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Religious Freedom Legislation

A second draft Religious Discrimination Bill 2019 was released on 10 December 2019, with many changes from the first draft.

The draft Bill seeks to replace the traditional method of protecting religious freedom by exemption from anti-discrimination laws, which protect persons from discrimination based on attributes such as age, sex, sexual orientation, gender identity, and marital status. The law allows certain religious bodies to make decisions that conform to their religious beliefs. It aims to safeguard against the threat of discrimination claims in instances where a religious body is acting in accordance with its beliefs.

Religious bodies are the following bodies conducted in accordance with the beliefs of a particular religion: educational institutions (schools and universities), public benevolent institutions and any other body which does not engage solely or primarily in commercial activities. In other words, schools, universities and public benevolent institutions are considered to be religious bodies even if they engage in commercial activities. However, religious hospitals and religious accommodation providers (including aged care providers) are treated separately by the draft Bill and are not religious bodies.

A religious body does not discriminate against a person by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the beliefs of that religion. This means, among other things, that religious bodies could give preference to persons of the same religion as the religious body. For example, a religious school could give preference when enrolling students to those who share its faith. Hospital, aged care and accommodation providers could give preference to persons who share their religious beliefs when making staffing decisions.

The draft Bill now allows religious camps and conference centres to take faith into account when deciding whether to provide accommodation provided that they act in accordance with a publicly available policy.

The draft Bill provides protection for individuals against discrimination on the grounds of religious belief or activity in certain areas of public life including employment, education, access to premises, provision of goods and services and accommodation. Religious activities may include expressing religious beliefs, such as through evangelising or making statements of belief, where adherents of that religious group are required, or encouraged, to evangelise. This will provide greater protection to speech that is practised within a religion.

If the draft Bill becomes law, employers will have to consider whether workplace policies or conditions that limit their employees’ freedom to express their religious beliefs are reasonable. For large employers (with a turnover of over $50 million), there will be an additional requirement to demonstrate that compliance with the condition was necessary to prevent unjustifiable financial hardship, where the condition operates to prevent religious expressions of belief in a private capacity.

We await with interest progress in this area. Will there be a further draft Bill released? Will the Government introduce a Bill to the Parliament? Or will the whole idea of a Religious Discrimination Act be abandoned?

Stephanie McLuckie, Solicitor

David Ford, Partner

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