4.1
This chapter considers criticisms raised about the bills and their operation during the course of the inquiry. Concerns included:
the constitutionality of the bills and whether they are established under a suitable head of power;
jurisdictional issues with access to justice and the impact of the bills on state and territory tribunals;
the impact of the bills on the provision of services in rural and remote areas; and
the need for more specificity in the definition of some key terms (including ‘religious belief or activity’ and ‘religious body’).
Constitutional impacts
4.2
As discussed in chapter 1, clauses 64 and 65 of the Religious Discrimination Bill 2021 (religious discrimination bill) state that the bill relies upon the external affairs power in section 51(xxix) as its constitutional head of power. That is because there is no head of power directly related to human rights.
4.3
Where the Commonwealth has the power to enact a valid Commonwealth law, section 109 of the Australian 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.
4.4
Submitters and witnesses considered the provisions of the bills, and particularly the religious discrimination bill, in relation to section 109 of the Constitution.
Constitutional questions
4.5
Several submitters and witnesses voiced concerns about the constitutional basis for the bills. Others suggested that claims the bills give full effect to Australia’s obligations under the ICCPR failed to consider Article 18 in its totality.
4.6
Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney, highlighted that freedom of religion is limited to some degree by Article 18(3) of the ICCPR, which states:
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.
4.7
Professor Twomey suggested that the controversy around the manner in which protections under the religious discrimination bill may impact the rights and freedoms of others ‘raises a question about the reliance on s 51 (xxix) as a head of power to support this Bill’. Professor Twomey observed that s 51 (xxix);
…is regarded as a ‘purposive’ power…[and] does not give the Commonwealth Parliament a power to make any law with respect to freedom of religion. It only confers a power to make a law that is capable of being reasonably considered to be appropriate and adapted to giving effect to the terms of the treaty.
4.8
Professor Twomey continued that section 51(xxix) does not support the bill, ‘if the provisions of the bill were substantially inconsistent with the ICCPR as a whole’, because:
…article 18 of the ICCPR states that the right to freedom of religion may only be limited where it is necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Such an assessment would therefore be a difficult one for a court to make, if the validity of the law were challenged on the ground of a lack of power. The court would have to assess: (a) what limitations on freedom of religion are ‘necessary’ to protect the rights and freedoms of others; and (b) whether a failure to incorporate such necessary limitations in the relevant law, when combined with any deleterious impact of the law upon other rights and freedoms declared by the ICCPR, would mean that the law was so deficient in its implementation of the ICCPR that it was ‘substantially inconsistent’ with it and was not ‘capable of being reasonably considered to be appropriate and adapted to giving effect to the treaty’.
4.9
The Australian Lawyers Alliance (ALA) argued that:
Key provisions of [the] RD Bill have the effect of interfering with other rights protected by the ICCPR. These provisions may therefore not be valid under the constitutional external affairs power as they do not give effect to Australia’s obligations under the ICCPR.
4.10
The Law Council of Australia (LCA) likewise argued that there are ‘important questions as to whether, given significant departures from key treaties, clause 64 may be relied upon as the main constitutional basis of the bill’.
4.11
Ms Katherine Eastman SC of the LCA questioned whether the external affairs power provides the Commonwealth with the authority to pass the religious discrimination bill. The LCA queried whether the ‘relevant Australian law is appropriate and adapted to give effect to the international law obligations’. Ms Eastman considered these matters in relation to Article 18:
While article 18 of the International Covenant on Civil and Political Rights recognises the freedom of religion, that freedom comes with certain exceptions, and the exceptions are part of the way in which one looks at the character of the right and the extent to which Australian law reflects that relevant international law. The second point is that article 18 of the ICCPR cannot be read and considered in isolation in the context of the human rights law, and, to the extent that this bill gives precedence to article 18 rights and freedom of religion, to the … important rights in the ICCPR, particularly equality and non-discrimination on a range of grounds, then, in that respect, the question of whether the bill would be [inaudible] by the international law is a live issue, and we agree with Professor Twomey's submissions in this respect.
4.12
However, Professor Nicholas Aroney, Professor of Constitutional Law, University of Queensland, pointed to several instances where the High Court has upheld the power of the Commonwealth to enact legislation, ‘selectively addressing particular international obligations under particular international treaties’. Professor Aroney contended that ‘all of the Commonwealth’s discrimination laws enacted under the external affairs power are of this character’.
4.13
Professor Aroney expanded on this point further when appearing before the committee, making several observations about the bills and their constitutionality. He argued that, ‘inevitably, whenever new legislation is enacted by the Commonwealth relying on the external affairs power, questions about its constitutionality arise’. Professor Aroney highlighted several examples, saying:
…when the Racial Discrimination Act was enacted, there were questions about whether it was constitutional. However, that did not stop the government from proceeding with enacting the law, even though the law was itself under constitutional doubt for several years until its constitutionality was resolved in the Koowarta case by a very close majority of the High Court. The same can be said about the other federal discrimination laws, including the Sex Discrimination Act, and, indeed, when the Commonwealth decided to intervene in the construction of a dam in Tasmania, known as the Tasmanian dam case. Whenever the Commonwealth intervenes in these areas it does have the potential to produce a degree of litigation to resolve these constitutional questions. That is what normally happens in Australia. It's not something unusual. So I don't see that there is really a need to be overly concerned in principle that the introduction of this bill could produce some litigation because all of the progressive steps that have been taken in Australian law to protect human rights have involved those sorts of problems.
4.14
Professor Aroney further clarified that the religious discrimination bill ‘does not seek to protect all of the rights recognised by the ICCPR but rather focusses on protecting the right not to be discriminated against on the basis of religion’. Professor Aroney explained that the focus on religious discrimination:
…does not mean that the Bill cannot be characterised as a law implementing the ICCPR. The High Court has pointed out that a law implementing a treaty need not give effect to all obligations under that treaty, so long as its “partial” implementation does not mean that the law cannot fairly be characterised as a law which implements the treaty and so long as the law does not contain “significant provisions” which render the law “substantially inconsistent” with the terms of the treaty.
