INSIGHT

Controversial Religious Discrimination Bill back in the spotlight

Employment & Safety

In brief 2 min read

The Federal Government has released second exposure drafts of its proposed legislation on religious discrimination, as part of another round of public consultation.

How does it affect you?

  • All employers should be keeping a close eye on the progress of the proposed legislation, given that the protections as currently drafted extend across many areas of public life (eg employment, access to premises and provision of goods, services and facilities).
  • Employers should take the opportunity to ensure their policies relating to all forms of discrimination are up to date, and should especially watch out for policies that touch on standards of dress, appearance and behaviour/conduct.

Background

The Federal Government released the first exposure drafts of its legislative package to 'provide comprehensive protection against discrimination on the basis of religious belief or activity' in August 2019, and invited submissions from the public. Following the receipt of approximately 6,000 submissions, the Government has now released second exposure drafts and sought further submissions.

What has changed?

The key changes in the second exposure drafts relate to religious bodies and organisations. However, general obligations in the proposed Bill that employers should be aware of include:

  • Indirect discrimination in the employment context could include the imposition of 'employer conduct rules' (being a rule imposed by an employer that relates to standards of dress, appearance or behaviour) if those rules are not reasonable.
  • For employers with revenue of at least $50 million per year, other than public sector employees, an employer conduct rule that prevents an employee from making a statement of belief other than in the course of the employee's employment is deemed to be unreasonable unless necessary to avoid unjustifiable financial hardship to the employer.
  • The wording has changed slightly in the second exposure draft to address concerns that the proposed legislation would potentially interfere with other obligations and responsibilities in relation to conduct outside work hours (such as during meal breaks or at office Christmas parties or other functions).
  • Conduct rules imposed by qualifying bodies (including employers such as universities, vocational training providers, professional organisations and other bodies that grant professional authorisations, certifications or qualifications) that restrict statements of belief are also deemed to be unreasonable unless compliance with the rule is an essential requirement of the relevant profession, trade or occupation.
  • Certain religious bodies, such as churches, faith-based schools and charities, will be able to 'preference' persons of the same religion without this being regarded as discrimination under the proposed Bill. The scope of preferencing is somewhat reduced for religious hospitals, aged care facilities and accommodation providers, but these bodies will still be able to take faith into account in their staffing decisions.

What's next?

Submissions for this round of consultation closed on 31 January 2020. The Government will consider the further round of submissions, and possibly make further refinements, before introducing the Bills into Parliament (although a revised timetable for that has not yet been confirmed).