The Explanatory Memorandum to the Bill states:
"This Bill will introduce comprehensive federal protections to prohibit discrimination on the basis of a person’s religious belief or activity in a wide range of areas of public life, including in relation to employment, education, access to premises, the provision of goods, services and facilities, and accommodation. This will ensure that all people are able to hold and manifest their faith, or lack thereof, in public without interference or intimidation".Protected "religious activity" is not specifically defined in the Bill but the explanatory note states that “expression of a religious belief” may be included.
In a similar vein to current Commonwealth discrimination legislation concerning race, sex, age and disability, the Bill prohibits both direct and indirect forms of discrimination as well as victimisation.
Direct discrimination will occur when a person treats, or proposes to treat, another less favourably than someone who does not hold the religious belief in circumstances which are not materially different. Indirect religious discrimination will occur in circumstances where a condition, requirement or practice is broadly imposed which is either unreasonable or disadvantages a person on the basis of their religion.
Advocates of the Bill argue that it provides much needed protections against religious discrimination in Australia, in line with the other Federal anti-discrimination laws already in place. The Bill will also consolidate the current piecemeal religious discrimination protections offered in some State and Territory legislation and give credence to Australia's obligations under the International Covenant on Civil and Political Rights.
However, those opposed to the Bill argue that the current legislative framework is sufficient, and that the Bill gives religious groups protections to lawfully discriminate against others. The latter argument is oft-cited, given the Bill's origins during the same-sex marriage debate. Further, in light of Israel Folau's unlawful termination claim (which we discussed in an earlier article) others have argued that the proposed legislation seems specifically tailored to providing those in a similar position recourse under Federal anti-discrimination legislation.
While the Bill provides that an employer can impose such a condition if it is necessary for them to avoid "unjustifiable financial hardship", this is a very high bar. In proving this, the onus will be on the employer to demonstrate that the condition is necessary.
Notwithstanding, the prohibition against discrimination will not be imposed in circumstances where the statement of belief is malicious, or would harass, vilify, or incite hatred towards another person or group of persons, or would encourage conduct constituting a serious offence.
If the proposed legislation was in force, in cases such as Israel Folau's, Rugby Australia's Player's Code of Conduct may have been held to be discriminatory and unreasonable unless they could prove the following:
Accordingly, we will be watching the progression of the Bill with interest, and if passed, will be recommending that companies review their codes of conduct and associated policies to ensure that they are not at risk of infringing the employer conduct rule provisions, or otherwise allowing for indirect discrimination to occur.
1 John Kehoe, 'Business Fears Israel Folau Religious Freedom Law', Australian Financial Review (Article, 12 September 2019).