4.15
The Attorney-General’s Department (AGD) stated that the religious discrimination legislation is on a ‘sound constitutional footing’. Mr Andrew Walter, Acting Deputy Secretary, AGD advised that the department had received legal advice on a number of provisions in the bills and:
…we have shaped the legislation in accordance with that legal advice. There is nothing that we've heard or seen in the submissions or of what we've heard so far that has caused us to rethink our view…we think the bill is on sound constitutional footing.
Suggested amendments to clauses 11 and 12
4.16
As explained elsewhere in this report, 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.
4.17
As referenced in Chapter 3, Professor Twomey explained to the committee that clause 11 of the religious discrimination bill purports to alter the effect of the application of a state law, but ‘it is not within the Commonwealth Parliament’s power to legislate to control the legal operation of a state law’; it can only give rise to an inconsistency which renders the state law inoperative to the extent of that inconsistency. Professor Twomey argued that ‘if the state law is inoperative, there can be no contravention of it’.
4.18
Professor Twomey concluded that:
Overall, s 11 is conceptually confused and probably invalid to the extent that it seeks to control the operation of a state law rather than establish a direct inconsistency with it or exclude it from operating within a field that has been exhaustively and exclusively covered by a Commonwealth law.
4.19
Professor Twomey also expressed concerns about the drafting of clause 12, stating:
It provides that a statement of belief ‘does not constitute discrimination for the purposes of’ a number of Acts, including State Acts. How can a Commonwealth law dictate the interpretation of what amounts to discrimination under a State law? It cannot do so. It cannot amend or alter a State law or instruct a court as to how to interpret the State law. All it can do is enact its own law that gives rise to an inconsistency (eg by granting a right or conferring a power to do something, which a State law prohibits, limits or qualifies), rendering the State law inoperative to the extent of that inconsistency.
4.20
Professor Twomey concluded that – particularly with regard to clauses 11 and 12 of the religious discrimination bill – it was ‘confounding to contemplate why these provisions of a highly contentious Bill would be drafted in such a provocative manner’ and suggested they be amended.
4.21
Professor Aroney echoed Professor Twomey’s concerns around constitutionality, explaining:
If clauses 11 and 12 are construed by the Court as evincing an intention to cover the field and thus displace the prescribed State laws that enter that field, then the clauses may be effective under section 109. However, if they are construed as an attempt by the Commonwealth to alter the meaning and effect of the State laws, then they may not be effective to displace the State laws.
4.22
In order to address this issue, and ‘put the matter beyond doubt’, Professor Aroney suggested ‘a simple drafting alteration’, which could clarify that clauses 11 and 12 ‘ensure that the described conduct is not unlawful notwithstanding anything contained in any of the prescribed State or Territory laws’.
4.23
Professor Aroney said such amendments were ‘advisable because, as currently drafted, clauses 11 and 12 purport to determine the meaning and effect of the prescribed State laws, and decisions of the High Court have raised doubts about whether this would be constitutionally effective’. Under Professor Aroney’s revised wording:
… the Commonwealth law establishes or affirms the existence of a right or liberty to engage in the described conduct. An inconsistency under section 109 will arise in respect of any State or Territory law that would prohibit the described conduct.
Clause 11
4.24
Professor Aroney proposed the following wording for clause 11 (suggested amendments emphasised):
(1)
Notwithstanding any prescribed State or Territory law, it is lawful for a religious body that is an educational institution when engaging in conduct described in section 19 (about employment), to give preference, in good faith, to persons who hold or engage in a particular religious activity if the conduct is in accordance with a written policy that:
(a)
outlines the religious body’s position in relation to particular religious beliefs or activities; and
(b)
explains how the position in subparagraph (a) is or will be enforced by the religious body; and
(c)
is publicly available, including at the time employment opportunities with the religious body become available.
4.25
Professor Aroney argued that the effect of such a clause would be supported by the current wording in subclause 11(4) of the religious discrimination bill, and would:
…make it lawful to engage in the defined conduct. Any state or territory law that made the same conduct unlawful would be inconsistent with it and would therefore be invalid to the extent of the inconsistency under section 109 [of the Constitution].
Clause 12
4.26
Professor Aroney explained that clause 12 seeks to ensure that a statement of belief would not constitute discrimination under named state and territory laws, ‘while allowing that a statement of belief, might, in the circumstances of a case, in conjunction with conduct, contribute to a conclusion that unlawful discrimination has occurred’.
4.27
Professor Aroney made suggestions for changes to clause 12 which would maintain the objectives of the provision, ‘while addressing any doubts about the effectiveness of clause 12 under section 109 of the Constitution’ (amendments emphasised):
(1)
A statement of belief, in and of itself, does not constitute discrimination for the purposes of this Act.
(2)
Notwithstanding any of the following State or Territory laws, it is not unlawful to make a statement of belief, in and of itself:
(a)
the Age Discrimination Act 2004;
(b)
the Disability Discrimination Act 1992;
(c)
the Racial Discrimination Act 1975;
(d)
the Sex Discrimination Act 1984;
(e)
the Anti-Discrimination Act 1977 (NSW);
(f)
the Equal Opportunity Act 2010 (Vic.);
(g)
the Anti-Discrimination Act 1991 (Qld);
(h)
the Equal Opportunity Act 1984 (WA);
(i)
the Equal Opportunity Act 1984 (SA);
(j)
the Anti-Discrimination Act 1998 (Tas.);
(k)
the Anti-Discrimination Act 1991 (ACT);
(l)
the Anti-Discrimination Act (NT);
(m)
any State or Territory law prescribed by the regulations for the purposes of this subsection.
(3)
Subsection (2) does not apply to a statement of belief:
(a)
that is malicious; or
(b)
that a reasonable person would consider would threaten, intimidate, harass or vilify a person or group; or
(c)
that is covered by paragraph (35(1)(b).
(4)
Subsection (2) is intended to apply to the exclusion of a law of a State or Territory so far as it would otherwise make a statement of belief, in and of itself, unlawful.
(5)
Subsection (2) is not intended to apply to the exclusion of a law of a State or Territory so far as certain conduct would constitute discrimination under that law where the conduct included, but was not limited to, a statement of belief.
