Religious Freedom Bills - Second Exposure Drafts
6 February 2020
The Law Council provided a submission to the Attorney-General’s Department on the second exposure drafts of the Religious Freedom Bills (ie Religious Discrimination Bill 2019 (the Bill); Religious Discrimination (Consequential Amendments) Bill 2019; Human Rights Legislation Amendment (Freedom of Religion) Bill 2019).
This follows the Law Council’s earlier submission to the Attorney-General’s Department of 3 October 2019, regarding the first exposure drafts.
The Law Council recognises that there are opportunities to consolidate and strengthen federal protections against discrimination on the basis of religion. However, it holds significant concerns about the Bill due to its unorthodox features. A key focus of the Law Council’s submission was highlighting its concerns with the following provisions of the Bill.
- Clause 42 which provides that statements of belief will not constitute unlawful discrimination under any Commonwealth, state or territory anti-discrimination law. This privileges the manifestation of religious belief over other human rights such as freedom from discrimination on the grounds of sex, sexual orientation, race, disability and age.
- Clause 8 which departs from the well-established test for reasonableness in indirect discrimination law for resolving tensions between rights in a way that has the least harmful effect in the circumstances.
- Subclause 8(3) restricts relevant employers from making employer conduct rules concerning statements of belief outside the course of employment. This gives undue emphasis to the manifestation of religious freedom over other rights, and employers’ legitimate objectives of maintaining diversity and tolerance in the workplace.
- Subclause 8(4) provides new qualifying body conduct rules that have the same potential to override similar industry-wide objectives, including impeding legal professional bodies’ own ability to regulate the profession effectively and appropriately.
- Subclauses 8(6) and 8(7) concerning health practitioner rules override state and territory government policy decisions, existing directives and medical codes of conduct. They may encourage conscientious objections to health services where none previously existed, risk leaving vulnerable Australians without health care and are likely to be complex to administer.
- Interpretation provisions are unlike those in comparable legislation. The Law Council is concerned that there may be multiple ‘reasonable interpretations’ amongst a religion’s adherents regarding precisely what accords with its doctrines.
- Clause 11 provides a general exception for religious bodies from the Bill’s prohibitions on religious discrimination. The exception is available to a wide range of bodies, such as religious schools, which may discriminate on religious grounds against staff or students, religious charities, which may similarly discriminate against local volunteers, and religious-run homeless shelters, which may preference individuals of the same faith.