On 10 April 2019, the Federal Government requested that the Australian Law Reform Commission ("ALRC") undertake a "comprehensive review of the framework of religious exemptions in anti-discrimination legislation across Australia".
This referral follows the Religious Freedom Review Report of the Expert Panel, which we reported on in our December newsletter edition.
The Australian Government released the Report of the Expert Panel and the Government's Reponses to the Review on 13 December 2018. In the Response, the Government announced that due to "the complexity of the issues surrounding the framework of exemptions for religious bodies in anti-discrimination law in all Australian jurisdictions", it was envisaged that a referral may be made to the ALRC.
Terms of Reference
The Government has requested that, in particular, the ALRC consider:
what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australian law should be made in order to:
- limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
- remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.
In a media release the Attorney General, , set out the scope of the Government's reference to the ALRC as follows:
In undertaking this reference, the ALRC should include consideration of Commonwealth, State and Territory anti-discrimination and vilification laws and the Fair Work Act.
To avoid doubt, religious institutions for the purposes of this reference includes bodies established for religious purposes (including faith-based institutions) and educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed.
The ALRC should identify and have regard to existing reports and inquiries including:
the Report of the Expert Panel on Religious Freedom (Religious Freedom Review), particularly recommendations 1, 5, 6, 7 and 8;
- Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129); and
- any other inquiries or reviews, including state and territory inquiries or reviews, that it considers relevant.
The ALRC should also have regard to religious exemptions in anti-discrimination laws and their interaction with 'religious belief or activity', including the expression of religious and moral views, insofar as they are a ground of discrimination (as proposed by the Religious Freedom Review, particularly in recommendations 15 and 16, and in accordance with Recommendation 2).
The ALRC has publicised the following important dates:
- 10 May 2019: "on the scope of the inquiry and any issues relevant to the terms of reference" due
- 15 October 2019: submissions to the ALRC Discussion Paper due
- 2 September 2019: ALRC Discussion paper scheduled to be released
- 10 April 2020: ALRC Report due
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