Views on proposed amendments
4.28
The committee sought the views of stakeholders on Professor Aroney’s proposed amendments.
4.29
In response, the Institute for Civil Society told the committee it supported Professor Aroney’s drafting, because it would provide a simply stated right and ‘would resolve the doubts which Professor Twomey has’.
4.30
Likewise, Professor Patrick Parkinson, Director of Freedom for Faith, considered the current drafting of clauses 11 and 12 to be ‘very complicated and unnecessarily awkward’, and urged the enactment of a nationally consistent law. Professor Parkinson argued that a simpler approach would be to do as Professor Aroney has suggested—to create a right that ‘it is lawful for religious bodies to employ or prefer people of their faith—with which, if a state law is inconsistent, it's invalid to the extent of that inconsistency’. Professor Parkinson argued that this would ‘not be difficult and would make for much a clearer law for the parliament to pass.’
4.31
Dr Colin Rubenstein of the Australia/Israel and Jewish Affairs Council (AIJAC) similarly considered Professor Aroney’s suggestions ‘eminently reasonable and worthy of serious consideration’. Dr Rubenstein reflected that while these matters are likely to be considered by the courts, this could be a ‘tardy process’. Dr Rubenstein confirmed that AIJAC’s ‘initial reaction is that this is quite a sensible and reasonable qualification from Professor Aroney’.
4.32
Upon reflecting on Professor Aroney’s suggestions further, Dr Rubenstein advised that while the redrafts might address the constitutional issues raised by Professor Twomey, they might also ‘confer an unintended consequence by expanding the remit for a person to seek protection for statements of belief’.
4.33
The Executive Council of Australian Jewry (ECAJ) advised that while it supported Professor Aroney’s proposals for clause 11, it could not support his proposed amendments to clause 12. Instead, ECAJ offered suggested redrafts of its own and explained:
In our view this proposed redraft, if enacted, would enlarge the scope of the protection to be given to statements of belief well beyond that which is contemplated by the express words of the current clause 12, and would sweep aside many of the critical limitations to the operation of clause 12 which are explained in paragraphs 151 to 194 of the Explanatory Memorandum to the primary Bill.
…Professor Aroney’s proposed redraft would provide that a statement of belief “is not unlawful” under those laws. This would have the effect of excepting statements of belief from any contravention of those laws, and not merely from a contravention of their anti-discrimination provisions. The difficulty is that Commonwealth, state and territory anti-discrimination laws prohibit not only forms of conduct that constitute discrimination, but other forms of conduct as well.
4.34
The AHRC did not support the suggested amendments. The AHRC contended that Professor Aroney’s approach would not address its ‘substantive concerns with either clause 11 or clause 12’ and it should not form part of the religious discrimination bill. With regard to the proposed clause 11, the AHRC asserted that:
…the effect of the clause would be to substitute a policy position of the Commonwealth Government for a policy position of the State of Victoria in an area where Victoria has primary responsibility. This would be a highly unusual step. Education is primarily a responsibility of the States.
4.35
Turning to clause 12, the AHRC said Professor Aroney’s suggestion would not address concerns that it would 'result in a diminishing of protections against discrimination with adverse consequences that are unintended and unnecessary’. The AHRC continued:
Significantly, the proposed redraft of clause 12 would be more problematic than the existing clause 12 because it would override anti-discrimination law to a greater extent.
…Existing clause 12 is limited to providing that statements of belief do not amount to discrimination under Commonwealth, State and Territory anti-discrimination laws. However, under the proposed new drafting, clause 12(2) would provide a general right to make a statement of belief, notwithstanding any anti-discrimination law. This is not limited to discrimination provisions in those laws and would also extend to harassment and vilification provisions in those laws, subject to the limitations in clause 12(3).
This means that a statement of belief could provide a defence to s 18C of the Racial Discrimination Act 1975 (Cth) (RDA). This was a result that was explicitly disavowed by the Government in the Explanatory Memorandum at [178].
4.36
When the AGD was asked to respond to Professor Aroney’s proposed amendments, the department indicated comfort with the clauses as currently drafted. Mr Walter of the AGD advised:
In relation to Professor Aroney's suggestion: again, we don't see anything there that causes us at this point to think that we need to rethink how we've done it. I think the committee has also heard evidence that [the amendments] may have other consequences as well, and so, if we were to head down that path, we would want to go and get our own independent legal advice on how his approach to the legislation works. Of course, we have not done that at this point.
Questions of jurisdiction – tribunals and courts
4.37
There was some confusion expressed during the inquiry about the interaction of the bills with state and territory tribunals, where discrimination matters are normally heard, and how matters would interact with the federal courts.
4.38
There was also discussion about the role of the federal courts in determining state discrimination cases, which could arise following the enactment of these bills. Those in favour of the bills argued that future developments in case law would clarify the provisions. However, a number of witnesses took issue with this suggestion, drawing attention to section 109 of the Constitution, which provides that when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
4.39
As was well clarified by the Right Reverend Dr Michael Stead, Bishop of South Sydney, the issue in terms of section 109 is ‘not so much the constitutionality of the amendment but whether they would be constitutionally effective—that is, whether section 109 be invoked to override the inconsistent state legislation’.
Concerns about jurisdiction
4.40
Mr Liam Elphick of the Australian Discrimination Law Experts Group (ADLEG) suggested, for example, that the beneficial role of the courts had been over-simplified in relation to clauses 11 and 12 because they:
…are not simple provisions. They are complex provisions. They are not provisions that can be worked out with a little bit of tinkering here and there by this federal court and that supreme court. They would drastically undermine and throw into chaos our discrimination law system and the way in which victims of discrimination pursue justice through our courts and our tribunals, particularly at the state and territory level. I've discussed this with my colleagues at ADLEG, utilising our many, many years of expertise in discrimination law, and I cannot see a situation in which this naturally or automatically resolves through the court process. The provision should not proceed at all.
