This chapter considers issues raised in evidence about the potential discrimination and human rights implications of the bills. The specific issues examined include:
the international human rights framework;
overriding other human rights;
discrimination by religious educational institutions;
human rights for groups and corporations; and
provisions under the Sex Discrimination Act 1984 (Sex Discrimination Act).
In considering these issues, the committee recognises that the Parliamentary Joint Committee on Human Rights (PJCHR) was also referred the package of bills and brings specific expertise to the consideration of the human rights implications. This chapter should therefore be considered in conjunction with the report of the PJCHR.
International human rights framework
Australia is a party to the seven core international human rights treaties:
the International Covenant on Civil and Political Rights (ICCPR);
the International Covenant on Economic, Social and Cultural Rights (ICESCR);
the International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
the Convention on the Elimination of All Forms of Discrimination against Women
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
the Convention on the Rights of the Child (CRC); and
the Convention on the Rights of Persons with Disabilities (CRPD)
The religious discrimination bills directly engage the ICCPR, and, to some extent, the CERD and the CRPD.
Human rights and the religious discrimination bills
The Attorney-General’s Department (AGD) advised that the Commonwealth’s anti-discrimination laws are based on the implementation of these international treaty obligations but noted that these treaties are not self
‑executing, and require domestic legislative implementation to have effect under Australian law.
The primary constitutional basis for implementing these treaties domestically is the power of the Parliament to make laws with respect to external affairs, which extends to the implementation of Australia’s treaty obligations under international law; all of Australia’s discrimination laws were enacted under the external affairs power. The bills would also be implemented under this power.
In addition, in giving effect to the objects of the bills, the AGD pointed to subclause 3(2) of the Religious Discrimination Bill 2021 (religious discrimination bill) which would require that regard be given to the indivisibility and universality of human rights, and their equal status in international law.
Many submitters pointed to ICCPR, which, at Article 18, provides that ‘everyone shall have the right to freedom of thought, conscience and religion’ and continues that:
This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The Australian Muslim Advocacy Network (AMAN) also drew attention to Article 5 of the CERD. The AMAN quoted Article 5:
State Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic group, to equality before the law, notably in the enjoyment of…(vii) the right to freedom of thought, conscience, and religion.
Support for the ICCPR principles and the bills
In the context of international human rights, the bills were considered a positive step forward in meeting Australia’s international human rights obligations, and submitters saw the bills as being integral to the promotion of the ICCPR principles.
The Australian Association of Christian Schools (AACS), for example, argued there is currently a ‘glaring omission’ in the Commonwealth legislative framework, as it does not explicitly protect religious freedom in a manner consistent with the ICCPR. The AACS was of the view that enactment of the bills would ‘fill the gap in discrimination law and improve the human rights protections for all Australians’, while creating better consistency and certainly in the protection of rights across the different states and territories.
The Human Rights Law Alliance (HRLA) said that of the five main equality rights recognised by international law—being race, age, sex, disability and religion—only religion had not been given protection in Commonwealth law and rectifying this was made more important because ‘religious freedom has many unique aspects and protected iterations that other attributes don’t’. The HRLA called for the legislative package to include the proper protection of the following unique religious qualities, as provided for by the ICCPR:
freedom of religious belief and activity is both an individual and collective right;
freedom of religious belief and activity is both a private and a public right;
freedom of religion should only by limited in exceptional circumstances; and
freedom of religious belief and activity includes the right of parents to educate their children in conformity with their own convictions.
In relation to this final point, the AGD also drew attention to Article 18(4) of the ICCPR, which provides that respect be given to the ‘liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.
Christian Schools Australia and Adventist Schools Australia (CSA & ASA) similarly drew attention to this Article and recommended the objects of the religious discrimination bill be amended to include Article 18(4), in recognition of the ‘strong bi-partisan support for parental choice in education, for many decades’.
Karina Okotel, a law lecturer, supported the bills and submitted that, to give effect to the obligations in Article 18(4), it is necessary to ‘allow religious schools to positively discriminate when engaging staff and volunteers who do not share their beliefs’.
Overriding other human rights
While noting that the religious discrimination bill seeks to implement Article 18 of the ICCPR, several submitters and witnesses argued that the bill, specifically Part 2 (which contains the ‘statement of belief’ provisions), would privilege the right to freedom of religion over other human rights and protected attributes.
The Australian Human Rights Commission (AHRC) endorsed those elements of the religious discrimination bill which would provide protection against discrimination on the ground of religious belief or activity, in an equivalent way to the protection against discrimination on other grounds such as race, sex, disability and age in existing Commonwealth laws. However, the AHRC expressed concerns that the bills, as drafted, go further than required and would elevate one form of speech above others. The AHRC said the bills would:
…provide protection to religious belief or activity at the expense of other rights. The Commission considers that those provisions of the Bill need to be amended or removed, because they limit other human rights in a way that is unnecessary and disproportionate, or are otherwise inconsistent with international human rights law.
