Australia: Religious Discrimination Bill: enabling persons of faith to discriminate

Last Updated: 21 September 2019
Article by Zeb Holmes

The Coalition has released its long-awaited religious discrimination bill, making it unlawful to discriminate against persons of faith for religious statements that are offensive to others.

Many believe the Bill has been informed by the recent Israel Folau saga, and opinion is divided about whether the Rugby star would be protected by the law if it were applied to his situation.

Protections

The draft legislation includes provisions preventing discrimination against persons of faith in a wide range of areas, including employment, education, accommodation, sports, and access to goods, services, premises, facilities and clubs, whether public or private.

It means persons of faith are generally permitted to make religious statements even if they offend marginalised groups, without fear of repercussions.

In order to discriminate against persons of faith, large businesses with a turnover of $50 million or more need to prove that to do otherwise would cause "unjustifiable financial hardship to the business".

To attract protection, religious statements must be made "in good faith" in accordance with the teachings of the particular religion.

They will not be protected if malicious, would harass, vilify or incite hatred against a group or advocate for the commission of a serious criminal offence.

Equality Australia said the act enshrined "religious exceptionalism" by giving new privileges to people of faith, while overriding existing protections from discrimination for others.

Forms of discrimination

When a workplace takes adverse action against an employee or potential employee specifically because of their religion this would be direct discrimination.

Indirect discrimination is more subtle but can also contribute to a group being disadvantaged. This comes in the form of creating workplace practices or a workplace culture which makes it harder to be a religious person, even though there may not be any direct discrimination. A workplace which condones sexist jokes or frequently holds all-male social events, could be guilty of indirect sex discrimination.

Although the business might not directly refuse to hire women, the effect of these policies would be to make it more difficult to be a woman person in the workplace.

Practical effects

There are still many question marks in how the bill will be applied, or what final form it will take, with religious groups and LGBT and other activists vowing to continue lobbying the government.

The first point is that an employer's code of conduct could not prevent employees from making statements of belief in non-work times.

While it seems that the bill came out of the Folau saga, the exemption for business that show financial hardship could mean that these laws would have made no difference. The ARU would just need to prove that their business was at risk of losing customers or sponsors as a result of controversial religious views being shared.

The proposed laws will allow religious schools the right to discriminate only on the grounds that an employee was not of that institution's faith but would not allow them to deny employment because of age, gender or sexuality. Religious bodies will still need to abide by other discrimination laws.

The bill has a specific section allowing conscientious objections by health practitioners. This could allow individual doctors to refuse to perform a wide range of services on religious grounds, including abortion, assisted suicide and procedures for transgender patients.

In terms of indirect discrimination, the bill means that an employer needs to make sure that they did not disadvantage people of a particular religious belief, such as by requiring Jewish employees to attend a Friday afternoon meeting if they would usually leave early to observe the Sabbath.

As the bill defines religious activity quite broadly, including dress, it could be the case that an employer could fall foul if they require everyone to wear a suit rather than a religious garment, if they cannot prove that this would impact on customers.

Broken promises

In July, Porter claimed the bill was "not intended to displace state law", responding to concerns from LGBT advocates warning it could undermine state protections against vilification.

The bill, released on Thursday, explicitly overrides Tasmania's Anti-Discrimination Act, which prohibits statements which "offend, insult or humiliate" based on protected grounds including gender, race, age, sexual orientation, disability and relationship status.

The explanatory memorandum claims the Tasmanian law needs to be overridden "given its broad scope and demonstrated ability to affect freedom of religious expression".

Provided a person is expressing a genuinely held religious belief in good faith, that Tasmanian provision will not apply – breaching Porter's commitment.

Equality Tasmania spokesman Rodney Croome said that Canberra was "directly interfering to weaken a Tasmanian human rights law that protects vulnerable people".

"A significant proportion of complaints under this section are from people with disability, so Canberra is directly weakening protections for them, as well as for women, LGBTI people and anyone else who falls foul of traditional religious doctrines," Croome said.

Political response

The Greens have warned that the bill could be a "Trojan horse for hate," and emphasized that they will not be supporting it in parliament.

"The far-right of Morrison's party are still trying to get their way, chipping away at the rights of LGBTIQ+ people and other minorities," Greens senator Janet Rice said. "Any bill that comes to the parliament must ensure all Australians are treated equally."

The Labor party, meanwhile, has positioned itself firmly on the fence regarding the new bill, with shadow attorney general, Mark Dreyfus, saying it was too early to signal whether Labor would support the bill.

"Unlike the government, which has only been having an internal debate, Labor will be listening carefully to the whole Australian community, Labor will be consulting deeply and widely, which is what the government should be doing too," Dreyfus said.

This basically seems like the Labor party saying that they are unable to judge the legislation on its merits and their own moral compass, needing to wait to see whether it will be popular enough for them to support.

The other minor parties have not all signalled their voting intentions. The Bill will be a bitter battle between the right wing of the Coalition and other politicians who do not want to see religious freedoms given a privileged position over other rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions