Adrian Wong looks at the exposure draft of the Religious Discrimination Bill 2019 which has been released for public comment.
In response to what it described as a gap in the existing ‘statutory architecture’ of Australia’s federal anti-discrimination system, the Federal Government has released an exposure draft of the Religious Discrimination Bill 2019 and other associated Bills, for public comment.
If enacted, the draft Bill may make it difficult for employers to prohibit certain ‘religious activities’ in the workplace, unless reasonable to do so. It may also cause problems for employers who have implemented social media policies that apply to conduct outside of the workplace. In particular, if an employer wishes to prevent an employee from making certain statements of religious belief in their personal capacity (for example, on the employee’s personal social media), the employer will need to prove that the statement would cause it ‘unjustifiable financial hardship’. It will not be sufficient for an employer to point only to non-financial harm, such as damage to its reputation or its workplace culture.
The draft Bill is drafted in broadly similar terms to other federal anti-discrimination laws, prohibiting both direct and indirect discrimination on the basis of ‘religious belief or activity’ in a number of areas (including employment), subject to a number of exceptions. The draft Bill would also establish the position of the Freedom of Religion Commissioner.
Like other federal anti-discrimination laws, complaints of religious discrimination would be first made to the Australian Human Rights Commission, and then ultimately to the Federal Court or Federal Circuit Court.
‘Religious belief or activity’ is broadly defined in the draft Bill to mean ‘holding a religious belief; engaging in a lawful religious activity; not holding a religious belief; or not engaging in, or refusing to engage in, lawful religious activity.’ The terms ‘religion’ or ‘religious’ are not separately defined. The Explanatory Notes state that the expression of a religious belief may also include engaging in a religious activity, such as evangelising.
Under the draft Bill, making certain ‘statements of belief’ will not constitute discrimination under an anti-discrimination law. ‘Statements of belief’ is also broadly defined and includes a statement by a person who does not hold a religious belief. However, this protection will not extend to statements that are malicious, likely to harass, vilify or incite hatred or violence against another person, or that encourage conduct that would constitute a prescribed offence.
For private sector employers with an annual revenue of at least $50 million, the draft Bill introduces a new provision that the employer must satisfy if they have a workplace policy that regulates any ‘statements of belief’ that its employees might make outside of the workplace. These employers will need to establish that compliance with such a policy is necessary for the employer to avoid ‘unjustifiable financial hardship’, unless the statement is malicious or otherwise excluded as described above. This specific requirement would not apply in relation to any statements of belief made in the workplace, although any prohibition on making such statements would still need to be reasonable.
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