The Commission is concerned that clause 12 will permit discriminatory statements of belief to be made, whether they amount to racial discrimination, sex discrimination, discrimination on the ground of disability or on any other ground prohibited by law.
The Australian Discrimination Law Experts Group (ADLEG) held a similar view. Dr Cristy Clark, Member of ADLEG, spoke to the complexity of international human rights law and how the current package of legislation could better be structured within this framework to ensure one right was not elevated over others:
…we have an opportunity to turn to international human rights law in terms of resolving this tricky issue. It is very difficult for the courts to get involved in assessing the genuineness or the validity of peoples' structures of belief, particularly in terms of religious doctrine…But this has been looked at intently in relation to international human rights law under article 18. The resolution there is to place it within a system of human rights protection which gives equal protection to everybody's right so that there's not a special override granted to one set of beliefs over everybody else's beliefs, and also rights to equality, non‑discrimination, employment and education. Once you sit it within that system of balancing then it's not such a concern that people do have a degree of latitude in determining their own views and beliefs.
Interaction with and overriding of existing discrimination protections
The explanatory memorandum (EM) to the religious discrimination bill explains that the bill:
…does not affect the operation of other Commonwealth anti‑discrimination legislation or permit any discrimination on the grounds of an attribute protected by these laws.
This position was, however, disputed by several stakeholders.
The AHRC expressed significant concern that the bills would override existing Commonwealth discrimination legislation, and said that such an approach was ‘not warranted, sets an alarming precedent, and is inconsistent with the stated objects of the Bill, which recognise the indivisibility and universality of human rights’. The AHRC argued that instead, ‘this provision seeks to favour one right over all others’.
ADLEG submitted that ‘the Bill legalises and therefore has the potential to legitimise discrimination on all grounds that are presently proscribed, including race’. The Public Interest Advocacy Centre (PIAC) echoed this view, stating that the bill:
effectively…says that if anyone claims that their view is a religious belief then they really get a free pass and they don't need to comply with discrimination laws that we've had operating for decades in Australia.
Another issue of concern raised in evidence was the manner in which the bills would impact existing protections against other forms of discrimination, at the state and territory level.
Professor Anne Twomey explained that where the Commonwealth has the power to enact a valid Commonwealth law, section 109 of the Constitution provides that the Commonwealth law will prevail over any inconsistent state law, to the extent of the inconsistency, and the inconsistency in the state law considered inoperative. However, section 109 only operates:
…in relation to an inconsistency between valid Commonwealth and State laws. It does not confer upon the Commonwealth Parliament a power to repeal State laws or alter State laws or affect the interpretation of State laws or prohibit the State from enacting certain laws.
The Hon Selena Uibo, Attorney-General and Minister for Justice in the Northern Territory Legislative Assembly, spoke to the adverse consequences which could arise from ‘fragmented’ discrimination laws across Commonwealth and state and territory jurisdictions:
The fragmented nature of the discrimination law across the country is something that we feel needs to be more harmonised. The differences between Commonwealth laws and state and territory laws makes it all the more complex for people to access understanding, support, advice [about] their protections and the complaint mechanisms in order to protect them as Australians. This presents a huge barrier when we're talking about the conversation of justice. I believe that this bill will raise the barrier to access to that justice even higher and more out of reach of the everyday Territorian.
Dr Carolyn Tan, Chairperson, Public Affairs Commission of the Anglican Church of Australia, expressed concern about the statement of belief provisions overriding existing discrimination legislation. Dr Tan explained a statement of belief:
…might not specifically override a clause of this particular legislation, but certainly it could override state and territory religious discrimination components. So that would be a concern. There's nothing that stops people from making statements of belief if you remove section 12. The issue is whether people need to learn to make statements of belief in ways that are not unlawful under other legislation.
Equality Australia spoke to the potential impact of overriding state and territory laws. Mr Ghassan Kassisieh, Legal Director of Equality Australia, explained that:
We think it is accurate that the bill does wind back protections for LGBTI people, for people with disability, for women, for other groups, including people of faith because they are currently protected in a range of ways under state and territory laws—noting the exceptions in New South Wales and South Australia. That's why our position has always been that our laws should protect all of us equally, whether you are a person of faith or not.
The Australian Lawyers Alliance (ALA) shared this view, summarising:
…the RD Bill will weaken existing protections for people who rely on other discrimination laws to protect them from offensive, insulting, humiliating or intimidating conduct, including women, people with disabilities, people from culturally and linguistically diverse backgrounds, and Gay, Lesbian, Bisexual, Transgender, Intersex and Queer (GLBTIQ+) people.
