage the commission of a serious offence.
Clause 16 would extend the application of the religious discrimination bill (except Part 2 and clause 15) to people who have an association with an individual who holds religious beliefs or engages in religious activities. Subclause 16(3) would allow a body corporate to make a claim of religious discrimination if it has experienced unlawful discrimination due to the religious beliefs or activities of a natural person with whom it is closely associated.
Clause 17 would clarify that where the discriminator has two or more reasons for a discriminatory act, the discriminatory reason need only be one of the reasons for the act, whether or not it is the dominant or a substantial reason for the doing of the act.
Part 4 of the religious discrimination bill sets out when discrimination on the ground of a person’s religious belief or activity is unlawful (Divisions 2 and 3) and the associated exceptions (and exemptions) in certain circumstances (Division 4).
Divisions 2 and 3 of Part 4 would provide that it is unlawful to discriminate on the ground of religious belief or activity in relation to:
work, including employment (clause 19), partnerships (clause 20), the activities of qualifying bodies (clause 21), registered organisations (clause 22) and employment agencies (clause 23);
access to premises (clause 25);
the provision of goods, services and facilities (clause 26);
accommodation (clause 27);
the disposal of an estate or interest in land (clause 28);
membership of clubs (clause 30);
requesting or requiring certain information (clause 31); and
the administration of Commonwealth laws and programs (clause 32).
Clause 33 would enable a person to seek civil remedy against another if the other person has engaged in ‘victimisation’. Victimisation occurs when a person subjects, or threatens to subject, another person to detriment because they believe the other person has taken, or proposes to take, some form of action under this bill. This civil remedy would operate separately from the criminal provision for victimisation in clause 50.
Division 4 of Part 4 outlines exceptions and exemptions, including:
where a reasonable person would conclude that the first person has expressed a particular belief that is counselling, promoting, encouraging or urging conduct that would constitute a serious criminal offence (clause 35);
in relation to charitable organisations’ rules governing the conferral of charitable benefits (clause 36);
conduct in direct compliance with certain Commonwealth, state and territory legislation including provisions relating to law enforcement, national security or intelligence (clause 37);
conduct in direct compliance with orders of court or tribunals, determinations or industrial instruments (clause 38); and
in relation to work, specifically in employment relating to domestic duties or in an employment or partnership setting where a person’s religious belief or activity renders them unable to carry out the inherent requirements of that employment or partnership (clause 39); and
other aspects of private life, such as exceptions for share houses, religious camps or conference sites and the disposal of land by gift or through wills, clubs where membership is restricted to persons who hold or engage in a particular religious belief or activity and voluntary bodies (clauses 40-43).
Part 4 would allow the AHRC to grant a person or body a temporary exemption from the operation of a provision of Division 2 or 3 by notifiable instrument (clause 44). Clause 47 would provide that temporary exemptions may be revoked by the AHRC or the minister, also by notifiable instrument, while clause 48 would provide applications to the Administrative Appeals Tribunal for review of decisions under clauses 44 and 47.
The AGD explained that protections in Part 4 do not extend to activities that are unlawful, to ensure that the bills do not protect religious activities which are inconsistent with Australian law, including those which may constitute criminal conduct.
Part 5 would establish two offences, for victimisation (clause 50) and discriminatory advertisements (clause 51).
Part 6 of the religious discrimination bill would establish the statutory office of the Religious Discrimination Commissioner at the AHRC. The EM states that Part 6 of the bill is based on equivalent provisions governing the offices of the Age Discrimination Commissioner, Disability Discrimination Commissioner, Race Discrimination Commissioner and the Sex Discrimination Commissioner.
Part 7 would confer functions on the AHRC in relation to discrimination on the ground of religious belief or activity. The EM notes that the provisions of Part 7 reflect analogous provisions in existing anti-discrimination law, including the Age Discrimination Act, Disability Discrimination Act, Racial Discrimination Act and the Sex Discrimination Act.
Complaints of discrimination could be received and acted upon by the AHRC, under the consequential amendments bill (see paragraphs 1.76).
Part 8 outlines the application and constitutional provisions of the religious discrimination bill.
Clause 64 explains the constitutional basis for the bill, namely that it would give effect to Australia’s obligations under the:
International Convention on Civil and Political Rights;
International covenant on Economic, Social and Cultural Rights;
Convention on the Rights of the Child;
International Convention on the Elimination of All Forms of Racial Discrimination ;
ILO Convention concerning Discrimination in respect of Employment and Occupation (No.111); and
ILO Convention concerning Termination of Employment at the Initiative of the Employer (No. 158).
The EM states that ‘this provision clarifies that the external affairs power is the main constitutional basis’ for the bill.
Consequential amendments bill
The consequential amendments bill contains two schedules:
Schedule 1—Amendments consequential on the enactments of the Religious Discrimination Act 2021; and
Schedule 2—Contingent amendments.
Schedule 1 of the consequential amendments bill would amend the AHRC Act to add the Religious Discrimination Commissioner as a member of the AHRC. These amendments would allow the AHRC to perform functions in relation to the Religious Discrimination Act, including the function of inquiring into, and attempting to conciliate, complaints of unlawful discrimination under that Act.
Amendments to the IGIS Act and further amendments to the AHRC Act under Schedule 1 would ensure that complaints of discrimination on the basis of religious belief or activity in relation to the conduct of intelligence agencies are dealt with by the Inspector-General of Intelligence and Security (IGIS).