4.41
The ALA raised similar concerns, observing that some state or territory anti-discrimination complaints ‘will not be able to be considered by state/territory tribunals, where the respondent claims a “statement of belief” exemption’. The ALA explained:
As state/territory tribunals cannot consider federal laws, these matters will now have to be heard by a state/territory court or a federal court if this provision becomes law. This will significantly increase the cost for complainants in other discrimination matters, making the complaint process less accessible.
The effect of this clause will be that complaints under state/territory jurisdiction in respect of discrimination on the basis of sex, relationship status, pregnancy, parental status, breastfeeding, race, age, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, will not be able to be considered by state/territory tribunals if the respondent alleges that the alleged discriminatory conduct was a “statement of belief”. Whether the conduct amounted to a statement of belief would need to be considered by the state/territory court or a federal court.
4.42
These concerns were echoed by the LCA, which noted that ‘protection from discrimination is provided through a combination of federal, State and Territory laws’, with discrimination complaints ‘overwhelmingly heard and determined in State and Territory tribunals, rather than through the federal court system’. However, the LCA considered that clause 12 complaints would be a matter for consideration under federal law. The LCA pointed to possible issues, saying:
The tribunal tasked with adjudicating discrimination complaints in the States and Territories (save for Queensland), will not be able to determine the federal defence. The defence will need to be determined by a Chapter III Court, and necessitate further litigation.
4.43
The LCA also expressed concern around conflicts with section 109 of the Constitution and, in relation to clause 12, with the timing of complaints, the complexity of matters and increased risks of costs. The LCA noted that most of the state anti-discrimination tribunals are no cost jurisdictions, or ‘costs are only awarded in exceptional or special circumstances’. Ms Katherine Eastman of the LCA elaborated:
The types of people who may use these laws are not academics following the development of laws over time; they're ordinary people who may be very unaware of the law and unaware, for example, as to what the best forum to prosecute their case is. Those making statements of belief may also be unaware of the law, the extent to which they may even have a defence, and also the consequences of raising a defence based on clause 12. … In terms of resolving those issues, they are very complex issues involving questions of jurisdiction and the operation of chapter III of the Constitution and they can't be dealt with in a very simple way in one piece of legislation.
4.44
The LCA argued that clause 12 should not be enacted, considering it ‘unworkable’, with the potential to ‘draw both the complainant and the respondent into secondary litigation, causing further delay and cost to both parties’.
4.45
When asked whether it considered clause 12 ‘unworkable’, Ms Rita Jabri Markwell, Legal Adviser to the Australian Muslim Advocacy Network (AMAN), remarked that the provision certainly ‘adds complexity to litigating for claimants’. Ms Jabri Markwell continued that without sufficient data, it is hard to discern ‘the precise solution for the precise problem’, stating:
If the problem is that there are too many discrimination complaints that are putting people of faith under stress, it would be good to see the data on that and then to try to resolve that problem as precisely as possible. But we don't have enough information, and that's why we didn't make a recommendation [to that effect].
Response to concerns
4.46
In response to the concerns raised by the LCA, Professor Aroney suggested that established features of the ‘Australian federal system will not render clauses 11 and 12 unworkable’. Professor Aroney argued that ‘the jurisdictional limits of State tribunals has arisen in many legal contexts and is an ongoing issue requiring broader legal reforms’. He concluded:
…clauses 11 and 12 will operate like the many other Commonwealth laws that intersect with State laws which are routinely administered by State tribunals. As in all such situations, decisions of State courts competent to exercise federal jurisdiction may be required to determine any dispute concerning the meaning and effect of clause 11 and 12, but once such determinations are made, they will operate as a precedent for all similar cases.
4.47
Professor Aroney emphasised that many cases have been before tribunals and courts where the limited jurisdiction of tribunals has been an issue, including:
…under a lot of areas of Australian law that are well established and people don't question, such as laws relating to discrimination at a state level or laws relating to vilification at a state level and also laws relating to retail leases and military discipline proceedings. No-one is saying that the Commonwealth should get out of the area of law in order to resolve the problem. It's a wider problem that needs to be addressed and I don't think it's a specific problem relevant to this bill.
4.48
On notice, Professor Aroney observed that most discrimination matters are resolved by conciliation, without engagement of a tribunal:
The problem arising from the limited jurisdiction of State tribunals will only occur in the limited proportion of cases that are referred to a tribunal, in which a clause 11 or clause 12 defence is raised, and in which there is no court decision that provides relevant guidance.
4.49
Associate Professor Mark Fowler suggested that it was the ‘bespoke protections’ of the religious discrimination bill which were eliciting concerns from some stakeholders, and that clause 12 would ‘require some clarification from the courts’. However, Associate Professor Fowler highlighted that state courts are vested with chapter III jurisdiction and can therefore determine constitutional matters which would be binding on a state tribunal. He contended that:
Each of the relevant jurisdictions allow for a transfer from the tribunal to a state court to determine matters that arise in such conflict. Also, a Federal Court may be sought to determine such a conflict as well. In the instance that a Federal Court makes a determination then the question is: is that binding on a state tribunal? The Federal Court's finding will be highly authoritative in respect of the particular conflict for a tribunal…it is a very orthodox, long-running understanding of the Australian court system that a higher court will be binding on a lower tribunal.
4.50
The AGD conceded, however, that the interaction between state, territory and federal tribunals and courts was a ‘genuine problem’. Mr Walter provided the following explanation as to why the problem could not properly be addressed in the bills:
In the relationship between the legislation and particularly state and territory tribunals—as in complaints bodies that are not courts— there is a challenge there, and it's a challenge that's caused by chapter III of the Constitution. There are a number of mechanisms by which the challenges thrown up by chapter III can be overcome, and they're more or less efficient depending on which jurisdiction we're talking about. However, that is a genuine problem. There is no way of drafting our way around that part of the Constitution, unfortunately. I mentioned in the Parliamentary Joint Committee on Human Rights that there is currently a case before the High Court which may resolve some of these difficulties.
Impact on services in rural and regional areas
4.51
The committee heard evidence about the potential impact of the religious discrimination bill on regional and remote communities, particularly in areas where there is only one or a limited number of service providers, connected to a religious organisation.
4.52
It was suggested that if the law allows a religious organisation to engage employees on the basis of religious belief or practice, this could not only exclude people from appropriate employment, but also deny the public access to essential services.