Particular concerns were raised about the impact of clause 11 on the Equal Opportunity Act 2010 (Vic) (Victorian Equal Opportunity Act) and clause 12 on section 17(1) of the Anti-Discrimination Act 1998 (Tas) (Tasmanian Anti-Discrimination Act).
Clause 11 seeks to override prescribed state and territory laws to allow religious schools to discriminate on the basis of religious belief or activity, in accordance with a written policy. The provision (as amended by clause 11 of the Religious Discrimination (Consequential Amendments) Bill 2021 [consequential amendments bill]) would override the Victorian Equal Opportunity Act following the passage of the Equal Opportunity (Religious Exceptions) Amendment Act 2021 (Vic). In its submission, the Victorian Government explained that the recent amendments to the Equal Opportunity Act (which clause 11 seeks to override):
…removes the ability for religious bodies and schools to discriminate in employment, running a school and the provision of government-funded goods and services because of a person’s sex, sexual orientation, lawful sexual activity, marital status, parental status, or gender identity. By narrowing key aspects of the religious exceptions – while maintaining the ability to discriminate on the grounds of religious belief is certain circumstances – , the EO Amendment Act strikes a fair balance between the right to freedom of religion and the right to equality and non-discrimination.
Religious organisations and schools will be able to discriminate in employment based on a person’s religious belief or activity where conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the role, the person cannot meet that inherent requirement because of their religious belief or activity, and the discriminatory action is reasonable and proportionate in all the circumstances. This new test ensures that staff cannot be discriminated against because of their religious beliefs for reasons that have nothing to do with their work duties.
The Victorian Government asserted that clause 11 ‘would directly undermine recent reforms in Victoria’. It described the measure as ‘an inappropriate and unwarranted intervention by the Commonwealth’ in circumstances where legislative change reflected ‘a clear mandate from the Victorian people, received strong support in the Victorian Parliament and was developed in close consultation with key stakeholders in Victoria’.
PIAC noted that clause 11 would have an impact across multiple jurisdictions, explaining:
Much of the debate up to now has focused on the fact that that is in response, allegedly, to the recently passed Victorian laws. Indeed it would probably make discrimination against teachers easier. It also has implications for Queensland, which has provisions that have existed for almost a decade…It needs to be appropriate in the circumstances, as well as potentially applying in Tasmania and the ACT.
Similar concerns were raised about the impact of clause 12 on section 17(1) of the Tasmanian Anti-Discrimination Act. At present, section 17(1) prohibits conduct which offends, humiliates, intimidates, insults or ridicules another person on fourteen grounds including race, age, disability, sexual orientation, gender identity and relationship status. Equality Tasmania emphasised that that Act ‘has fostered a more inclusive Tasmania’ and described the legislation as a ‘gold standard’. It argued that clause 12 would undermine the protections in section 17(1) and could make Tasmania ‘a crueller and less kind place to live’.
Mr Graeme Edgerton of the AHRC sought to clarify some misunderstanding about the operation of—in particular—Tasmanian anti‑discrimination law. Mr Edgerton observed that:
There are two points to understand about the Tasmanian law. One is that I think there's a misapprehension about the threshold; it's been portrayed as a very low threshold for a complaint to be successfully made. Case law in Tasmania about section 17 says it should be interpreted in the same way as section 18C of the Racial Discrimination Act. In that sense it should apply only to conduct that has profound and serious effects, not be likened to mere slights. So the threshold for section 17 is higher than I think people expect.
The second thing to note about Tasmania is that there's already a free‑speech defence available, in section 55 of the Tasmanian act. That defence allows people to engage in public acts that are done in good faith for any purpose in the public interest. That defence was not tested in the Porteous case. It's a defence that's currently on the Tasmanian books and it's another good reason why clause 12 is not necessary, because the good-faith requirement is already in Tasmanian law.
The AGD submitted that the explicit inclusion of subsection 17(1) under clause 12 is due to the ‘broad scope and demonstrated ability of subsection 17(1) to affect freedom of religious expression’.
Statements of belief
The operation and impact of the statement of belief provisions, at clause 12 of the religious discrimination bill, were the subject of much debate during the course of the inquiry (see also chapters 2 and 4).
The committee heard repeated concerns that clause 12 would provide legal protection for the making of statements that are offensive, humiliating and otherwise discriminatory. As PIAC articulated:
Part of the concern we've got with the way this is drafted is that it explicitly seeks to permit things that are otherwise discriminatory. That's its purpose. Otherwise there is no need to have it there. But also our concern is that it is deliberately drafted in a way to capture fringe or radical views. It's entirely subjective in its approach. It can capture views that may be disavowed by other members of that religion or even leaders of that religion, because it's seeking to really capture the most extreme views that no-one else would agree with, as long as the particular individual genuinely considers them to form part of their faith. To have crafted something so broad, it seems really only intended to capture views that are otherwise radical. Then, in terms of whether or not it takes away other rights, that's why it's there; it deliberately seeks to do it.
