Pub­li­ca­tions

The Reli­gious Dis­crim­i­na­tion Bill: Ini­tial Observations

Fol­low­ing the Mar­riage Equal­i­ty debate and the ongo­ing Israel Folau saga, the issue of reli­gious free­dom has been giv­en some promi­nence. The Aus­tralian Gov­ern­ment has released what it describes as reli­gious free­dom reforms’ on which it is active­ly seek­ing sub­mis­sions. The pro­posed reforms will undoubt­ed­ly be the sub­ject of much polit­i­cal and legal dis­cus­sion in the com­ing months. Here are some ini­tial observations.

Key Points

  • The Reli­gious Dis­crim­i­na­tion Bill (Bill) seeks to extend reli­gious free­dom by pro­tect­ing against dis­crim­i­na­tion on the basis of reli­gion belief or activ­i­ty. The Bill also pro­tects against dis­crim­i­na­tion for not hold­ing a reli­gious belief; so being athe­ist or agnos­tic (and activ­i­ties asso­ci­at­ed with that). 
  • The Bill pro­hibits dis­crim­i­na­to­ry con­duct in a range of areas includ­ing employ­ment, edu­ca­tion, access to premis­es, accom­mo­da­tion, sport, and goods, ser­vices and facil­i­ties. (This brief arti­cle will focus on employment.)
  • The Bill is large­ly mod­elled on oth­er Com­mon­wealth dis­crim­i­na­tion leg­is­la­tion such as the Age Dis­crim­i­na­tion Act, Sex Dis­crim­i­na­tion Act and Dis­abil­i­ty Dis­crim­i­na­tion Act. 
  • It cov­ers both direct and indi­rect discrimination. 
  • The com­plaint process is the same as for claims brought under the Age Dis­crim­i­na­tion Act, Dis­abil­i­ty Dis­crim­i­na­tion Act and Sex Dis­crim­i­na­tion Act — a claim is ini­tial­ly brought before the Aus­tralian Human Rights Com­mis­sion and, if the com­plaint can’t be suc­cess­ful­ly con­cil­i­at­ed, the com­plainant may then pro­ceed to either the Fed­er­al Court or Fed­er­al Cir­cuit Court. 
  • Inter­est­ing­ly, there is also, in effect, an addi­tion­al restric­tion on large busi­ness­es’ (with a turnover of over $50 mil­lion) in rela­tion to the impo­si­tion of an employ­ee con­duct rule’, that is a rule which would have the effect of restrict­ing or pre­vent­ing employ­ees from mak­ing a state­ment of belief’ at a time oth­er than when the employ­ee is per­form­ing work. A large employ­er will not be able to use the rea­son­able­ness’ defence to indi­rect dis­crim­i­na­tion aris­ing from the impo­si­tion of such a rule unless it can demon­strate that com­pli­ance with the rule is nec­es­sary to avoid unjus­ti­fi­able finan­cial hard­ship’. Fur­ther, if the impo­si­tion of the rule is not con­sid­ered rea­son­able’ then the employ­er will also not be able to rely upon the inher­ent require­ments’ exception.