4.53
The Hon Selena Uibo, Attorney-General and Minister for Justice in the Northern Territory, voiced concerns about how, for example, the statement of belief provision could detrimentally impact the Northern Territory. Ms Uibo advised that:
My concern here in the Territory—it's a small jurisdiction—would be some very regional and remote parts of the country not having the option of other places either to have employment or to attend education institutions based on any inhibitors or barriers because of statements of belief. That would be a huge concern for the Territory…
4.54
Minister Uibo explained that in terms of non-government organisations providing services in the Northern Territory, there are many which have a religious founding. Minister Uibo continued:
Often they're the only service provider providing either programs or services in some of the regional and remote parts of the Territory. Most of them are key service providers for Territorians who are vulnerable, disadvantaged, and in our remote areas a high proportion are Aboriginal Territorians. Some of the organisations, many of you would know and be familiar with—Anglicare, Catholic Care and some of the volunteer groups, like the Salvation Army and the Australian Red Cross. They are key partners for delivering services and programs in the Northern Territory.
The impact of some of the proposals or restrictions of the bill would definitely trickle through the community…
Suggested amendments
4.55
While supportive of the bills, some submitters and witnesses pointed to several areas where they considered the bills could be amended (in addition to those amendments proposed by Professor Aroney and discussed earlier in this chapter), to strengthen protections from religious discrimination.
4.56
For example, Dr Renae Barker explained that while the bills are ‘essential to protect the most vulnerable in our community’, as drafted they have some ‘flaws’. Dr Barker argued that ‘these flaws need to be addressed if we are to achieve the core aim of anti‑discrimination law: less discrimination’.
4.57
Some of the suggested amendments raised during the course of the inquiry are considered in the following sections.
Definition of ‘religious belief and activity’ and ‘religious body’
4.58
Both those in support of and in opposition to the bills took issue with a lack of clarity around the definition of ‘religious belief’, how to determine a ‘genuinely held’ belief, and other terms in the bills such as ‘religious body’.
4.59
Dr Barker submitted that ‘while any definitions of religion used when applying the provisions of the Religious Discrimination Bill must be a legal one’, this would not necessarily be ‘what ordinary people will have in mind when they think about the application of the Bill’. Dr Barker continued:
As the debate on the Bill has already demonstrated when people think about religion they think about the things people do and say in the name of their religion. In other words they focus on the manifestation of religion or the practice of religion rather than the belief.
…
This is not to say the Bill is unlimited. The actions covered by the Bill must be a religious activity. However this will be much more than going to mosque, temple, church or synagogue on the relevant holy day. Religion touches upon almost all aspects of a person’s life.
4.60
In her appearance at a public hearing, Dr Barker reiterated:
…the definition of 'religion' is very broad. The High Court [has] recognised the Church of Scientology, but hasn't since had an opportunity to consider the definition. Internationally it has moved on to be even broader…religion is a very broad concept and covers an awful lot of different beliefs and practices, many of which most people in Australia would be unfamiliar with and feel uncomfortable with.
4.61
The Equality Rights Alliance also argued for a definition of ‘religion’, in order to support the definition of ‘religious belief or activity’. The Alliance argued that currently, it is not clear where the ‘boundary between matters which constitute religious beliefs and non-religious thoughts or matters of conscience’ lies. The Alliance suggested that, as an alternative, the bills could be extended to ‘protect thought and conscience as well as religion’.
4.62
Ms Hellen Dalley-Fisher of the Equality Rights Alliance explained the Alliance’s concerns about the definitions as drafted. Ms Dalley‑Fisher told the committee:
…when you look at the definition as it stands currently in the Act, what you need is: he needs to believe in good faith that his beliefs are his beliefs, and he needs to genuinely believe that his beliefs conform with the tenets of his faith, of his religion. We don't have a definition of religion, so it's very difficult to start unpicking that. It's going to end up being a long and complicated process in the courts, which doesn't benefit anyone.
The flipside to that is that there will be people whose beliefs are extreme and problematic, from a safety, health or discrimination rights perspective, for other people, which will nevertheless be happily covered. So we need a balancing mechanism in the act which allows us to say, if we have two people's rights on the line—the right to non‑discrimination on the basis of religion and somebody else's right—there needs to be a provision for balancing that, preferably on the basis of comparative damage.
4.63
The Australian Chamber of Commerce and Industry (ACCI) expressed considerable concern about the definitions, observing that while fundamental to the bills, the definitions have a ‘circular nature’ and lack clarity for business owners who would seek to take ‘precautions to avoid conduct deemed discriminatory’. ACCI argued that the definitions:
…do little to inform and assist employers with determining whether certain characteristics or behaviour constitute a religious belief or activity.
…Legislation that imposes obligations on employers needs to be written with clarity and precision, avoiding or minimising such ambiguity…However, ACCI does acknowledge the difficulty in exhaustively capturing the meaning of 'religion' in a statutory definition due to the variety of forms, practices, and theological beliefs…Nevertheless, greater clarity is crucial for a definition which is an operative component of the major parts of the Bill, given its wide application, especially on small business owners, most of whom are unlikely to have any legal expertise (nor many doctorates in divinity).
…
ACCI is deliberately not making an argument about which faiths or beliefs deserve legal protection but rather highlights to the Committee the complexity and unpredictability of reverting to such a circular definition, instead of effectively defining the phrase in statute…the vague definition in the Bill leaves open the door to potential controversy and conflict in workplaces due to the burden placed on employers to discern whether purported beliefs or activities are legitimately religious in nature.
To minimise workplace conflict, which harms productivity, job security and both employers and employees, employers should not be forced into theological debates over the legitimacy of religious beliefs or activities but instead [be] supported by having an ability to clarify whether or not a particular belief, conduct, request or expectation falls under a statutory definition.
4.64
The Australian Christian Lobby (ACL) observed that the bills provide no substantive definition of what constitutes a ‘religious belief’ or ‘religious activity’. It was concerned that the courts could become ‘an arbiter of theology’, and suggested the bills include ‘an expansive and inclusive definition of religious activity’, and a sincerity or genuineness test for determining religious belief—similar to the bills’ approach to determining a ‘statement of belief’.