The committee heard many personal accounts and hypothetical scenarios from LGBTIQA+ advocacy groups, women’s groups, organisations advocating on behalf of people with disability, and youth organisations which sought to illustrate the harm that could arise as a result of statements protected by this clause. For instance, Equality Australia provided the following list of statements it regarded could attract protection under clause 12:
a colleague telling another colleague that women must learn to stay silent;
a boss writing in an employee’s book that her lesbianism is sinful;
a teacher telling a student that children born out of wedlock are the product of sin;
a dentist telling his patient that her schizophrenia is caused by evil spirits and that spiritual healing can cure her;
a taxi driver telling a person with a guide or assistance dog that their dog is unclean;
a bus driver telling a passenger that she is oppressed by her faith;
a shop assistant telling a customer that his prophets are not to be revered;
a psychologist telling her client that gay people are broken;
a psychiatrist telling his patient diagnosed with depression that ‘she should be looking forward to the Kingdom of heaven’;
a doctor telling a trans patient that God made men and women and attempts to affirm their gender are wrong;
a medical, support or aged care worker telling a person who is HIV positive that AIDS is a punishment from God;
a lecturer refusing to use a student’s pronouns because he believes her ‘gender to be false’.
Equality Australia submitted that ‘statements of this kind undermine the dignity of everyday Australians going about their lives’ and continued that:
They make workplaces, schools and places where services are provided less welcoming and more hostile places for women, LGBTIQ+ people, people with disability, people of faith and others, increasing barriers to their equal participation in society.
While acknowledging that there would be limitations on the substance of statements that would attract protection under clause 12, Equality Australia suggested that the provision as drafted would likely protect statements that ‘offend, insult or humiliate particular groups of people’.
Submitters highlighted that clause 12 could also increase discrimination against people of faith, particularly those of minority faith traditions. PIAC submitted that, under the religious discrimination bill, it could be permissible for a Jewish person to be told ‘that they are responsible for killing Jesus’. Likewise Venerable Akaliko, Board Member, Buddhist Council of New South Wales, drew from his own experience to explain that ‘moderately expressed views can still cause a lot of harm’. He shared that:
it is quite common for Christians to come up to me on the street and to tell me that I am going to Hell and that I'm following the wrong religion. These things are often yelled at me. I've been told in the past that I'm a sinner and that I will rot in Hell. These would be regarded as moderately expressed views according to this legislation. It doesn't go far enough to protect people from views which are offensive or humiliating.
Venerable Akaliko cautioned that statements of belief should not be a reason to ‘embolden…horrible comments being made under the guise of religious views’. Venerable Akaliko continued that the provisions should be ‘strengthened so that it also includes offensive and insulting comments that are discriminatory’:
I think there's a lot of opportunity for bad-faith actors and people who don't hold a genuine religious view to make comments to people from minority groups or other religions under the guise of a religious view, which could actually cause a lot of harm.
Venerable Mettaji of the Australian Sangha Association likewise drew attention to concerns about the statement of belief provisions, given that under a dictionary definition, a ‘statement of belief is an opinion’ and therefore ‘may not be challenged with rigorous evidence’. Venerable Mettaji questioned how a statement of belief could be considered by the courts, when:
…one religion is saying, 'My peer here said that was reasonable for me to say it'? That's the test that's being applied to this bill. That's part of the reason we say we can't support the bill in its current form.
The AHRC also strongly opposed the statement of belief provisions. Emeritus Professor Rosalind Croucher, President of the ARHC, told the committee that the AHRC considers the clause ‘not legally necessary’, as ‘other provisions of the bill will provide confidence to people that they can speak freely about their faith without infringing the rights of others’.
Mr Edgerton of the AHRC further explained:
Those who are proponents of clause 12 have not identified any Australian case where a moderately expressed statement of belief has been found to be contrary to Australian discrimination law, either in a tribunal or in a court. So we say the conclusion from that is that clause 12 doesn't address a pressing legal issue. It's not necessary to protect moderate statements of religious belief. But that's not the legal effect of clause 12. The legal effect of clause 12 is broader than that, and that's why we have concerns about it. It not only protects moderate statements; at the margins, because it overrides existing antidiscrimination law protections, it will also have real impacts on people who rely on those protections, particularly in relation to demeaning or degrading statements.
The AHRC advised it was unaware of any case where genuine statements of belief ‘have been held to be contrary to Australian anti-discrimination law’ and argued that the ‘only thing that clause 12 of the Bill does is to affect the operation of anti‑discrimination legislation (both Commonwealth laws and State and Territory laws) to permit conduct that would otherwise amount to discrimination’. The AHRC called for clause 12 to be removed from the bill in its entirety.