Ini­tial Observations

  • In the con­text of employ­ment, the Bill rep­re­sents a sig­nif­i­cant increase in reli­gious pro­tec­tions present­ly pro­vid­ed, par­tic­u­lar­ly when com­pared to sec­tion 772 of the Fair Work Act (unlaw­ful ter­mi­na­tion of employ­ment on the grounds of reli­gion), upon which Israel Folau is rely­ing (and which, in my view, will be unlike­ly to pro­vide him relief).
  • Giv­en the neb­u­lous nature of belief sys­tems and faith, pre­cise­ly what con­sti­tutes a reli­gion’ can be a vexed issue. It is not defined in the Bill. As such, the High Court deci­sion in Church of the New Faith v Com­mis­sion­er of Pay-roll Tax (Vic) (1983) 154 CLR 120, which adopt­ed a broad approach, will be instruc­tive. That might present a chal­lenge for employ­ers deal­ing with employ­ees who assert their belief in an eso­teric or emerg­ing reli­gion, the bona fides of which are yet to be established. 
  • The Bill also pro­tects reli­gious activ­i­ty’ – this could be some­thing of a mine­field to nav­i­gate. It is not defined in the Bill. Even reli­gious groups have their own dis­agree­ments (and some­times more seri­ous internecine dis­putes) as to whether a par­tic­u­lar activ­i­ty or prac­tice is reli­gious or cul­tur­al. Expert evi­dence may need to be called in some situations 
  • The inher­ent require­ments’ excep­tion will address the clas­sic sit­u­a­tion of the employ­ee who can’t work on cer­tain days or under­take par­tic­u­lar tasks (or per­form them safe­ly) due to their reli­gious beliefs. This excep­tion, which applies in oth­er areas of dis­crim­i­na­tion law in the con­text of employ­ment, is inter­pret­ed nar­row­ly — it needs to be some­thing essen­tial’ or an essen­tial ele­ment’ of the position. 
  • The restric­tion on employ­ee con­duct rules in respect of a state­ment of belief’ made when the employ­ee is not per­form­ing work’ is like­ly to gen­er­ate sig­nif­i­cant dis­cus­sion. There has been some dis­qui­et and debate about the intru­sive nature of some employ­er codes of con­duct in respect of var­i­ous types of pri­vate expres­sion (includ­ing reli­gious and polit­i­cal state­ments). Some of these codes do undoubt­ed­ly over­reach, pur­port­ing to reg­u­late pri­vate con­duct out­side the pre­rog­a­tive of the employ­er to give a law­ful and rea­son­able direc­tion’. There is, how­ev­er, already a body of Fair Work Com­mis­sion case law (much of it based on the deci­sion on out of hours con­duct in Rose v Tel­stra Cor­po­ra­tion Lim­it­ed (1998) AIRC 1592)) which defines the prop­er lim­its of such poli­cies or codes. 
  • The impo­si­tion of such a restric­tion is only pro­tect­ed if it impos­es unjus­ti­fi­able finan­cial hard­ship’ on the employ­er if employ­ees do not com­ply. That is a high bar for the employ­er to reach, par­tic­u­lar­ly giv­en the restric­tion only applies to large busi­ness­es’ which, by def­i­n­i­tion, will need to show that non-com­pli­ance by employ­ees will have a big­ger impact than it would on small­er enter­pris­es. The rel­e­vant test, how­ev­er, relates to the effect of non-com­pli­ance by employ­ees gen­er­al­ly, not just the employ­ee or employ­ees alleg­ing dis­crim­i­na­to­ry treatment. 
  • The con­duct rule restric­tion in the Bill seems to be a bespoke response to the Israel Folau sit­u­a­tion. That begs the ques­tion as to how that restric­tion would have impact­ed the Folau (or a sim­i­lar) situation.
  • The first issue that aris­es is whether the rel­e­vant con­duct (the Insta­gram post) occurred while per­form­ing work’. At first blush, it seems unlike­ly that it was. Lawyers for Folau con­tend it was in a pri­vate capac­i­ty and not con­nect­ed to his work as a pro­fes­sion­al rug­by play­er. The post was, how­ev­er, made on an Insta­gram account that was, at the rel­e­vant time, ver­i­fied (pre­sum­ably on the basis of his sta­tus as a rug­by play­er) and which con­tained some con­tent relat­ed to his rug­by career. Of par­tic­u­lar rel­e­vance would be the ques­tion of whether post­ing to a ver­i­fied social media account is the per­for­mance of work. If it is accept­ed that the work of a pro­fes­sion­al ath­lete is not lim­it­ed to the play­ing field, then as a corol­lary an argu­ment would be open that it extends to the per­for­mance of mar­ket­ing or asso­ci­at­ed pro­mo­tion­al activ­i­ties relat­ing to the sport, such as post­ing on social media. 
  • The next issue is whether the post involved was mali­cious or would, or be like­ly to, harass, vil­i­fy or incite hatred or vio­lence against anoth­er per­son or group of per­sons. Giv­en the intent of the Bill, and for­mu­la­tion of this test, a state­ment of belief would like­ly need to be par­tic­u­lar­ly egre­gious to fall foul of this provision. 
  • If it was accept­ed the state­ment did not occur while per­form­ing work, then the ques­tion aris­es whether employ­ees not com­ply­ing with the restric­tion would impose unjus­ti­fi­able finan­cial hard­ship’. In the case of a sport­ing organ­i­sa­tion, this would require evi­dence of sub­stan­tial loss of spon­sor­ship or oth­er rev­enue as a result of employ­ees act­ing in breach of the restric­tion. While spon­sors will some­times express gen­er­alised views on such mat­ters (no doubt being care­ful about the pos­si­bil­i­ty of acces­so­r­i­al lia­bil­i­ty under the Fair Work Act), query to what extent they will be will­ing to pro­vide admis­si­ble evi­dence in such a dis­pute. While loss of spon­sor­ship might seem axiomat­ic a court will require cogent evi­dence of the extent of such loss. 
  • Final­ly, the right of employ­ees to make pri­vate state­ments of reli­gious belief con­trasts with the strict restric­tions on pub­lic ser­vants express­ing polit­i­cal opin­ions on social media in a pri­vate capac­i­ty, as recent­ly upheld in the Baner­ji deci­sion. That con­trast might lead some to ask why free­dom of polit­i­cal expres­sion is seem­ing­ly less impor­tant than free­dom of reli­gious expression.

The Bill will no doubt be the sub­ject of a vig­or­ous debate in the com­ing months, one all employ­ers should fol­low closely.