4.65
The Australian Association of Christian Schools (AACS) thought the religious discrimination bill could be strengthened by amending the definition of ‘religious belief or activity’ so as to protect a person from discrimination ‘because of their refusal to engage in conduct contrary to their religious belief’. This would help to protect an individual from unwanted pressure to act contrary to their religious convictions.
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The Human Rights Law Alliance (HRLA) also considered that without a more complex definition of ‘religious belief and activity’, it was likely to be ‘defined narrowly by the courts to be restricted to private personal observances of religious worship’. The HRLA called for the definition to be amended to:
…capture every dimension of religious belief and activity; worship, practice and teaching of religion in public and private, individually and communally as set out in Article 18 of the ICCPR…
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The Queensland Council for Civil Liberties also said that the definition was too broad, and suggested amendments to clarify that a ‘religious body’ was any ‘established for religious purposes’—because principles of freedom of association ‘apply to bodies having a religious objective, not that are simply conducted in accordance with religious principles’.
4.68
These concerns were addressed by the AGD, which observed that ‘religious belief or activity’ is broadly defined in the religious discrimination bill and explained that no Australian jurisdiction defines ‘religion’, ‘religious belief’ or ‘religious activity’, consistent with the approach of common law and acknowledging that ‘faith traditions may emerge or develop over time’.
4.69
The AGD highlighted issues that might arise from a narrower definition:
Any attempt to define the terms ‘religion’, ‘religious belief’ and ‘religious activity’ is likely to have significant unintended consequences as a prescriptive definition may be too rigid or become easily outdated (and may unintentionally exclude small and emerging religions from the scope of the Bill).
Statements of belief
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While the broad operation of clause 12 and the statement of belief provisions have been discussed elsewhere in this report, evidence to the committee also raised concerns about the wording of the clause and how it would apply if enacted.
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Equality Australia, for instance, argued that the statement of belief provisions would ‘lower-the-bar for acceptable conduct in the workplace and in education settings’. Equality Australia suggested that clause 12 ‘fails to extend an equal protection for statements made by non‑believers’:
Non-believers are only protected when making statements related only to the fact of not holding a religion. As the Explanatory Memorandum says, it is not intended that this definition would capture philosophical beliefs which do not relate to a lack of religious belief. This means that section 12 fails to conform with the requirements of article 18 of the ICCPR, given it does not protect the expressions of believers and non-believers equally.
4.72
Equality Australia concluded that clause 12 was a ‘provision which is beyond repair and must be removed’. In relation to subclause 12(2)(b), Equality Australia argued:
In partnering the word ‘harass’ with ‘threaten’, ‘intimidate’ and ‘vilify’ in subsection 12(2)(b), and omitting words such as ‘offend’, ‘insult’ and ‘humiliate’, it now becomes relatively clear that a great degree of latitude is being given to statements which could offend, insult and humiliate others. Moreover, although the word ‘harass’ could have had a broader meaning on its own, given its context, it is likely to be interpreted much more narrowly to conform with the words chosen as its partners, namely, ‘threaten’, ‘intimidate’ and ‘vilify’.
Coupled with an objective ‘reasonable person’ test that ignores how a particular group would be affected by certain statements, and a statutory note that states ‘a moderately expressed religious view that does not incite hatred or violence would not constitute vilification’, it becomes likely that statements which offend, insult or humiliate particular groups of people are being authorised by subsection 12(2)(b).
4.73
The Uniting Church in Australia argued that clause 12 as drafted is ‘too broad’, has ‘too narrow a bar’, and its interaction with existing legislated rights is unclear. Ms Sharon Hollis, President of the Uniting Church of Australia explained:
Even though it does, at one level, rule out the highest level of offending people, there's a lower level of offence or hurt that can be given to people if you claim you're making a statement of belief. We further think there is a dilemma in a person simply holding that to be their own held position of religious faith, because there is no way to test whether that statement of belief is, in fact, held by the wider religious community to which they belong. That makes it dangerous and therefore hard to tell whether what they are making is a statement of belief or simply a statement of dislike of people that is harmful.
4.74
While supportive of the bill in general, Dr Barker argued that the ‘statement of belief’ is the ‘most controversial and arguably the most problematic’ clause in the package of bills. While acknowledging that the clause supports the role of religion in the public sphere, as well as freedom of religion, Dr Barker suggested the clause is too broad and that removing the clause from the religious discrimination bill would not prevent religious people from holding certain beliefs, nor require them to reveal their religious beliefs.
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Conversely, Mr Lyle Shelton argued that clause 12 was not extensive enough, because it would not override ‘vilification’ provisions in state and territory legislation and therefore the clause does not ‘fully and properly protect statements of religious belief’.
4.76
The HRLA similarly opined that the provisions as drafted do not ‘deal with the true threat to statements of religious belief—vilification claims under state and territory laws’ and the ‘misuse of vilification laws by activists’.
4.77
The ECAJ, while supportive of clause 12, raised concerns in relation to ‘genuinely held beliefs’ and consensus views, stating:
Conflicts in matters as subjective and irreducible as fundamental faith and belief are simply not amenable to resolution by the application of any objective test, including reliance on the evidence of religious experts or reference to the beliefs of other members of the same faith community, or a segment of it.
‘Reasonable’ or ‘necessary’?
4.78
The bills would provide that potentially discriminatory activity be considered against a ‘reasonableness’ test—that is, an imposition of a condition would not constitute unlawful discrimination, if determined that a condition was reasonable in the circumstances.
4.79
Some submitters took the view that these provisions as currently worded do not meet the high threshold established by international law, specifically Article 18 of the ICCPR, where limitations on freedoms are prescribed by law and are ‘necessary’ (as opposed to ‘reasonable’) for protection from discrimination.