AGD explained that the purpose of clause 12:
…is to ensure that people can express their genuine religious beliefs or nonreligious beliefs about religion in good faith and without malice, so long as such statements do not harass, threaten, intimidate or vilify a person or group, or would otherwise counsel, promote, encourage or urge conduct that would constitute a serious offence.
The AGD responded to some of the concerns raised about clause 12 and explained how the clause is intended to operate. Mr Andrew Walter, Acting Deputy Secretary stated:
Clause 12 is very circumscribed and it is on a number of levels. The starting point is it has to be a statement and it doesn't extend to conduct which could be a course of conduct. So it's a mere statement of belief in and of itself. That's a critical narrowing to begin with. Then if we go to the definition of what a statement of belief is—and just for ease, so we don't take hours over this, I will stick to religious beliefs because it also works for a non-religious belief—it has to be a religious belief held by the person. That's really important. You don't get to take advantage of this by saying, 'Muslims think X, Y and Z' if you're not a Muslim. It has to be a religious belief that you actually hold. It must be made in good faith.
The third element is that you have to genuinely believe that that is part of the doctrines, tenets and beliefs of your faith. So you don't get to just make up things and say, 'I'm a Christian and I think X, Y and Z.'
Mr Walter noted that the test for establishing whether this element is satisfied is one of whether the individual believes it or not. He explained:
There are a couple of elements here. It needs to be a religious belief in the first place. So if it doesn't meet the threshold that the High Court has set down in terms of what constitutes a religious belief or not it's not in. Secondly, you subjectively have to genuinely believe that it is part the doctrines, tenets and beliefs of your faith. That's necessary because there are, of course, established religions—perhaps I'm displaying my Protestant background, but for Protestantism and many other religions it's about your personal relationship with God or with the Bible, for example, which means that others may not share that common interpretation. But it has to be genuinely held. There needs to be some demonstration that you do hold that belief and have held it over time.
Mr Walter remarked that clause 12 ‘doesn’t apply an objective test’ in that it does not require a comparison of the statement to the codicils of the particular religion. Instead, the test is:
'Do you genuinely believe that this is part of the doctrines, tenets and beliefs of your faith?' If the answer is yes, the third element is good faith. I think that's the real nub of the issue, when it comes to those things like, 'You're in a wheelchair because you're godless,' or homosexual or whatever it is.
Good faith, in that context, means: (a) are you saying something that—there's a fidelity element. Are you saying something is consistent with your religion? But that's picked up in other elements. The critical bit here, drawing on the decision in Bropho, which is a Federal Court decision of Justice French, is about exercising that right to free speech, in this instance, conscientiously having regard to the aims of the legislation that is impacted. In this case, it's, say, the Religious Discrimination Bill or the disability discrimination bill—an act, my apologies—which is another example. If, for example, you're talking about a care worker, of some sort, saying that type of abhorrent statement, it's simply not protected, because you would not be able to get over the good faith element. So it brings equal rounds, the statement, in the factual circumstances in which it's made.
Crucially, the clause is intended to be clarificatory, rather than create new rights; this is a ‘core principle behind the drafting of the provision’:
…there will only be the most limited of circumstances where mere statements of religious belief are likely to amount to discrimination in and of their own right, without any associated conduct. I think this committee has heard evidence to that effect in some of the submissions, and we would agree with that as a general proposition.
What was heard during the Religious Freedom Review and what was heard from some religious stakeholders during our consultation was that, nonetheless, the threat of action being taken against them is having an impact on how they feel they can manifest their religion in the public [sphere]. The intention behind clause 12 is very much meant to give people confidence that a claim of discrimination, if it were to be made against them, could be resolved very quickly, because you could point to clause 12 and say, 'No, I am merely stating a religious belief.'
People have been saying to us that this issue comes up where they do not feel confident that they are in a position where they can express those views. This gives them that confidence. I don't think that's a placebo; I think it is making the law clearer and more certain on its face.
Mr Walter outlined how clause 12 could contribute to better efficiencies in dealing with discrimination complaints. While the provision would not stop someone making an unmeritorious complaint, it would allow a complaint to be considered in the initial stages, and—if constituting a statement of belief—to be dismissed before going through a ‘detailed process of analysing the situation and attempting to conciliate’ In other words, it would provide ‘upfront clarity’.
Mr Walter confirmed that the department was unaware of any examples at the Commonwealth level where genuine statements of belief have been held to be contrary to discrimination law. However, Mr Walter placed an important caveat on this, saying:
…religion really isn't a question under many of our existing discrimination laws. It does come up in the Sex Discrimination Act and, to some extent, under the Racial Discrimination Act in relation to ethno‑religious groups. So there are unlikely to be a huge number of examples where religion is going [to] be in play.