Item 13 of Schedule 1 would amend the AHRC Act to require the AHRC to refer complaints relating to discriminatory industrial instruments to the Fair Work Commission. Items 16 to 18 would amend the Fair Work Act to provide that the Religious Discrimination Commissioner may make submissions to the Fair Work Commission in relation to such instruments. Schedule 1 would also amend subsection 351(1) of the Fair Work Act to extend the definition of ‘anti-discrimination law’ to include the Religious Discrimination Act. In effect, this would mean that provision for lawful acts and exceptions under the bills would apply to claims of adverse action because of an employee’s religion.
Further proposed amendments under Schedule 1 include:
amending the Civil Aviation Act to provide that civil aviation regulations may be inconsistent with the Religious Discrimination Act if necessary for the safety of air navigation;
amending the Schedule to the Sea Installations Act to ensure that the Religious Discrimination Act would apply to sea installations in adjacent areas.
The amendments in Schedule 2 were contingent upon the passage of the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) through the Victorian Parliament. This bill was passed on 3 December 2021 and received Royal Assent on 14 December 2021.
Schedule 2 would amend subsection 11(2) of the Religious Discrimination Act to include the Equal Opportunity Act 2010 (Vic) within the definition of ‘a prescribed State or Territory law’.
Human rights legislation bill
The human rights legislation bill contains one schedule, which contains amendments to the:
Disability Discrimination Act;
Racial Discrimination Act;
The proposed amendments to the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act would incorporate an objects clause to provide that in giving effect to the objects of each Act, regard is to be had to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights. Similarly, the proposed amendment to the Racial Discrimination Act would introduce an objects clause to that Act which includes, among other things, these principles.
Schedule 1’s proposed amendments to the Charities Act would clarify that advocacy of a view of marriage as the union of a man and a woman would not, of itself, amount to a ‘disqualifying purpose’.
In addition, the proposed changes to the Marriage Act would clarify that religious schools are not required to make available their facilities, or to provide goods and services, for any marriage, provided that the refusal:
conforms to the doctrines, tenets or beliefs of the religion of the body, or
is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
According to their respective explanatory memoranda, both the religious discrimination and consequential amendments bills would have cost implications for the AHRC. The creation of the statutory office of the Religious Discrimination Commissioner would require additional expenditure for the salary and expenses of the Commissioner, as well as the necessary support staff. In addition, further expenditure would be required for additional complaints handling staff at the AHRC to inquire into, and attempt to conciliate, complaints of discrimination on the ground of religious belief or activity under the bill.
The human rights legislation bill would have nil or an insignificant financial impact on Commonwealth government departments, agencies and the AHRC.
Consideration by other parliamentary committees
Parliamentary Joint Committee on Human Rights (PJCHR)
On 26 November 2021, pursuant to section 7(c) of the Human Rights (Parliamentary Scrutiny) Act 2011, the Attorney-General referred the bills to the PJCHR for inquiry and report by 4 February 2022.
Given the PJCHR’s inquiry occurred concurrently with this committee’s inquiry, and shared the same reporting date, that committee’s considerations and conclusions are not reflected in this report.
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) raised issues regarding significant matters that the religious discrimination bill would defer to delegated legislation and sought the Attorney-General’s advice regarding:
in relation to subclauses 7(7), 9(7), 40(3) and (6):
why the requirements for certain policies relevant to the application of discrimination law, including how the policies are to be made publicly available, have been left to delegated legislation;
whether the bill could be amended to include at least high-level guidance in relation to this matter on the face of the primary legislation;
in relation to the power to prescribe certain state and territory laws under clause 11:
why this power is left to delegated legislation; and
which state or territory laws, if any, are currently intended to be prescribed within regulations made under subclause 11(3);
in relation to the power to exclude certain Commonwealth, state and territory laws from being exempt from the provisions of the bill under subclauses 37(1) and (3):
why this power is left to delegated legislation; and
whether the bill could be amended to include at least high-level guidance in relation to these matters on the face of the primary legislation.
The scrutiny committee further questioned and sought the Attorney-General’s advice as to the broad discretionary powers the bill would provide to the AHRC and the minister with regard to temporary exemptions under clause 44 of the religious discrimination bill, specifically:
why it is considered necessary and appropriate to provide the AHRC with a broad power to grant, vary or revoke exemptions to Divisions 2 or 3 of the bill under clauses 44 and 47;
why it is considered necessary and appropriate to provide the minister with a broad power to vary or revoke exemptions to Divisions 2 or 3 of the bill under clause 47; and
whether the bill can be amended to include guidance on the exercise of the power on the face of the primary legislation, noting the potential for a broad, unconstrained exemption power to undermine the religious discrimination framework.
The scrutiny committee sought advice from the Attorney-General as to:
why it is considered necessary and appropriate to provide the Commission, the Commissioner, or another member of the Commission with civil immunity under clause 72 of the Religious Discrimination Bill 2021 and the Commissioner, or a person acting on their behalf, with civil immunity under section 48 of the Australian Human Rights Commission Act 1986 so that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown.
The scrutiny committee requested the Attorney-General's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.
The scrutiny committee articulated additional concerns with respect to the broad delegation of administrative powers that could arise as a result of the operation of clause 69 of the religious discrimination bill in conjunction with the existing section 19 of the AHRC Act. On this matter it concluded:
The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing the powers and functions of the Commission or the Commissioner to be delegated to any staff member of the Commission or to any other person or body of persons.
At the time of writing, the Attorney-General’s response, along with the scrutiny committee’s conclusions, were yet to be published.