4.80
The AACS drew attention to the explanatory memorandum for the religious discrimination bill, which argues that the bill ‘only limits the right to freedom of religion and other rights in circumstances where it is necessary to do so’. The AACS suggested that ‘due to the non-alignment between the “reasonable” and “necessary” standards’, the statement in the explanatory memorandum is incorrect. The AACS recommended that clause 14 be amended to ‘clarify that the reasonableness test cannot operate to impose a limitation that would not be permitted under Article 18(3) of the ICCPR’, and that any limitation on expression of religious activity or belief be amended from ‘reasonable’ to ‘necessary’.
4.81
The sentiments expressed by the AACS were echoed by the HRLA, which said the reasonableness threshold was ‘far too low a bar for allowing discrimination’, was inconsistent with the ICCPR and therefore would ‘not effectively protect religious Australians from indirect discrimination’.
Burden of proof
4.82
In existing anti‑discrimination laws, the burden of proof is placed on the respondent to prove that a discriminatory law or action it has imposed is reasonable, because a ‘claimant is at a disadvantage if required to prove the reasonableness of an imposed condition compared to the respondent’.
4.83
However, it was submitted to the committee that the religious discrimination bill does not have a provision requiring a respondent to prove that a discriminatory provision is reasonable, despite previous iterations of the bills taking this approach.
4.84
The HRLA argued under the bills ‘an aggrieved person in a religious discrimination claim must prove that the condition is not reasonable’. The HRLA encouraged amendments to the bill to clarify that the person imposing a condition, requirement or practice must make the argument that it is reasonable.
4.85
Similarly, the Australian National Imams Council (ANIC) pointed to this apparent drafting oversight and argued for the alignment of the religious discrimination bill with other federal discrimination laws through the inclusion of a provision making clear the onus of the burden of proof.
4.86
Associate Professor Fowler likewise called for the reinstatement of burden of proof provisions, on those imposing the conditions, for consistency with other Commonwealth discrimination laws.
4.87
The AGD confirmed that the burden of proof provisions had been omitted in error from the current version of the bills. The AGD confirmed that there is work underway to rectify this, and that the burden of proof provisions will be made ‘consistent with all other indirect discrimination provisions’ in other Commonwealth discrimination legislation.
Reasonable adjustments
4.88
Those in support of the bills made repeated calls for them to be amended to include a ‘reasonable adjustments’ requirement. Such a clause would echo the provisions found in disability discrimination law, and would require the reasonable adjustment of conditions, most particularly in the workplace, to accommodate the religious beliefs or activities of an individual.
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Mr John Steenhof, Principal Lawyer with the HRLA, said that the inclusion of a reasonable adjustments clause would provide a way of ‘moderating and allowing for the conflict that is going to arise between an employer and a religious employee to provide that if reasonable adjustments can be made, they should’. Mr Steenhof continued:
That is in the Disability Discrimination Act. It is not in here. It is something that has been recommended internationally as a necessary part of any religious discrimination law, and it should be there.
4.90
Associate Professor Fowler argued that the inclusion of a reasonable adjustments clause in the bills would be in line with the approach taken in the Disability Discrimination Act 1992 (for which the courts have considered the ‘reasonable adjustments’ issue). It would also accord with the international human rights framework:
The Report of the Former United Nations Special Rapporteur of Freedom of Religion or Belief titled Elimination of all forms of religious intolerance provided to the sixty-ninth session of the General Assembly recommended the use of ‘reasonable accommodation’ provisions as a means to combat religious discrimination. The Report would support the inclusion of a reasonable adjustments requirement within the Bill.
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The HRLA argued that reasonable adjustment provisions have not been included in the religious discrimination bill, ‘despite clear applications directly relating to religious beliefs’. The HRLA elaborated that reasonable adjustment clauses would:
…give a balanced and reasonable protection to religious Australians in cases where for example, employers could easily make adjustments at little cost or hassle to accommodate religious beliefs but which would not place an undue burden where the adjustment would be costly or cause hardship.
4.92
The ACL echoed these views, suggesting the application and utility of such clauses to ‘religious belief is readily apparent, particularly in the workplace’. The ACL provided examples, saying:
Muslim employees who require time for their daily prayers, Christian employees who have a conscientious objection to working on Sundays and Jewish employees who are required to abide by certain kosher dietary requirements would all benefit from such a provision, which would impose a reasonable balance between the needs of an employer and the rights of religious Australians not to be discriminated against.
4.93
The ANIC similarly called for a reasonable adjustments clause for employers, and provided the following example of how such provisions could operate:
…where there are sufficient staff to allow flexible rostering that would accommodate a Muslim to attend for compulsory Friday congregational prayer, it would be discrimination if the employer refuses to make the reasonable adjustments. Conversely, if it was not reasonable – for example, there were insufficient staff or the continuous operations would be impacted – then an employer would not be required to adjust rosters to accommodate the religious obligations of some employees.
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The Anglican Church Diocese of Sydney also supported the inclusion of reasonable adjustment clauses, because the same principles ought to apply to religious belief and activity, as they do in other laws. The Church argued that such provisions should:
…require an employer to make reasonable adjustments for an employee’s genuine religious beliefs unless to do so would cause the organisation substantial hardship. … Conversely, if it was not reasonable – for example, if an emergency requires all staff to work a full weekend – then an employer would not be required to adjust rosters to accommodate the religious obligations of some employees.
4.95
Some witnesses opposed the inclusion of reasonable adjustment provisions. For example, Equality Australia suggested that such provisions are already implied in indirect discrimination provisions, therefore:
…providing that defence across the whole lot [of discrimination], including indirect discrimination claims, means that effectively you need to give a free pass or more latitude to a person who engages in misconduct based on a religious belief than you would to a person without that religious belief. Again, it goes back to the principle that our law should protect us all equally.
4.96
The Australian Industry Group (Ai Group) likewise posited that reasonable adjustment provisions are unnecessary. While acknowledging the reasonable adjustment provisions in disability law, Ai Group said ‘in terms of religious belief and religious activity, the legislation outlaws direct and indirect discrimination. We don't think it needs another very significant concept in there around reasonable adjustments’.
Ministerial discretion
4.97
The religious discrimination bill would provide that religious educational institutions, hospitals, aged care facilities, accommodation, disability service providers, and religious camps and conference sites do not engage in discrimination, if the conduct is in accordance with a publicly available policy, and conducted in good faith.