Impact in workplaces
Employer groups and unions expressed concerns about the potential impact of clause 12 in workplaces. Unions Tasmania stated:
We'd like to note that discrimination is deeply traumatic when it occurs anywhere, but we hold specific concerns that overriding our laws and introducing statements of belief that may be made in workplaces could deeply traumatise workers, could lead to additional sick leave, additional workers compensation claims for mental illness and injury and would create discord in workplaces that we desperately don't need.
The Australian Industry Group (Ai Group) and the Australian Chamber of Commerce and Industry (ACCI) shared concerns about the potential limitations on employers taking action against individuals who make statements of belief protected by clause 12. While the Ai Group supported the removal of clause 12 altogether, both it and the ACCI argued that if the statement of belief protection was to be enacted, it should be accompanied by an exemption to allow employers to take reasonable management action without that constituting discrimination. Ai Group explained the rationale for this as follows:
We have a very significant focus within Ai Group with our members on helping them to achieve diverse and inclusive workplaces. I don't think anyone could argue that that isn't beneficial all around. We're keen to make sure this bill doesn't disturb that.
While the Australian Council of Trade Unions (ACTU) shared the employer groups’ concerns about clause 12, it argued that the reasonable management action proposal would not sufficiently address the issues raised by clause 12. It stated, ‘[m]erely dealing with any constraint that an employer might have is only one part of the problem of creating a safe workplace free from discrimination’. The ACTU elaborated:
Should s 12 remain in the Bill, doubt will still be cast on the effectiveness of employer policies, enterprise agreement clauses and codes of conduct that use existing discrimination laws as their foundation. The express override of laws intended to protect vulnerable groups from discrimination at work and other areas of public life is completely unwarranted and unacceptable. The way in which this ‘override’ will work in practice is extremely unclear. It will undoubtably increase unfairness, conflict and confusion in Australian workplaces. The proposed amendment to s 39 will not address these serious matters.
Further, an amendment to s 39 would not assist at all where an employer did not take reasonable management action to prevent harmful conduct; either because the hostile and discriminatory comments were made by members of management themselves; or because policies and processes at the organisations were inadequate or non-existent. A worker in such a workplace would be left without any recourse to a discrimination complaint, if the hostile or discriminatory statements could be justified based on an individual’s religious views.
On that basis, the ACTU argued that clause 12 should be removed.
The AGD advised that reasonable management action of the kind referred to by employer groups ‘seems unlikely to be unlawful under the bill as it is currently constructed’. The department:
In relation to direct discrimination, if the employer put in place a policy that is not discriminatory to any particular group but did impose rules around respectful workplaces—the kind of materials, in general terms, that could be placed on people's desks, and so forth—it would be quite unlikely to offend the direct discrimination prohibition because, if you apply comparator test, if you treat materials that relate to political opinion in the same way you treat materials about religious belief, it simply wouldn't be discriminatory to impose that condition.
Of course, in relation to indirect discrimination, if you impose a facially neutral condition, requirement or practice, that will always be okay, provided you can establish that it's reasonable. One of the key elements of that proposal around reasonable management action is reasonableness. In a sense, the reasonableness defence to indirect discrimination and the reasonable management action proposal are doing much the same work in relation to facially neutral policies.
I suppose another initial observation I would make is that in relation to an employer's very legitimate interest in providing a safe workplace, which may be related to this, the bill doesn't affect either employers' or indeed employees' obligations under work health and safety law to provide a safe workplace. Anything that employers do that they consider to be necessary to comply with their duties under the work health and safety law would be not unlawful under this bill.
Discrimination in religious education institutions
The impact of the measures in the bill on religious education institutions was discussed throughout the inquiry. In particular, the power to require that staff and students practice the religion of the institution, and to hire preferentially on this basis were considered at some length. Submitters of all persuasions generally agreed that such preferential treatment is necessary for certain positions within religious bodies such as schools (discussed in chapter 2). However, questions were raised as to whether that should extend to all positions of employment in those settings.
The question for PIAC was ‘one of reasonableness and balancing the different rights and the different values that we have in society’. It suggested that one such value is non-discrimination and suggested that schools can maintain an ethos without having to discriminate.
Equality Australia expressed a similar sentiment, highlighting that such exemptions ‘must employ a better balancing mechanism to accommodate the rights of individuals with different and no religious beliefs who are employed, enrolled or rely on services delivered by faith-based organisations’. Such exemptions, Equality Australia asserted:
…must also prevent the selective application of religious beliefs to target and single out LGBTQ+ people and the people who support them for less favourable treatment, as we have seen in a number of recent cases.
Equality Australia continued, adding:
Religious exemptions in Commonwealth law should not allow discrimination based on sexual orientation or gender identity by faith-based organisations (as they currently do), but should allow for discrimination based on a person’s religion if religious adherence is actually relevant to the particular role, program or service in question, and it is reasonable and proportionate for the religious body’s religious practice or requirement to dominate an individual’s own religious practice.
PIAC suggested that these provisions would allow ‘religious schools to discriminate against children and young people on the basis of their religious belief beyond the point of enrolment’. It explained:
We think that's an appropriate balancing of the rights of faith communities to form schools to educate their children as well as the protection of religious freedom of children and young people so that they can question, develop and explore their faith without fear of punishment on the basis of who they are. That's a core principle which is not respected by this bill.
We would also note that there is potentially a flow-on impact for LGBT students because of the ability of schools to discriminate on the basis of religious views about sexual orientation and gender identity rather than those things per se. We saw those implications highlighted by a number of the witnesses during yesterday's hearings, that they would discriminate against some gay students because of their approach to homosexuality and call it discrimination on the basis of religious belief. The longer term implication is that, even if the Sex Discrimination Act were to finally be amended to remove that exclusive ability to discriminate against LGBT students, there is also a fear that a religious discrimination bill passed in its current form could be used to discriminate against LGBT students via an alternative means.
AGD explained the rationale for the proposed provisions regarding employment in religious education institutions as follows:
The Government considers that ensuring religious schools can continue to make employment choices that maintain the religious ethos of the school enables parents of faith to confidently make choices for the education of their children. Article 13(3) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the liberty of parents to choose schools for their children in conformity with their own religious and moral convictions. Article 18(4) of the International Covenant on Civil and Political Rights (ICCPR) provides that States Parties undertake to respect the liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. As noted in paragraphs 73 and 74 of the Statement of Compatibility of Human Rights for this Bill, the Government has considered these Articles in drafting clause 11.
AGD clarified that clause 11 would permit the override of state and territory provisions relating to employment decisions by religious education institutions only in circumstances where that state or territory provision is prescribed under the clause and where inconsistency arises between the Commonwealth and state or territory provisions.
Human rights for groups and corporations
As discussed in paragraph 1.60, clause 16 would allow a body corporate to make a claim for religious discrimination.
The AHRC was concerned that the bill would allow a corporation to:
…make a complaint of religious discrimination against an individual or another organisation. This is a significant departure from domestic and international human rights laws which protect only the rights of individuals, that is, humans.
Professor Croucher explained that existing discrimination law already provides the ability for more than one person to bring a complaint under those laws, as a group (or a ‘collective’), and there was:
…a possibility for a number of individuals to group together and bring a complaint. That's quite a different concept from imbuing in a corporation the right to be a complainant under antidiscrimination law, which is completely at odds with the ethos of human rights law, which is about the human rights of individuals. It's the corporate element that is unnecessary and I think throws a confusing and an unnecessary element into the mix.
The AHRC recommended that clause 16, dealing with ‘associates’ and which would allow a corporation to make a complaint of religious discrimination, be ‘amended to make clear that a complaint of discrimination may only be made by a natural person and not by a corporation’.
Mr Ghassan Kassisieh, Legal Director of Equality Australia, argued that empowering groups and corporations to make claims of discrimination was not the norm in Australia. He explained that the international human rights framework protects human rights, and ‘calls on states to protect humans from discrimination’. In considering the rights of groups and corporations, Mr Kassisieh said:
There are some international examples and domestic examples where corporations have been able to, for example, under charters of rights, human rights acts and constitutional protections, bring individual claims, but we have rejected that approach in Australia.
In contrast, Dr Alex Deagon argued that there are two constitutional supports for ‘protecting the ability of religious corporations to be litigants’. Dr Deagon argued that firstly, ‘the Constitution supports the power to legislate to protect incorporated and unincorporated religious bodies against religious discrimination through the external affairs power’, and the ICCPR protects ‘individuals manifesting their beliefs in community with others (including through incorporated and unincorporated communities), and protect such communal entities against discrimination’. Dr Deagon claimed that because of this, ‘international law jurisprudence clearly accepts religious associated as distinct persons at law which can sue and be sued in their own right’. To his second point, Dr Deagon stated:
…the Commonwealth has the power to legislate with respect to constitutional corporations through the corporations power. Where a religious corporation is a constitutional corporation, and such a corporation is the object of statutory command or has rights and obligations conferred upon it, the Commonwealth has the ability to designate a religious corporation as a litigant. Therefore, as a constitutional matter, there is no impediment to empowering religious corporations as litigants in a law protecting against religious discrimination, and indeed such is required as a means to give adequate effect to the protections afforded to individuals and groups against religious discrimination in international law.