4.98
The bill further states that the minister may, by legislative instrument, determine requirements about a policy—including in relation to its availability.
4.99
Evidence to the committee urged for the ministerial powers in this regard to be amended, and for the minister’s power to be clearly limited to matters of form and procedure, rather than the substance of a policy.
4.100
While welcoming the transparency and certainty arising from the requirement for a publicly available policy, the AACS was concerned about the ‘expansive power’ which could be afforded to the minister, without sufficient parliamentary scrutiny. The AACS noted that no other equivalent delegated power exists in other Commonwealth discrimination law, which could ‘so substantively affect the operation of an exception or exemption applying to religious institutions or schools’.
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Christian Schools Australia and Adventist Schools Australia (CSA & ASA) were also of the view that such ministerial discretion is ‘clearly unacceptable and inconsistent with the requirements of international law’. The CSA & ASA further argued that ‘educational institutions should be able to rely upon the provisions in the Bill itself and not be concerned about the possibility of future limitations that are not subject to rigorous Parliamentary scrutiny’.
4.102
Similar concerns were raised by Associate Professor Fowler, who noted there was ‘no limit’ on matters which the minister could address in regulation, and therefore the minister could ‘potentially encroach upon or frustrate the operation of the exclusion as applied to a religious institution’. Noting that there is no equivalent power granted to any minister in any Australian jurisdiction and that it would provide considerable ministerial discretion in the future, Associate Professor Fowler recommended that these provisions be removed.
4.103
The National Catholic Education Commission (NCEC) also expressed some reservations about ministerial discretion, suggesting that the religious discrimination bill and its explanatory materials are not clear ‘regarding the breadth of the Minister’s power’, nor do they provide examples of how this power will operate in practice. The NCEC echoed the view of other submitters, stating:
…while it may be reasonable for the Minister to have the power to determine the manner in which the policy is made publicly available, it would not be legitimate for the Minister to determine the content of the policy. Catholic Education recommends that the Bill should be amended to ensure that the powers of the Minister in this regard are limited. At the very least, examples of how the Minister could exercise this power should be provided for greater clarity, transparency and certainty.
4.104
With regard to the ministerial powers, the AGD commented that the purpose of the regulation-making power was to:
…ensure that guidance can be provided if necessary to address specific concerns or issues identified by stakeholders or the community when either developing policies or accessing or using policies prepared by a religious body.
The ‘Folau clause’
4.105
Earlier drafts of the bills contained provisions which would have provided protections to employees for expressions of faith outside the workplace. Restrictions imposed by employers on such employees for that action would have been deemed unlawful discrimination, unless proven necessary to achieving reasonable results for the employer’s business or activities.
4.106
The bills before the committee do not contain these provisions. Some submitters in support of the bills expressed the view that the clause, known colloquially as the ‘Folau clause’, should be reinstated in the bills.
4.107
For example, the Catholic Women’s League Australia-New South Wales Inc. argued that ‘protection from discrimination against applicants and employees on the basis of religious belief or activity—inside or outside of the workplace—to be essential for the protection of religious believers’. The League advised that its members had:
…expressed concerns about their own employment, or the employment of their children or grandchildren who seek to express their religious beliefs publicly, including on social media. While the Israel Folau sacking made headlines, there are other occurrences of this that do not receive the same amount of attention or support.
4.108
The ACL noted that the Folau clause in previous drafts of the legislation was intended to ensure that a moderate expression of faith by an employee, in their own time, was their own business. The ACL therefore considered employee protections ‘necessary, reasonable and proportionate and should be included’ in the bills.
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The Presbyterian Church of Australia (PCA) supported the Folau clause, stating such a clause is necessary so it is ‘explicit that an employer must prove that a prohibition on employees from making statements of belief or unbelief is necessary for the employer’s activities and has the least restrictive effect in achieving that goal’.
4.110
The HRLA likewise argued for the re-inclusion of the Folau clause:
Removing this protection is a serious flaw of the Bill and is a clear signal that religious freedom rights have been placed secondary to commercial interests and are not worthy of protection from discrimination. No one would tolerate an employer seeking to control the full expression of rights connected with other protected attributes outside of work.
This decision also shows that the drafters have not considered the unique nature of the freedom of religious belief and activity. Making personal expressions of faith is of fundamental importance to freedom of religious expression and belief, which is an extremely strong and non-derogable right under Article 18 of the ICCPR. A moderate expression of faith by an employee outside of work in their own time should be of no concern to their employer.
4.111
Other submitters similarly held strong views about the re-insertion of the Folau clause in the package of bills. The Australian Catholic Bishops Conference (ACBC) argued that the absence of employment protections ‘contributes to a fear among ordinary people of faith of adverse action from employers’, resulting in forms of self-censorship. The ACBC concluded that this would have a ‘chilling effect on freedom of religion’ in the workplace, and would be in addition to reported incidents of religious discrimination already occurring in the workplace and other areas. The ACBC said that the bills:
…should protect the right of an employee to make moderate statements of belief without being penalised by their employer provided the statements meet the RDB’s test of not harassing, threatening, intimidating or vilifying a person or group.
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The Institute for Civil Society thought that employment protections should be included in the bills, because:
…the principle of protecting employees who make moderate non-vilifying statements of belief or unbelief from employer code of conduct overreach is a sound one. The Bill should provide a flexible proportionality standard which still allows employers to make employer conduct rules about employee speech for legitimate objectives such as avoiding inflammatory language and fights in the workplace. However, if challenged, the application of the rule would be unlawful discrimination under the Bill if the employer cannot show that the rule is necessary to achieve a legitimate goal of the employer in managing the workplace and that, in achieving that goal, the rule has the least restrictive effect on employee freedom to make moderate, non-vilifying statements of belief and unbelief. This will require employers to draft their codes of conduct to be reasonable and justified and avoid overreach.
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The Wilberforce Foundation, a coalition of practicing lawyers and legal academics, also recommended that the bills pass, subject only to amendments which would allow ‘employees to exercise their inherent rights to speak freely on matters of their faith outside of work hours without facing sanctions by their employers’.