Associate Professor Mark Fowler also supported the inclusion of body corporates and similar bodies as having protection from religious discrimination. Associate Professor Fowler argued that religion is unique in its ‘propensity…to cause people to congregate’ and suggested it is:
…quite correct when the Human Rights Commission says that international human rights law is to protect individuals, but what it also recognises is that, if you don't protect individuals when they congregate, you undermine the protection that is given to individuals themselves…In the Australian context, Justice Redlich, in the Cobaw decision, recognised that, if we didn't enable corporations of religious believers to also take protection, we would undermine the substantive protection to the individuals associated with those corporations. So it's very important that we be very clear about what we're saying here. The international law does protect individuals, but, if you don't also protect corporations, you undermine the protections to individuals.
Professor Nicholas Aroney explained that the ‘associational, collective and institutional aspects’ of freedom of religion are affirmed in international instruments and official international commentary’. He further asserted that under domestic law, freedom of religion is ‘exercised through an array of legal institutional forms, including charitable trusts, unincorporated associations, incorporated associations, companies limited by guarantee and corporate bodies formed under special legislation or by letters patent’. He argued:
It would be entirely inconsistent with long-standing Australian legal practice to deny that religious freedom is appropriately manifested in a variety of associational and corporate forms and that religious organisations have legal rights.
Sex Discrimination Act
Exemptions currently exist under the Sex Discrimination Act which provide that it is not unlawful to discriminate against another person on the grounds of sexual orientation, gender identity, marital or relationship status, in the provision of education or training in an education institution, if it is ‘in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed’.
The AGD confirmed that the bills do not affect the operation of the current religious exemptions in the Sex Discrimination Act. Rather, in responding to the Religious Freedom Review, the government tasked the Australian Law Reform Commission (ALRC) with examining religious exemptions in all Australian laws. The AGD pointed out that:
The Government’s position was made very clear at the time and in the terms of reference for the inquiry that it does not support discrimination. The Government is concerned to get the balance right between ensuring religious schools can maintain their religious ethos and ensuring people are free from discrimination.
While the bills before the committee do not make amendments to the Sex Discrimination Act, there was discussion about the exemptions under that Act during the inquiry. Broadly, those in support of the bills were opposed to changes to the Sex Discrimination Act which would remove the current exemptions—at least until such time as the independent review, currently underway by the ALRC, is completed.
For example, Dr Deagon argued that any changes to the Sex Discrimination Act in the context of the bills would be ‘misconceived’, noting that:
Previous parliamentary committees considered such a move and rejected it, recommending the issue be considered in depth by the Australian Law Reform Commission. This is still the best approach as religious discrimination and religious exemptions to sex discrimination are conceptually and legally separate.
Similarly, the AACS opined that the religious discrimination bills should in no way be linked to amendments to the current exemptions under the Sex Discrimination Act, ‘without careful consideration of the impact on Christian schools’ teaching program and behavioural policies’. The AACS further stated:
The ability of our schools to operate in accordance with their religious beliefs is fundamental to maintaining a distinctive Christian character in their schools and these [Sex Discrimination Act] exemptions should not be altered without extensive consultation with affected stakeholders.
The Anglican Church Diocese of Sydney considered the religious discrimination legislative package is ‘rightly a precursor to the ALRC review’, because the bills, once enacted would:
…establish, in positive terms, what religious bodies require in order ‘to reasonably conduct their affairs in a way consistent with their religious ethos’. Religious bodies do not want carte blanche to discriminate on the basis of sex, age, disability or race, but merely want to be able to operate in accordance with the doctrines, tenets, beliefs or teachings of their religion.
Submitters who opposed the bills shared the view that the exemptions under the Sex Discrimination Act ‘continue to licence discrimination against LGBTQ+ people, including students’. Equality Australia explained:
The real issue that needs to be addressed are broad exemptions in the Sex Discrimination Act 1984 (Cth) which continue to licence discrimination against LGBTQ+ people, including students. In the lead up to the Wentworth byelection, the Government made a commitment to repeal exemptions for religious schools allowing them to expel students based on their sexual orientation. That promise remains unfulfilled. Moves to entrench exemptions for religious schools in connection with marriage, while the broader issue of religious school exemptions remain, highlights a lack of balance in the approach to exemptions generally and a prioritisation of religious privilege over and above the interests of LGBTIQ+ people.
In light of the Prime Minister’s remarks that he does not support the expulsion of gay students or the sacking of gay teachers it is not clear why this religious exemption is being legislated now while LGBTQ+ people have to wait for a further 12 months for an Australian Law Reform Commission inquiry to tell us what we already know: that LGBTQ+ staff, teachers and students at religious schools are not adequately protected from discrimination based on their sexual orientation or gender identity.
The AGD informed the committee that no further amendments to the legislation, including in relation to the Sex Discrimination Act, have been approved at this time.